Summary: Miss X complained about the Council’s investigation into smoke entering her property. She complained about the lack of resolution and service from the Council. She confirms that she has spent much time in dealing with this issue along with disruption to the enjoyment of her property. We found the Council at fault as it failed to promptly act. The Council will take action to apologise and make payment to Miss X to recognise the injustice caused.

The complaint

1. Miss X complains about the Council’s investigation into smoke entering her property. She is unhappy with the lack of resolution and service from the Council.
2. She confirms that she has spent much time in dealing with this issue and the Council has not always contacted her back as promised. The smoke issue has also impacted on her health and enjoyment of the property.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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What I have and have not investigated

5. Miss X’s property is in Broxtowe Borough Council’s area of responsibility. Erewash Borough Council confirms that it provides building control services to Broxtowe Borough Council under delegated authority.
6. As Miss X’s property is not in Erewash Borough Council’s area, it does not have the authority to investigate the matter as a statutory nuisance. This would be the responsibility of Broxtowe Borough Council, and I note that Miss X has raised a complaint about this to it.
7. I have therefore considered the complaint against the service expected from Erewash Borough Council. Any complaint against Broxtowe Borough Council, would be the basis of a separate complaint.

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
9. I have also considered the relevant statutory guidance, as set out below. In addition, I have considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

10. Councils have a general duty to tackle anti-social behaviour (ASB). But ASB can take many different forms; and when someone reports a problem, councils should decide which of their powers is most suitable.
11. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.

Activities a council might decide are a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells and fumes from industry, trade or business premises;

For the issue to count as a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other property; and/or
• injure health or be likely to injure health.

12. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
13. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.
14. The law says that a potential nuisance must be judged on how it affects the average person. Councils cannot take action to stop something which is only a nuisance to the complainant because they have special circumstances, such as a medical condition which makes them unusually sensitive to noise or fumes.
15. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
16. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court decides they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
17. This process does not involve the council, but it is good practice for councils to tell complainants about their right to take private action.

What happened

18. In October 2024, Miss X reported the issue of smoke entering her property from a neighbouring property to the Council. In November 2024, it was reported that a log burner had not been registered correctly, and this had now been certified.
19. In January 2025, she met with the Council about the issue. In March 2025 after Miss X had written to her Member of Parliament, the Council wrote to her neighbours recommending work to be completed.
20. In July 2025, the Council finalised its response to the complaint, confirming that works were due to be completed at the neighbouring property.
21. Miss X reported in September 2025 the issue has continued.

Analysis

22. When Miss X contacted the Council in October 2024, she made clear that she wished to seek advice on the matter. Later in the same month, she told the Council ‘Local councils are legally obliged to investigate any complaints made under the Environmental Protection Act 1990 relating to public health and nuisance issues, which include smoke and fumes from fires or stoves’.
23. I note the Council has investigated this matter as a building controls complaint rather than a statutory nuisance issue, as this is the responsibility of Broxtowe Borough Council. However given the nature of the request from Miss X and the guidance above, I would have expected the Council to have told Miss X to raise this matter with Broxtowe Borough Council. It could have also managed her expectations better for what it could do or jointly managed the investigation with Broxtowe.
24. The failure to do so, has caused confusion to Miss X and meant that she has felt that she was ignored and dismissed by the Council. This is because it has not investigated the matter from a statutory nuisance point of view, even when Miss X has raised issues into this and the legislation which relates to it. I find this to be fault by the Council which has caused Miss X injustice in the form of distress.
25. The Council in its response to the complaint admit that it could have communicated better and there were delays in some of its responses. At the beginning of 2025 for example, there was a three month delay in the Council taking formal action.
26. Following this Miss X also had to follow up on action with the Council in April and May 2025. Overall, the failure to take responsibility and update Miss X thoroughly throughout the investigation, has impacted Miss X by causing her avoidable distress.
27. Our guidance on remedies states that when there is clear delay or inaction from a Council which has had an impact on a complainant’s life, we can make an award. This award per month is to consider the loss of amenity and communication faults.
28. I find that this issue has impacted Miss X, by reducing her enjoyment of the property, and the Council’s action or lack of, have contributed towards the delay in this matter being potentially resolved.
29. I have considered the matter from October 2024 when Miss X first raised this issue, through to July 2025 when the Council completed its response. I recognise that Miss X has continued to raise concerns to both the Council and Broxtowe Borough Council beyond this date. However, I find that after this point, the Council’s building control investigation finished, and the matter reverted to a statutory nuisance complaint which would be the responsibility of Broxtowe Borough Council to investigate.
30. I have also considered the issue with smoke relates to a log burner, which is only active during the winter months (November through to March or five months). Also, that it is only active for certain points of the day and night. It would not be proportionate to therefore make an award against the Council for the full period as it included months where the log burner would not have been in use.
31. I have therefore found the Council should make an award of £100 per month for five months, due to the inaction it caused over the course of the complaint overall. This award includes the previous award offered by the Council of £150 and is not in addition to this. The Council should also apologise to Miss X for the inaction in its investigation and the distress this issue has caused Miss X.

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Action

32. Within four weeks of the final decision, the Council has agreed to:
1. Provide Miss X with an apology for the avoidable distress its inaction has caused during the investigation into the smoke issue at the property
2. Pay Miss X a total of £500 for the distress this issue has caused and for the loss of amenity
33. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I find fault causing injustice. The Council will apologise to Miss X and make payment to her for the injustice caused.

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Investigator's decision on behalf of the Ombudsman