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

Smoke Nuisance â€“ is wood wood?

SteamyTea — Tue, 01 Mar 2016 21:57:49 +0000

Who recommended the chimney extension, was it their 'expert' or yours.
Is this expert well insured? Are they (the expert) willing to fight a case if the their action fails to cure the problem.
Ask to see a copy of the experts insurance, bet they don't have any.

Smoke Nuisance â€“ is wood wood?

tony — Tue, 01 Mar 2016 22:55:48 +0000

Still exciting!

Smoke Nuisance â€“ is wood wood?

Gotanewlife — Wed, 02 Mar 2016 00:55:03 +0000

Posted By: SteamyTeaWho recommended the chimney extension, was it their 'expert' or yours.

I think it was joint.

Smoke Nuisance â€“ is wood wood?

MarkyP — Wed, 02 Mar 2016 08:22:39 +0000

the agreement seems to be premature. You really should be disucssing that only once the nuisance has stopped and has been jointly assessd by the experts.

dont forget planning may still block the proposed flue extension. The planning dept will consult environmental health in assessing the application. EH may respond to state that they assessed a complaint at the address and found no evidence of smoke nuisance (is that the case? It's been a long thread). Therefore planning conclude that the visual impact of raising the flue isn't justified and refuse to grant consent. The planning could play out for ages - epsecially if refused and then taken to appeal. And afterall that time could still be refused on appeal. You might need the option of court to get use of the stove stopped while that plays and to determine what should happen in the event planning is refused? Can the court find there is nuisance and overturn the planning decision or do they have to order the use of the stove stop and the chimney be capped off?

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Wed, 02 Mar 2016 11:11:27 +0000

I will check the joint report re who specified the height of the Chimney shortly.

Can anyone decipher this section for the agreement please. It looks to me like it will could close all future proceedings if we roll with these terms !! The order has been drafted by my neighbours solicitor by the way.

1. The Parties agree that the terms set out herein are hereby agreed in full and final settlement of all and any claims between the parties as at the date this Order is signed whether or not brought within these proceedings

Smoke Nuisance â€“ is wood wood?

Gotanewlife — Wed, 02 Mar 2016 11:19:11 +0000

Sure I can translate this for you; it says: "Fire your solicitor. Get someone who actually gives a damn about you and get this piece of junk re-drafted!!!!!!!!"

Smoke Nuisance â€“ is wood wood?

SteamyTea — Wed, 02 Mar 2016 11:20:47 +0000

Means your neighbour knows he is in the wrong and the modifications will probably fail.

If you sign that he will be around rubbing your noise in it.
Beat him to it, soil it first though

Smoke Nuisance â€“ is wood wood?

gyrogear — Wed, 02 Mar 2016 11:29:44 +0000

Posted By: Mikeee5it will could close all future proceedings

*far too dangerous* to comment on, IMHO
==========
"as at the date this order is signed"

is that English ?
for "as of the date of this order" ?
(which is not much better anyhow...)

get them to make it explicit:
"between the Parties extant at the date of this order..."

In any event, (I have zero legal experience), how can the Order (which is (presumably...) a result of "these proceedings" have any weight or effect on anything lying outside the realm of the "proceedings" ?

It's the equivalent of saying that signing the Geneva Convention will prevent any government from making all and any claim against any other government ?

that would be plainly ridiculous...

gg

Smoke Nuisance â€“ is wood wood?

HollyBush — Wed, 02 Mar 2016 13:28:08 +0000

Posted By: Mikeee51. The Parties agree that the terms set out herein are hereby agreed in full and final settlement of all and any claims between the parties as at the date this Order is signed whether or not brought within these proceedings

Again, caveat being I am not a solicitor...

The way I understand that is you are agreeing to draw a line under everything to date - no compensation for affects of smoke, distress etc. If the new chimney doesn't work, you should be able to bring a new claim, but only for the new things.

Get it checked out by your solicitor, and where you have any doubts make them explicit e.g. write into it that if the smoke is still a nuisance then you will re-open the case etc.

You have to decide if you want compensation thus far, and the implications on other cases you may want to bring, such as the ECHR - I don't know if "the parties" includes the council.

Smoke Nuisance â€“ is wood wood?

