Green Building Forum - Smoke Nuisance â€“ is wood wood?

Smoke Nuisance â€“ is wood wood?

db8000 — Wed, 14 Jan 2015 17:27:37 +0000

Mikeee,

A few observations (as a solicitor).

County Court is one judge. That person will be a generalist and may have no experience of environmental matters.

Both sides can use the same witness; "there is no property in a witness". Witnesses should only be called after the they have put in a written statement. Don't bank on being able to call any witnesses that haven't put in statements. They are likely to be refused by the judge.

Support in the court room is good, it sends a signal to defendant and judge.

Whilst the defendant says he'll call the EHO, he is free to change his mind. The only way to guarantee EHO's attendance is to witness summons him.

That something meets BC regs doesn't stop it being capable of being a nuisance.

I've no ECHR experience, but I thought you could only sue a country, not individuals or even LAs. I may be wrong.

It is true to say that the law of nuisance will not prevent a reasonable activity from being carried out just because it affects the over-sensitive (someone mentioned this earlier). I don't see that asthma is likely to be over sensitive in the vast majority of cases.

Dave

Smoke Nuisance â€“ is wood wood?

db8000 — Wed, 14 Jan 2015 17:31:16 +0000

Another observation (I've not read up since before Christmas!
All the info about smoke and autism and other places banning fires is all irrelevant to your case. Your case turns on whether your neighbour's activities are causing a nuisance.

It needs to be all about the effect on your health and property and proving it's from next door.

Corroboration of the issue from others will help greatly.

Smoke Nuisance â€“ is wood wood?

tony — Wed, 14 Jan 2015 17:38:28 +0000

Great bit of help, keep talking to us!

Smoke Nuisance â€“ is wood wood?

Peter_in_Hungary — Wed, 14 Jan 2015 19:45:33 +0000

Posted By: db8000I've no ECHR experience, but I thought you could only sue a country, not individuals or even LAs. I may be wrong.

As a lay person who went to the ECHR (and won) during my readup prior to submitting my case my understanding is that - Yes you can only sue a country and not an individual but the divested authorities of that country are part of the country - so LAs are fair game

Smoke Nuisance â€“ is wood wood?

SteamyTea — Wed, 14 Jan 2015 22:04:22 +0000

db8000
Thanks for that. It helps us all understand how the legal system works, the worst most of us get is a speeding ticket.

So does the Judge look at the case and decide what rules/laws are being broken or is that for Mike's Solicitor to work out beforehand?
And do they look at previous cases that are similar or just decide that something is a nuisance (or not).

Smoke Nuisance â€“ is wood wood?

db8000 — Wed, 14 Jan 2015 22:39:21 +0000

Speeding ticket = criminal. If you're going fast enough you'll end up in the magistrates! They're lay judges (i.e. no legal background, though they will have had training to be a judge). Indeed our local Tesco security guard got a farewell spread in the local rag after he retired after many years working also as a magistrate.

Nuisance = civil courts, almost certainly will be heard by a district judge (or deputy DJ).

The judge will be a lawyer, probably a solicitor. Whilst the court office try to match cases to district judges' expertise, there are no guarantees. Mikeee may find himself with a DJ that normally does family court work and knows very little about property law. DJs will have had training to be a judge but not necessarily in the law.

Therefore, the claimant must be prepared to present the law as well as his/her facts.

Previous cases (precedents) are essential in most cases of this type. The judge will expect the claimant (and defendant) to provide the relevant information about the case and why the precedent applies.

Litigants in person (LiP) - people who represent themselves - are given some leeway by the judge. However that will not stretch so far that the judge will make out the LiP's case for them. I don't actually know what happens if both parties are LiPs, they don't know the law and nor does the judge!

Represented parties will be expected to provide a full case - law, facts and cogent arguments. They will be held to a higher standard and the judge will not help them. This can seem quite harsh when your opponent is getting the help and you're not but that's the way it is.

The judge may give the decision there and then or after a short recess. It is rarer that a judgment is reserved to another day but if the judge feels that he or she cannot make the decision because they wish to reflect or carry out some research themselves, they can do so.

Smoke Nuisance â€“ is wood wood?

slidersx200 — Wed, 14 Jan 2015 22:58:07 +0000

Having undertaken a Small Claims procedure and feeling rather disillusioned with that experience, may I offer a cautionary, if somewhat cynical opinion.

Believing you are right, or even being in the right does not guarantee success.

The likelihood that the judge will have any great background in this particular field may be slim and it is also unlikely that any research they have performed will be anywhere near as thorough as your own. Be prepared to be underwhelmed.

