The Ombudsman's final decision
Summary: We will not investigate the complaint about the Council’s investigation into smoke and chemical odours, because we are unlikely to find fault.
The complaint
Mr X complains about the Council's investigation into smoke nuisance and he is unhappy with its complaint handling.
The Ombudsman’s role and powers
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 (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. 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.
The Council says it met this duty and investigated properly. Mr X kept diary sheets. Council officers visited the source of the emissions four times. They witnessed smoke on two of the visits but in their professional opinion neither instance amounted to a statutory nuisance. It says the officers identified the source as a solid fuel heater unit. The Council found the specific make and model of the unit, and the fuel being used, is exempt from the smoke control area restrictions.
I have found no evidence of fault in how the Council took its decisions and I therefore cannot question whether the decisions were right or wrong.
It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
Final decision
We will not investigate Mr X’s complaint because there is not enough evidence of fault.
Investigator's decision on behalf of the Ombudsman