Gotanewlife — Wed, 02 Mar 2016 13:38:04 +0000

There's a bigger issue here Mikeee5, at least from my personal viewpoint. I am offended that you have not taken on board my comments (as repeated and or agreed with by others) . I have gone through carefully why the type of wood being burned only affects by how much your live is fore-shortened - ie it is irrelevant (though a nice to have it is irrelevant next to it's impact on the case). Yet you mention it yet again. I have explained how the chances are that increasing the flue height by any reasonable amount will not solve your problem, yet you have failed to make either your lawyer or your expert witness understand that and, worse, when you commented on the "solution" a few posts ago your post could only be described as stunningly naive. I return again to the oft mentioned point about selling your house - if you don't have the resources (financial, intellectual, time, energy) to deal with this properly, then you will have to decided whether to live a normal life in another house or to have a foreshortened life your current house. For now you should get the lawyer and expert witness in a room and have it out with them. Of course there is a possibility that the increased height flue will be enough, or that breathing high quality flue gases will not shorten your life. Very little is certain.

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Wed, 02 Mar 2016 13:59:22 +0000

It is both experts that have agreed on raising the chimney and our expert that has recommended the cone type terminal to be used.

I have emailed my solicitor to query the Tomlin order and he has said that the order lasts for 6 years. He said that the other side are looking to achieve a final proposal and accordingly the settlement is in the terms of full and final settlement of all claims currently known about between the parties. The effect of this is that we would not realistically be able to bring a further claim regarding smoke nuisance provided that My neighbours comply with the terms of the Tomlin Order with regard to raising the height of the flue, installing a cone shaped cowl and burning only wood as described in the Tomlin order. If they breach any of those terms we will be able to take the matter back to court on the basis that they are in breach of the Tomlin order. However, if they comply with the terms of the Tomlin order, we will not realistically be in a position to re-open the case of smoke nuisance.

It sounds like it`s the best we`re going to get folks. I`m not sure how I`m going to prove what they are wood they are chucking on the stove though.

Smoke Nuisance â€“ is wood wood?

Peter_in_Hungary — Wed, 02 Mar 2016 14:14:58 +0000

Posted By: Mikeee5I will check the joint report re who specified the height of the Chimney shortly.

Can anyone decipher this section for the agreement please. It looks to me like it will could close all future proceedings if we roll with these terms !! The order has been drafted by my neighbours solicitor by the way.

1. The Parties agree that the terms set out herein are hereby agreed in full and final settlement of all and any claims between the parties as at the date this Order is signed whether or not brought within these proceedings

Posted By: Mikeee5 The order has been drafted by my neighbours solicitor by the way.

And the neighbours solicitor is working to get the best benefit for your neighbour, without regard to you or your health!!

Posted By: Mikeee51. The Parties agree that the terms set out herein are hereby agreed in full and final settlement of all and any claims between the parties as at the date this Order is signed whether or not brought within these proceedings

This paragraph means that IF you sign this it means that the case ends at signing and you can not complain about anything up to the date of signing whether it was a part of this case or not.
So if you signed this before the extension to the chimney was up then the chimney need not be extended because you will have agreed that all claims and complaints have been resolved.

I would not sign any agreement because in your position an agreement can only limit your options. Why would you agree that the problems have been solved and you will take no further action without waiting for at least 1 full heating season to see if the problem returns?

You should stick to your position that you want the smoke nuisance to stop and if anyone asks you to agree that the nuisance has stopped (either verbally or in writing) just say that you don't know yet, insufficient time has elapsed to be sure.

Smoke Nuisance â€“ is wood wood?

djh — Wed, 02 Mar 2016 14:45:02 +0000

Posted By: Peter_in_HungarySo if you signed this before the extension to the chimney was up then the chimney need not be extended because you will have agreed that all claims and complaints have been resolved.

I agree with most of what you wrote but this bit is wrong. The whole point of a Tomlin order is to compel some complex action after terms are agreed. IANAL but I can read wikipedia

The agreement will force the neighbours to extend the chimney and if they choose not to or else are prevented by planning etc then Mikeee5 can take them to court. But if they do it and it doesn't fix the problem then he can't (or at best he has to start all over again with a brand new case, but I'm not clear about that).

I can see why the neighbours want an arrangement like this. I don't see why Mikeee5 would agree, unless his solicitor tells him he would lose in court, for reasons I don't understand.

Smoke Nuisance â€“ is wood wood?