Your neighbour electing not to employ professional representation could be a shrewd move; pleading poverty, playing the underdog, obtaining sympathy and/or leniency from the judge against a qualified solicitor or barrister.

There is perhaps every chance that the judge themself enjoys a crackling fire and I'd advise caution to avoid coming across like you believe burning wood is the devil's work. Stay objective and on point that your issue is with this particular stove/flue.

As mentioned sometime earlier in the thread, this may prove an important case in establishing a precedent and depending on the judge's cahonies, or lack thereof, they may fear the wider ranging repercussions of their decision and allow that to influence it.

In my case, my wife and I appeared together against the other party, but the judge said she had to consider that we may be biased in our accounts as we shared a common interest, so much of our submission was ignored. Independent witnesses will probably get you further than friends and family.

With that being said, I wish you success on the day and hope you are granted a satisfactory resolution to this lengthy saga. Sounds clichÃ©, but about the best you can do is prepare for the worst and hope for the best!

*cross posted with db8000 who makes many similar remarks, but better!

Smoke Nuisance â€“ is wood wood?

Gotanewlife — Wed, 14 Jan 2015 23:12:37 +0000

Posted By: slidersx200what fuel is put in it

No! That can't be right! Good fuel does not prevent the fumes going into the house, it is just that the fumes won't be so obvious, however, they will contain the same number of PM2.5s and be equally deadly eventually. This case must be about the flue and the local micro-environment meaning the existing flue is inadequate, indeed possibly any reasonable effort to make it better may also be inadequate. Getting him told off for using the wrong fuel would be a disaster IMO.

Smoke Nuisance â€“ is wood wood?

slidersx200 — Thu, 15 Jan 2015 00:39:12 +0000

Posted By: Gotanewlife
Posted By: slidersx200what fuel is put in it
No! That can't be right! Good fuel does not prevent the fumes going into the house, it is just that the fumes won't be so obvious, however, they will contain the same number of PM2.5s and be equally deadly eventually. This case must be about the flue and the local micro-environment meaning the existing flue is inadequate, indeed possibly any reasonable effort to make it better may also be inadequate. Getting him told off for using the wrong fuel would be a disaster IMO.

Edited above in agreement, thought there was mention of burning painted or possibly contaminated timbers etc, but may have mistaken the context. CBA going back 30 pages to argue otherwise lol!

Smoke Nuisance â€“ is wood wood?

Triassic — Thu, 15 Jan 2015 08:31:08 +0000

We all enjoy good food, good wine and a nice warm fire to warm our feet. I would suggest that if your neighbour then tossed the empty food wrappers, the empty wine bottle and the ash over your fence, you would not be impressed and feel hard done to.

Same applies here - it's fine to enjoy the fire, but because you are not disposing of the smoke properly it's ending up in my house, that is what I object to.

Smoke Nuisance â€“ is wood wood?

Gotanewlife — Thu, 15 Jan 2015 10:15:49 +0000

Slider - you were right but his fuel choice has since improved. Even if it hadn't, it is a side issue as a working flue would take the fumes away and being sidetracked into this area would be unhelpful at best - glad you agree :) Let's hope this finally fixes it, even better if it happens before we get to 1000 posts!

Smoke Nuisance â€“ is wood wood?

jules — Thu, 15 Jan 2015 16:12:35 +0000

Haven't read the whole thread, but it suspect the key point is that the burden of proof is on you to prove nuisance, not on your neighbours to prove lack of nuisance. In that sense it may not hinge at all on what your neighbours say, because the only relevant issue is what's happening in your house re smoke levels - about which they can presumably say nothing.

For the nuisance value of smoke levels in your house you will need hard evidence, preferably independent, not only of the level of nuisance but also confirming the source of the smoke. If next door's smoke can really set off smoke detectors in your house, an independent person of standing (who's word the judge would trust) who witnessed this happening might be useful evidence. (Obviously they would have to vouch that there wasn't any other source of smoke at the time etc).

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Thu, 15 Jan 2015 16:20:30 +0000

Thank you for the input folks, the help on here has really been phenomenal!

Mikeee5

Smoke Nuisance â€“ is wood wood?

Gotanewlife — Thu, 15 Jan 2015 16:39:54 +0000

Mikeee - I suggest you go back and edit your first post and stick this in the members only section. Makes no difference to your avid followers/contributors but could prevent an accidental find on the part of the defence, if you know what I mean.

