This fact sheet is aimed primarily at people who have concerns that the council is not taking action about the nuisance from dust or smoke they are experiencing and may be considering making a complaint to the Ombudsman.
We hold councils to account for services they pay other organisations, including private companies, to carry out on their behalf. This means we can still investigate complaints about those services.
I am suffering from dust or smoke coming from nearby premises or sites and I am unhappy that the council has done nothing about this. Can the Ombudsman help me?
Yes, in some circumstances. We cannot overrule the council’s decision on whether or not to take action, as it isn’t our role to say whether the dust or smoke that you are complaining about is a nuisance in law or whether action must be taken to reduce it. But, if you believe that the council did something wrong in the way it investigated your complaints about this and can also show that it caused you problems, then you can complain to us and we can look into it.
If you are suffering from nuisance from dust or smoke, you need to let the council know as soon as possible giving details of where it is coming from and the dates and length of time that it occurred. The council cannot immediately intervene to stop it, as it needs to investigate to establish the nature of the problem.
How do I complain?
You should normally complain to the council first. Councils often have more than one stage in their complaints procedure and you will usually have to complete all stages before we will look at your complaint.
Then, if you are unhappy with the outcome, or the council is taking too long to look into the matter – we think 12 weeks is reasonable – you can complain to us.
You should normally make your complaint to us within 12 months of realising that the council has done something wrong.
If you can consider my complaint what will the Ombudsman look for?
Local authorities have a duty to take “reasonably practicable steps” to investigate complaints about various nuisances, including dust arising from industrial or business premises, or smoke from premises, which are prejudicial to health or a nuisance.
They have no specific powers to deal with domestic bonfires, although if frequent and smoky they may cause serious nuisance.
Dust and smoke cannot be easily measured and it is for the council to assess if they amount to a ‘statutory nuisance’ in law and, if so, to take action such as issuing an abatement notice. That process can take some time, particularly if the timing of the nuisance is unpredictable.
Some people are troubled by unpleasant dust or smoke from time to time, especially those living in rural farming areas or near a building site, and occasional incidents would not normally be regarded as a statutory nuisance.
We consider whether the council has done something wrong in the way it has investigated your complaint and, if so, what effect this had and what problems this led to for you. For example, we assess if the fault is likely to have made a difference to the problems you experienced. Some faults we might find are that the council:
- did not investigate the complaint properly and establish whether there was a problem from the dust or smoke, or established there was a significant problem but failed to take action on it
- took too long to investigate the problem or failed to take enforcement action when informal attempts to resolve the problem failed
- did not take into account the relevant law, policy or guidance
- did not explain the outcome of its investigation to you, or
- made a decision based on inaccurate, incomplete or irrelevant evidence or failed to consider evidence that was available.
What happens if the Ombudsman finds that the council was at fault?
It depends on the fault and what the consequences are for you. We cannot force the council to take action to prevent the dust or smoke. But, if we find that you still suffer from them because of the council’s fault or suffered for longer than was necessary, we may ask the council to take steps to address the problem. If it has established that there is a serious problem but has failed to take action, we may recommend that the council re-evaluate the evidence and consider issuing an abatement notice.
If the council has not investigated the complaint properly or has failed to consider evidence that it should have, we may suggest that the council uses its own officers or outside specialists as independent witnesses to evaluate the dust or smoke. In exceptional cases, where it is not possible to reduce the harm caused, or if the nuisance has now stopped, but we find that you suffered from it for longer than necessary, we may ask the council to pay you a financial remedy. We may also ask for a financial remedy if you have had a lot of time, trouble or expense in pursuing your complaint.
Where we find fault with the council’s procedures we will often recommend that the council introduces changes, so that the same problem does not occur again in the future.
Examples of some complaints we have considered
Other sources of information
If you wish, you can consider taking your own action about the nuisance by complaining directly to the magistrates’ court, under Section 82 of the Environmental Protection Act. But before doing so we suggest that you check the following information sources and take some legal advice.
Your local council’s website may have information about statutory nuisance and enforcement in the section on Environmental Health or Environmental Services.
Our fact sheets give some general information about the most common type of complaints we receive but they cannot cover every situation. If you are not sure whether we can look into your complaint, please contact us.