Summary: We will not investigate this complaint about the Council’s investigation into smoke pollution because there is not enough evidence of fault.

The complaint

1. Mr X complains about the Council’s investigation into his reports of smoke pollution. He also complains about its poor communication and complaint handling.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. A statutory nuisance includes smoke emitted from premises so as to be prejudicial to health or a nuisance. There is a long-established legal principle that ‘nuisance’ must be judged on how it affects the average person, not someone who, for whatever reason, is particularly sensitive to it.
8. A council must take such steps as are reasonably practicable to investigate a complaint of nuisance.
9. Mr X complained of smoke from a log burner affecting his health and causing a nuisance.
10. Mr X’s complaints about the Council’s actions and decisions prior to 10 March 2024 are out on time. I consider there is no good reason to exercise discretion to consider any late complaints. It would have been reasonable for Mr X to contact us sooner.
11. By letter of 28 March 2024 the Council outlined its testing of the relevant log burner. From its observations it decided the smoke was unlikely to seriously and unreasonably interfere with Mr X’s property and it had not established a statutory nuisance. I note this letter does not explain why the Council considered the smoke was not prejudicial to health. However within the further documents provided I note the Council said the log burner was installed responsibly, it was common for smoke to be released until the system was up to a high temperature and, although Mr X had medical conditions that may be exacerbated by smoke, it had to judge against the average person’s response. The Council further explained the use of log burners was permitted, some smoke was to be expected and it had no evidence anything but dry clean wood was being used. I consider this provides sufficient reasons as to why the Council decided the smoke was not prejudicial to health. There is not enough evidence of fault in the Council’s decision making to justify an investigation.
12. Any failure of the Council to notify Mr X of the testing or allow him to observe would not have affected its decision outcome. I therefore consider any injustice arising from this is not significant enough to warrant an investigation.
13. It is up to the Council how to investigate and what evidence to take into account. Mr X says the Council told him its officer had to witness the nuisance themselves and so would not accept his video evidence. This is a judgement the Council would be entitled to reach.
14. In December 2024 the Council told Mr X it would take no action on further reports of smoke unless there was a material change to circumstances investigated the previous year. This is a judgement the Council is entitled to reach.
15. It is not a proportionate use of our resources to investigate the Council’s communications or complaint handling when we are not investigating the substantive issues.

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Final decision

16. We will not investigate Mr X’s complaint because there is not enough evidence of fault.

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Investigator's decision on behalf of the Ombudsman