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

Smoke Nuisance â€“ is wood wood?

CWatters — Tue, 10 Mar 2015 08:32:07 +0000

The government is running TV ads at the moment pointing out that many of the chemicals produced by cigarettes is invisible. Does the same apply to wood smoke? In which case the quality of the wood burnt isn't really relevant compared to the problem with the operation of the chimney. All the smoke does is make it easier to see where the nasty stuff is going.

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Sun, 15 Mar 2015 10:02:36 +0000

Posted By: gareeHi Mikee5.

Sometime ago, you mentioned that you had used FOI to get information from your council about their visits to your neighbour. Was there any reason you didn't use the Data Protection Act to get the information ?

Thanks,
Gareee.

Hi Gareee

Because it was seen by the council as an Environmental issue, the council said it had to be treated as a Data Subject Access Request. This has provided me with all the information I need although names have been redacted which shouldn't be a major problem. Have things improved for you this season?

Posted By: CWattersThe government is running TV ads at the moment pointing out that many of the chemicals produced by cigarettes is invisible. Does the same apply to wood smoke? In which case the quality of the wood burnt isn't really relevant compared to the problem with the operation of the chimney. All the smoke does is make it easier to see where the nasty stuff is going.

I've seen the adverts and was thinking the same CWatters. It's the severity of the fumes in and around my home that is the problem here! I've just spent days going through 3 years worth of videos and cctv footage showing the smoke heading downwards all nicely tallying with the entries made in my diary! We've just had the disclosure, I think it will be about 6-8 weeks for the case!

Smoke Nuisance â€“ is wood wood?

garee — Sun, 22 Mar 2015 21:22:55 +0000

Thanks for your reply Mikeee5.

Sadly, my situation hasn't improved. My EHO is worse than useless and the neighbours are unwilling to help. I might have to follow your lead.

Good luck with your case.
Garee

Smoke Nuisance â€“ is wood wood?

tony — Sun, 22 Mar 2015 21:28:29 +0000

Sad, I reckon that these EHOs spend a lot of time talking about how to do nothing

Their job title suggests that they might do some good in our society but I don't see or feel this.

Smoke Nuisance â€“ is wood wood?

SteamyTea — Mon, 23 Mar 2015 08:02:52 +0000

Garee
May be worth you turning up at court to view Mikes case.

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Mon, 23 Mar 2015 20:52:27 +0000

Posted By: tonySad, I reckon that these EHOs spend a lot of time talking about how to do nothing

Their job title suggests that they might do some good in our society but I don't see or feel this.

It's an absolute disgrace Tony. I will shout it from the chimney tops when my case is over. There's 4 of us on here now in the same smoke boat. The EH officer dealing with my case is standing against me in court, it's unbelievable. Unfortunately for my neighbours the court has told them the EH officer is not allowed to stand as an expert witness, however he is allowed to stand as a layperson which means my solicitor can cross examine him! It will be interesting to see what he says when my solicitor asks how he has come to the conclusion a health hazard does not exist when he has never been on my property when the fire has been lit!!!

I've found out this week that the trial window is between August and September.

Milkeee5

Smoke Nuisance â€“ is wood wood?

tony — Mon, 23 Mar 2015 21:37:01 +0000

It leaves me with a crease in my stomach, it would be very interesting to take the LA to court! Can't see how they would have a leg to stand on.

Smoke Nuisance â€“ is wood wood?

CWatters — Tue, 24 Mar 2015 12:29:48 +0000

Ever wondered what our council tax is spent on.... There was a short article in the Daily Express on Monday that said by 2019 (4 years) 34% of all council tax collected will be spent on local council staff pensions.

Smoke Nuisance â€“ is wood wood?

EasyBuilder — Thu, 26 Mar 2015 20:34:12 +0000

Have you investigated the potential relationship between your neighbour and EHO? Same funny handshake?

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Sat, 28 Mar 2015 09:58:25 +0000

I think that's been suggested earlier on in the Thread Easy Builder. The EHO has certainly pooled forces with my neighbour. I think they have dug their heels in because we have complained heavily about how they have handled my case! My wife also thinks they don't want to witness what's happening here as it could open a can of worms!

Mikeee5

Smoke Nuisance â€“ is wood wood?

tony — Sat, 28 Mar 2015 11:59:01 +0000

Like they might have get off their backsides and do something.

Landmark case for sure now.

