Summary: We will not investigate this complaint about the Council’s investigation of smoke nuisance from a neighbour’s wood-burning stove. There is insufficient evidence of fault which would warrant an investigation.

The complaint

1. Mr X complained about the Council’s investigation of his complaint about smoke from a neighbour’s wood-burning stove. He says the Council failed to take sufficient action and that it didn’t appreciate his health conditions which the smoke was affecting.

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The Ombudsman’s role and powers

2. 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
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered the information provided by the complainant and the Council’s response.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mr X says he complained to the Council about a neighbour’s wood-burning stove causing smoke pollution. He says he can smell the smoke in his home and that he suffered an asthma attack in 2024 which he says is directly due to the smoke as he has not been hospitalised for this before.
6. The Council investigated the report and visited the neighbour. They checked the type of fuel being burned and its installation. They told Mr X that the Council has no smoke control areas and that traditional open fires and stoves are permitted within its area. The smoke is from a domestic property and the environmental protection Act 1990 only refers to smoke and dust emissions from premises, this does not include domestic heating appliances.
7. The Environmental Protection Act 1990 places a duty on councils to investigate reports of nuisance and to take reasonable steps to investigate any complaints of statutory nuisance that it receives. The task of detecting statutory nuisances is usually delegated to Environmental Health Officers, who are often made aware of statutory nuisances by complaints from residents.
8. If the Council had considered the issue to be a statutory nuisance it would be required to serve an abatement notice. There is no duty to serve a notice if the Council decides there is no statutory nuisance, as in this case. These notices carry a right of appeal to the magistrates court and the resident can appeal if they believe the notice was unreasonable or incorrectly served. This means the Council would have to have a case which could be reasonably defended at appeal and if there is not sufficient evidence it should not serve a notice.
9. Statutory nuisance must be considered in the context of an average person, in a reasonable state of good health and having a normal pattern of everyday activity. Statutory nuisance cannot be used to make people do more than might reasonably be expected of them because someone else may be more sensitive than the average person, for example if a night-shift worker trying to sleep during the day, or someone with respiratory problems being more sensitive to dust or smoke. The Council could not take any particular sensitivities of Mr X’s household into account.
10. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.

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Final decision

11. We will not investigate this complaint about the Council’s investigation of smoke nuisance from a neighbour’s wood-burning stove. There is insufficient evidence of fault which would warrant an investigation.

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Investigator's decision on behalf of the Ombudsman