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Thu, 15 Jan 2015 17:33:28 +0000

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Sun, 25 Jan 2015 10:37:13 +0000

Does anyone know if you get steam from a chimney at night when burning wood during sub zero temperatures?

Mikeee5

Smoke Nuisance â€“ is wood wood?

SteamyTea — Sun, 25 Jan 2015 11:13:22 +0000

If by 'steam' you mean condensed water vapour, then yes. Just the same as you get out a gas boiler sometimes (actually seen one make snow).

Generally the water content is so small it would be hard to tell what is steam or smoke. Steam tends to vanish very quick though.

Smoke Nuisance â€“ is wood wood?

billt — Sun, 25 Jan 2015 11:34:27 +0000

If the wood burning stove is being operated correctly (dry wood and high temperature) there will be no visible smoke of any kind.

When starting up you can get smoke for a few minutes, quite a lot of which will be water vapour and you can get some on reloading, when the burn temperature drops.

Night and low temperatures won't have any effect on the stove's emissions.

Smoke Nuisance â€“ is wood wood?

Gotanewlife — Sun, 25 Jan 2015 11:45:34 +0000

Posted By: billtNight and low temperatures won't have any effect on the stove's emissions.

but will on whether you can see it or not.

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Sun, 25 Jan 2015 12:09:52 +0000

I have captured the chimney smoking for over 1 hour via my CCTV. It was a cold still night and the "smoke " went up to about 10 metres and then curved and started heading back to ground. I noticed that there is a chimney serving a gas appliance in the background puffing a bit of steam and this does evaporate very quickly. I would say the steam plume disappeared within a couple of metres.

Smoke Nuisance â€“ is wood wood?

SteamyTea — Sun, 25 Jan 2015 12:20:19 +0000

Posted By: Mikeee5It was a cold still night and the "smoke " went up to about 10 metres and then curved and started heading back to ground. I noticed that there is a chimney serving a gas appliance in the background puffing a bit of steam and this does evaporate very quickly. I would say the steam plume disappeared within a couple of metres.

Sounds about right.

Smoke Nuisance â€“ is wood wood?

tony — Sun, 25 Jan 2015 18:05:05 +0000

sounds like smoke is being emitted from the wood burner, with the gas flue in the same shot conclusive comparable and irrevocable evidence, wd M

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Sun, 25 Jan 2015 19:34:44 +0000

Good point Tony. The smoke on this occasion was going up and creating an arc as it cooled. The gas plume soon Disappeared.

Smoke Nuisance â€“ is wood wood?

tony — Sun, 25 Jan 2015 21:47:21 +0000

It is doubly incriminating because if it isn't smoke then it is steam and lots of it proving wet wood or other inappropriate fuel

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Mon, 26 Jan 2015 16:29:48 +0000

Got another 1 for you Tony. I've been scrutinising the information that I received via the Freedom of Informatin Request. It appears that 2 out of the 4 visits that the Environmental Health Officer made on "my neighbours property" (to investigate the smoke and fumes on my property) were made in November Between 20.00 hrs and 21 hrs. What can you deduce from that my friend?

Smoke Nuisance â€“ is wood wood?

Gotanewlife — Mon, 26 Jan 2015 16:43:14 +0000

Perhaps he used a sensitive infra red sensor to check for smoke.....hmm on the other hand perhaps he likes your neighbours' whiskey.

Smoke Nuisance â€“ is wood wood?

tony — Mon, 26 Jan 2015 16:46:40 +0000

what were the dates of the visits?

Smoke Nuisance â€“ is wood wood?

CWatters — Mon, 26 Jan 2015 17:21:19 +0000

It appears that 2 out of the 4 visits that the Environmental Health Officer made on "my neighbours property" (to investigate the smoke and fumes on my property) were made in November Between 20.00 hrs and 21 hrs. What can you deduce from that my friend?

He didn't take any pictures because it was dark.

Smoke Nuisance â€“ is wood wood?

bot de paille — Mon, 26 Jan 2015 17:43:12 +0000

Presumably he uses some sort of smoke particle detector? Or is he just going to look at the smoke coming out of the chimney and make an evaluation on what he sees or doesn't see??

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Mon, 26 Jan 2015 20:08:15 +0000

You guys are correct on all accounts. It was dark, no equipment to measure particulate matter and he was tucking into my neighbours Jack Daniels ðŸ˜€

The best news is I've had confirmation from the Information Commissioners Office that I can present the Freedom Of Information bumf in court as part of my evidence. Not only has the EH officer never been on my property when the fire has been lit, two of his visits took place in the dark!