Smoke Nuisance â€“ is wood wood?

bella — Tue, 31 Mar 2015 15:14:36 +0100

Mikee, Good luck with your case. it matters to everyone.

Strikes me that when you get to taking on the opposition the EHO needs reminding, forcefully, of the background to existing legislation and policy on the harmful effects of air pollution - that it was and is a serious danger to health. I do hope your legal eagle has all that at his finger tips - as well as the particular set of circumstances you find yourself in. If it were not for that background you would have no case at all because there would be no rules on whether or not your neighbour can expose you to the smoke from his wood burner. If you have evidence that you are repeatedly exposed to your neighbours smoke it should not be difficult to demonstrate that the EHO is failing in their duty to apply the rules designed to protect your health as well as everybody else's.

It is worth noting that the evidence of the serious harm done by air pollution was and is solid and grows across a range of medical conditions. For obvious reasons respiratory illness is the one everyone has heard of (except your EHO it seems!) but there is a long list of other systemic effects. A recent literature review (a survey of published studies, then selection for analysis using pre-defined criteria for relevance and quality) from Edinburgh links the occurrence of a stroke to exposure to an episode of air pollution (particulates, sulphur dioxide, nitrogen dioxide, carbon monoxide). 2748 studies from across the world were reviewed, 103 were selected for analysis according to the criteria. The analysis provides substantial evidence of a link.

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Tue, 31 Mar 2015 15:24:45 +0100

Posted By: tonyLike they might have get off their backsides and do something.

Landmark case for sure now.

I certainly wouldnâ€™t like to run the distance again tony!!

Thank you for the input Bella, I think we must have been typing our posts at the same time!

I`m trying to establish what my Local Authorities remit is under the Clean Air Act 1993. I have been in contact with the DEFRA helpline again as I am still not clear of my Local Authorities duty of care to me regarding â€œfumesâ€ under the provisions of the CAA. As previously mentioned, DEFRA confirmed that â€œsmoke emitted from domestic premises in a smoke control area is specifically excluded from the statutory nuisance provisions of the Environmental Protection Act 1990 to avoid duplication with the smoke control provisions of the CAAâ€. DEFRA have replied and have said I can find the text by following this link http://www.legislation.gov.uk/ukpga/1993/11/contents .

I have followed the link to the Clean Air Act but unfortunately I am still struggling to find a section where it states nuisance from â€œfumesâ€ from domestic furnaces. I would be grateful if anyone else would have a look to see if there is a provision for fumes under the CAA 1993, perhaps I`ve overlooked it or understanding it wrongly! The DEFRA agent concluded by sayingâ€ If you remain dissatisfied with the options available to you, you may wish to ask your Parliamentary candidates or, after the general election, your MP to press for change on your behalfâ€.

The way I am reading it is that my Local Authority may not be obliged to investigate for fumes as I live in a â€œSmoke Control Areaâ€. It could be that their remit under the CAA 1993 is the amount of smoke that is emitting from the chimney. My LA concluded their last letter stating that the performance of the chimney was the responsibility of HETAS and to contact them if I have anymore concerns with the installation.

Mikeee5

Smoke Nuisance â€“ is wood wood?

bot de paille — Tue, 31 Mar 2015 18:09:10 +0100

You can bet that if there was a fine to be collected by the council (similar to parking fines), that they would be all over your neighbours and everyone else like a rash.

Smoke Nuisance â€“ is wood wood?

SteamyTea — Tue, 31 Mar 2015 18:11:32 +0100

What are you paying your solicitor for?

Smoke Nuisance â€“ is wood wood?

CWatters — Tue, 31 Mar 2015 20:01:25 +0100

I have followed the link to the Clean Air Act but unfortunately I am still struggling to find a section where it states nuisance from â€œfumesâ€ from domestic furnaces.

I think _fumes_ might still be covered by the EPA 1990 ! The EPA 1990 is here...

http://www.legislation.gov.uk/ukpga/1990/43/part/III

Paragraph 79 says...

the following matters constitute â€œstatutory nuisances

1(b) smoke emitted from premises so as to be prejudicial to health or a nuisance;
1(c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;

Then later there is the problem bit inserted to avoid duplication with the CAA..

(3) Subsection (1)(b) above does not apply toâ€”
smoke emitted from a chimney of a private dwelling within a smoke control area,

(4) Subsection (1)(c) above does not apply in relation to premises other than private dwellings.

But note that 1b is smoke and 1c is fumes.