MarkyP — Wed, 02 Mar 2016 14:57:00 +0000

Mikeee, I've been following the the thread on and off for its duration, I really think you should very carefully consider your position here. It reads like you are about to put yourself in check mate if you sign this. You should go through your options in depth with your solicitor. I can see the other party having very little leverage here where you have the option of going to court, you shouldnt feel under pressure to accept. I cannot see how this Tomlin proposal is reasonable and therefore cant see how you declining it could undermine your chances in court.

I keep saying it, but planning is likely to be a real pain here. If it gets refused and goes to appeal it could be 18 months or more before they can even start on the flue. Can you wait that long? No doubt they will keep burning in the meantime. You should consider the court option, tough as that may seem.

Smoke Nuisance â€“ is wood wood?

djh — Wed, 02 Mar 2016 15:30:25 +0000

Posted By: MarkyPNo doubt they will keep burning in the meantime.

One obvious clause in the agreement would be for them to agree not to use the stove until the work is done. Even better if they agreed not to use it until the higher chimney was proved to work but I suspect that is a bit more tricky.

Smoke Nuisance â€“ is wood wood?

SteamyTea — Wed, 02 Mar 2016 15:34:08 +0000

Only let them use the stove when they are downwind of you, that is easy to do.

Smoke Nuisance â€“ is wood wood?

djh — Wed, 02 Mar 2016 16:18:11 +0000

Posted By: SteamyTeaOnly let them use the stove when they are downwind of you, that is easy to do.

Way too complicated. For example, what happens if the wind changes direction?

KISS

Smoke Nuisance â€“ is wood wood?

Gotanewlife — Wed, 02 Mar 2016 16:54:46 +0000

I sure Steamy was just being inappropriately sarcastic.

There is something not right here - any fool can see that. I am wondering if we have not seen something key. Clearly if the experts have said smoke is entering the house and it is a health hazard and recommended an action that may not solve the problem then only an imbecile of a lawyer would accept indeed recommend signing something that may leave the staus quo and Mikee with a 6 year gagging order. Perhaps, therefore, rather than saying "Smoke was clearly entering the house in such large quantities and so frequently as to cause an immediate and undeniable health hazard", the experts said "A small amount of smoke was seen on one occasion entering the house and this is not ideal". We have not seen the precise wording and it is critical as the later statement might add up to "This is the best we are going to gets folks".

Similarly, but much less likely, we have not seen the precise wording of the experts recommendation for a flue height increase, as if it said "Raising the flue by 1m will solve the problem" again that's the best we are going to get folks.

I have seen lawyers 'process' their work before - a bit like an estate agent forwarding a bid to the vendor without adding any value and this could have happened here.

If on the balance of probabilities anyone reading the experts' statement would conclude that the problem must be addressed then (assuming the experts have not put the topographical data and wind data into a Cray and found that 1m will solve the problem) there is no way Mike would lose in court against a proposed solution that might not solve the problem....and their lawyer would certainly try for this gagging agreement.

If it were me I would instruct my lawyer to make a counter offer. You agree not to take them to court for 1 year provided the flue is installed by 30 Sep this year - making it clear in writing that you consider that it is only reasonable that you give the attempted solution a reasonable trial but that you are dubious that it will solve the problem.

Smoke Nuisance â€“ is wood wood?

Peter_in_Hungary — Wed, 02 Mar 2016 17:09:54 +0000

Posted By: djh
quote
Posted By: Peter_in_HungarySo if you signed this before the extension to the chimney was up then the chimney need not be extended because you will have agreed that all claims and complaints have been resolved.

I agree with most of what you wrote but this bit is wrong. The whole point of a Tomlin order is to compel some complex action after terms are agreed. IANAL but I can read wikipedia" alt="" src="https:///newforum/extensions/Vanillacons/smilies/standard/smile.gif" >

djh - you are right I cross posted with mikeee5, his post clarifies this.

However why would he want or need to sign any agreement before any solution is proved to work and even then what would be the benefit of an agreement.

Mikeee5 perhaps you could ask your solicitor why you need this agreement and what is the benefit to you!

Smoke Nuisance â€“ is wood wood?

gyrogear — Wed, 02 Mar 2016 17:16:26 +0000

Posted By: Peter_in_HungaryMikeee5 perhaps you could ask your solicitor why you need this agreement and what is the benefit to you!

Good Thinking, PiH

gg

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Wed, 02 Mar 2016 17:53:02 +0000

I have just scrolled down the email from my solicitor that attached the Tomlin order and there is the email that my neighbours solicitor sent to my solicitor. He has said "As discussed I attach draft Tomlin Order which is subject to my clients instructions. Please take instructions and confirm whether the Order can be agreed as drafted or let me have details of any amendments".

So it looks like we do have the opportunity to amend the contents.

Smoke Nuisance â€“ is wood wood?

Gotanewlife — Wed, 02 Mar 2016 17:56:10 +0000

So he has just - 'processed' it.

Smoke Nuisance â€“ is wood wood?

gyrogear — Wed, 02 Mar 2016 18:08:48 +0000

Posted By: GotanewlifeSo he has just - 'processed' it.

GÃ NL,

"it's not often you're wrong, but looks like you were right this time..."

gg

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Wed, 02 Mar 2016 18:09:46 +0000

Posted By: GotanewlifeSo he has just - 'processed' it.

Do you mean my solicitor has just processed the Tomlin Order?

Smoke Nuisance â€“ is wood wood?

Peter_in_Hungary — Wed, 02 Mar 2016 18:48:56 +0000

Posted By: Mikeee5
Posted By: GotanewlifeSo he has just - 'processed' it.

Do you mean my solicitor has just processed the Tomlin Order?

yes - your solicitor is required to pass on to you any offers made by the other side. However I would expect that when he forwards any offer he should give his recommendation as what you should do in your best interests. Something on the lines of - I am required to pass this to you as an offer but I would not recommend that you sign/accept/whatever for the following reasons...........

As I said earlier you should ask your solicitor why you should sign this agreement and what is the benefit to you if you do sign.

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Wed, 02 Mar 2016 19:12:43 +0000

Thanks for explaining that Peter. I will have a chat with my solicitor tomorrow to see if this can be altered in our favour.

Thanks for everyones continued support.

Mikeee5

Smoke Nuisance â€“ is wood wood?

snyggapa — Wed, 02 Mar 2016 19:24:07 +0000

so what you have is a first draft - a "best possible case" for your neighbour.

Now it's time for your solicitor to add his value.

A couple of things need clearing out

1) do you expect any compensation in any way for this , or is a solution all you want
2) are there any other issues/disputes between you and the neighbour at all

because it seems as drafted that you are waiving your right to any monetary claim (which may be fine, you just need to be aware that is the case) and for 2, the wording of the agreement might inadvertently (or deliberately) close off any other disputes on any other matter that you may or may not have. Again , this may not be an issue if there are none but awareness is the key

So I would send a counter proposal, as an amendment to the initial proposal. First point is that the neighbour should cease use of the stove until such tie that the experts recommendations are complied with . That way, if they get planning or other issues, it's their problem not yours.

Secondly I would not accept that as resolution - so if they follow the guidelines in the report and it still causes a nuisance then the experts come back , agree a report and they cease use until that is complied with. The main point being that you want the nuisance to your health stopped, you don't care how, this is not your problem.

Remember that the neighbour has a piece of paper stating that it was in compliance with the building regs and that STILL CAUSED A NUISANCE TO YOUR HEALTH.
You do not want to be left with a second piece of paper that still causes a nuisance to your health

This is not an unreasonable request!

-Steve

Smoke Nuisance â€“ is wood wood?

Mikeee5 — Wed, 02 Mar 2016 19:26:44 +0000

I've just had a thought for an addition for the conditions in the Tomlin Order. The experts have documented the start up and refuelling smoke in their joint report. They have specified the time the stove produced smoke and compared the smoke to a ringlemen chart. What about an addition of this section of the report as a bench mark for the level of smoke?

Smoke Nuisance â€“ is wood wood?

snyggapa — Wed, 02 Mar 2016 20:00:05 +0000

I wouldn't go down this path - I think that the ringlemen chart is for measuring the colour - your problem is that the smoke and fumes are coming into your property and affecting your health.

Would you be happier if the smoke was colourless so you were being killed by what you couldn't see, or if the smoke and fumes properly went elsewhere into the atmosphere? It will still come down in the same place whether you can see it or not.

Smoke Nuisance â€“ is wood wood?

djh — Wed, 02 Mar 2016 21:43:11 +0000

perhaps you could ask your solicitor why you need this agreement and what is the benefit to you!

AIUI, the need and benefit is that courts take a dim view of parties who cannot reach an agreement like this if one is possible. But it doesn't sound like that point has been reached yet. The other party appears to have made a [somewhat one-sided] proposal and I think it is up to Mikeee's side to make a [more reasonable] counter proposal.