If I'm reading this correctly the fact that you are in a smokeless control area only precludes you taking action for nuisance on the smoke issue under the EPA. It appears you can still take action for "fumes or gases" under the EPA.

Smoke Nuisance â€“ is wood wood?

Ed Davies — Tue, 31 Mar 2015 20:32:28 +0100

Posted By: CWattersIf I'm reading this correctly the fact that you are in a smokeless control area only precludes you taking action for nuisance on the smoke issue under the EPA. It appears you can still take action for "fumes or gases" under the EPA.

My understanding is slightly different: this is the definition of statutory nuisance and is therefore a matter of what the EHO is required to take action on.

What is nuisance which you (i.e., anybody affected) can take action on is a matter of common or case law and quite separate. Possible search fodder: â€œprivate nuisanceâ€.

Smoke Nuisance â€“ is wood wood?

snyggapa — Tue, 31 Mar 2015 23:00:08 +0100

hmm. I'm with CWatters on this one. A skim through the exciting world of the EPA implies to me that although smoke in a smoke controlled area can NOT be a statutory (i.e. one that your local authority is in theory obliged to deal with) nuisance, emission of FUMES that are prejudicial to health, from a private dwelling, IS a statutory nuisance - and hence one that the LA are obliged to deal with under part 79(1) of the act

In all your dealings with the EHO, did you only use the word "smoke" or did you use the magic word "fumes" at any time?

Smoke Nuisance â€“ is wood wood?

snyggapa — Tue, 31 Mar 2015 23:15:45 +0100

next question - what is his defra appliance - make and model? It should be on this list here
http://www.legislation.gov.uk/uksi/2014/2404/schedule/made
and you can look up any appliance and see the stipulations. If he is not burning the approved fuel then it's not approved, therefore not exempt by virtue of section 21 of the clean air act, therefore if it produces ANY smoke at all is an offence under section 20 of the same act. Who polices / enforces that, I'm not really sure...

Smoke Nuisance â€“ is wood wood?

Ed Davies — Wed, 01 Apr 2015 09:28:31 +0100

No disagreement on the fumes/smoke aspect from me, only with idea that this definition has anything to do with what â€œyouâ€ (presumably a private individual) can take action on for nuisance.

Smoke Nuisance â€“ is wood wood?

snyggapa — Wed, 01 Apr 2015 09:52:39 +0100

This is where I don't have any idea. In theory, breaches of the above legislation should be prosecuted by an authority (explicitly the local authority for the EPA, not sure about the clean air act). In theory mikeee has a case against those bodies for not carrying out their task.

The thought that he might be suing the wrong person crossed my mind last night, although it it undeniable who is actually causing the "nuisance", and if it can be proven that he is in breach of either of those 2 acts (fumes prejudicial to health, which may be subjective to a degree, EPA) or burning non-approved fuel (if you have evidence of painted / building waste, clean air act), or that the chimney is not considered capable of adequately discharging the products of combustion (building regs part J2) then the neighbour is breaking the law, which in my non-legal opinion would help his case - but only be reinforcing the point that the activities are causing a nuisance by being prejudicial to mikeee's health.

The fact that there may be other routes against the authorities for their failure to follow up the complaints is a secondary matter

In my opinion, the case is simple, his appliance is emitting fumes that prejudices my health, however I have a nasty feeling that it is going to get derailed from a simple case into one of a whole bunch of un-related arguments, and the simpler it is kept, the better.

The owner hay have a case against the HETAS engineer who signed off the installation as compliant with building regs, but again that is a separate matter...

Smoke Nuisance â€“ is wood wood?

tony — Wed, 01 Apr 2015 10:16:00 +0100

If there was a case against the LA how would one go about taking that forward?

Smoke Nuisance â€“ is wood wood?

bella — Wed, 01 Apr 2015 11:54:53 +0100

Fine particulates + sulphur dioxide etc. must surely count as "fumes". And the Oxford dictionary defines "fumes" as "exuded gas or smoke or vapour" - so no need to stand on the head of a pin when it comes to the language .

Smoke Nuisance â€“ is wood wood?

SteamyTea — Wed, 01 Apr 2015 14:42:13 +0100

Mikee
Who are you taking to court, the LA (or a department within it) or your neighbour, and what are you taking them to court for?

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Wed, 01 Apr 2015 15:50:32 +0100

It`s my Neighbour at the moment Steamy and it`s for Private Nuisance. I`m coming back for the LA

I think Snyggapa & CWatters are on the right track, lets throw some more cryptic clues in the pot.

These were the main question that I put to the DEFRA helpline regarding the EPA and smoke control areas:

Q1: Is my neighbour allowed to cause a statutory nuisance with regard to smoke emissions as I live in a smoke control area?

Reply:
The Clean Air Act 1993 (CAA) grants local authorities powers to control emissions of dark smoke, dust and fumes from industrial premises and furnaces, and to declare smoke control areas in which emissions of smoke from chimneys are banned unless the occupier is using an authorised fuel or exempted fireplace. Smoke emitted from domestic premises in a smoke control area is specifically excluded from the statutory nuisance provisions of the Environmental Protection Act 1990 (EPA) to avoid duplication with the smoke control provisions of the CAA.

Q2: Is it acceptable to have fumes in and around my property on regular occasions as I live in a smoke control area?

Reply:
Section 79(i)(c) of the EPA says that â€œfumes or gases emitted from premises so as to be prejudicial to health or a nuisanceâ€ can be deemed to be statutory nuisance for the purpose of the Act. Whether or not particular emissions can be classified as fumes or gases and as a statutory nuisance is both a legal and a technical question that only your local authority can judge.

The way I am reading this is that â€œsmokeâ€ emitted from domestic premises in a smoke control area is excluded from the statutory nuisance provisions of the EPA 1990 to avoid duplication with the smoke control provisions of the CAA 1993. In the reply to my second question regarding â€œfumesâ€ in a smoke control area, the DEFRA representative has said section 79(1)(c) of the EPA says that â€œfumes or gasesâ€ emitted from a premises so as to be prejudicial to health or a nuisanceâ€ can be deemed to be a statutory nuisance for the purpose of the Act. So I would read this as 79(1)(c) does apply in a smoke control area.

And CWatters findings from the EPA ( 4 Subsection (1)(c) above does not apply in relation to premises other than private dwellings) confirms this is regarding private dwellings.

Smoke Nuisance â€“ is wood wood?

Ed Davies — Wed, 01 Apr 2015 16:18:34 +0100

But if you are bringing a private nuisance case against your neighbour, why would it matter whether it's a statutory nuisance at all?

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Wed, 01 Apr 2015 16:35:31 +0100

I`ts because the EHO is coming to court to stand as a witness against me.The letter that my neighbours have produced from the EHO say that "a nuisance does not exist". As we know via the information from the Freedom of information request, the EHO has never been on my property when the fire has been lit. He has visited my neighbours property when the fire has been lit and made a judgement under the Clean Air Act of the amount of smoke being emitted from the chimney, however he has never been on my property when the fire is lit to make an assessment of the "fumes and gases" as per section 79(1)(C) of the EPA.

Smoke Nuisance â€“ is wood wood?

snyggapa — Wed, 01 Apr 2015 18:20:39 +0100

Hmm. my reading is that he is not allowed to make a judgement about smoke under the clean air act. If he is using an defra authorised appliance, and crucially an authorised fuel then he is ok with respect to breach of the clean air act. If he is not, at all times, doing so then any smoke is an offenc. No 15 minute startup allowance, it's a point blank offence.

Of course just because he is not in breach of the clean air act, it does not mean that he is not causing you a nuisance.

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Wed, 01 Apr 2015 19:50:12 +0100

Phew, just stepped outside the back door and the fumes are horrendous! Not much smoke coming out the chimney though.

Regarding the Fuel Snyggapa, I have it in writing via the freedom of information act that the EHO has not taken into acount the moisture content of the wood to satisfy the DEFRA exemption. My wife included the fact that my neighbour had a delivery of freshly cut logs (with leaves on) in one of her emails to the Environmental Health Department. She said that they were not properly seasoned and would cause smoke. The officer dealing with my case has acknowledged this and has said that my neighbour is allowed to produce smoke during start up and refuelling. I included this to the ombudsmen and the representative dealing with my case said "the council said they were dry". I mentioned the 15 minute start up is a commercial rule and the ombudsmen totally ignored this point.

Smoke Nuisance â€“ is wood wood?

longjohn2 — Thu, 02 Apr 2015 00:29:13 +0100

Hi mikeee5.

When I had dealings with our local Eho they made very sure that in the letters they sent to me and I believe my neighbour they stated....that they had not witnessed a smoke, fume or odour nusiance and added, just because they had not witnessed it did not mean there was not one. And we were advised that we could take our own court action! Is your Eho stating No nusiance....or just that he did not witness it?