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    • CommentAuthorMikeee5
    • CommentTimeJul 7th 2012 edited
    Welcome to the thread. It's quite a read but to cut a long story short, wood was wood, smoke was smoke and a happy end to my saga was ..........
    Sorry to hear that you are having this problem.

    How do you think burning logs would better than off cuts of 2x4 or pallets?
    The chances are that pine 2x4 and pallet wood are going to be a lot dryer than logs. if you insist that they burn logs you might be making the situation worse.
    Its is combustion temperature that determins how cleanly untreated wood burns, the higher the moisture content, the lower the combustion temperature and the more "smoke" produced
    • CommentAuthorborpin
    • CommentTimeJul 7th 2012 edited
    Posted By: bot de pailleHow do you think burning logs would better than off cuts of 2x4 or pallets?
    IME Most pallets are painted and may even be made from pressure treated wood.

    Mikeee - as your neighbour seems to be uncooperative I would suggest a few photos of the pallets and a complaint to either BC or EH on the basis of 'dry split logs'. Does the certificate of the stove have any information on the dryness of the wood when tested? Not sure who actually certifies things like this - perhaps talk to them?
    • CommentAuthorBeau
    • CommentTimeJul 7th 2012
    I think most pallets would burn fine. I suspect the problem is how they use their stove. Most dry wood burned incorrectly can give off nasty fumes and smoke even in a good quality appliance, but trying to show your neighbors how to use a stove properly might prove a bit tricky :devil:

    Once up to temperature a good stove with decent fuel will not give off any visible smoke just a heat haze coming from the chimney.

    I hope you find a good resolution and that your asthma improves.
    Mikeee5 -
    The type of fuel burnt and type of stove only allows the appliance to be used in smoke control areas but does not mean it can emit "smoke or other effluvia so as to cause a nuisance" or dark smoke.
    You have two issues 1. is the appliance fuelled with appropriate fuel (probably is, as is the EHO's opinion). BUT ALSO;
    2. Does the appliance emit either dark smoke (for more than the specified exemptions of the Clean Air Act) and/or emit smoke as to be a nuisance.

    If the answer to either of No.2 is "yes" then it doesn't matter what the fuel is, it will be an offence (Clean Air Act or Statutory Nuisance - Environmental Protection Act). Therefore, it seems likely that you will have to gather evidence (by way of photographs & diary) of the smoke emitted - which the EHO should have advised. However, if the EHO has witnessed the "offending" smoke and does not consider it to be "dark" (using Ringlemann chart) or sufficient to be nuisance then you'll just have to put up with it. Just because you can smell it or it aggravates your Asthma doesn't necessarily means the neighbour is doing anything wrong. I do know of a few cases of wood burning stoves that have been prohibited in smoke control areas following smoke nuisance complaints ( not prohibited because of the Clean Air Act but following contravention of a Notice to Abate a Statutory Nuisance)so it'll probably be down to that.
    • CommentAuthorTimSmall
    • CommentTimeJul 7th 2012 edited
    The key thing would be moisture content, you can work this out given the timber species, and volume+weight of a sample. I suspect the DEFRA tests are carried out at a specified moisture content, and the stove manufacturer may specify a max water content too. You could use this to see if what they're burning is equivalent to "dry" logs or not. As has been said, any treated timber (e.g. the 4x2) would be a no-no.

    If you still don't get any joy then a workaround might be for you fit a ventilation system with a HEPA filter (this would work if the particulates are causing your Asthma) - not cheap, but might be better than nothing...
    • CommentAuthortony
    • CommentTimeJul 7th 2012
    Mikee I have loads of concerns, is the wood they are burning treated? if so the fumes will be more noxious, if the wood comes from waste skip or skips then it is illegal to burn it. Wood smoke is bad news health wise, in my area air quality id degrading fast.

    see http://www.greenbuildingforum.co.uk/forum114/comments.php?DiscussionID=9232&page=1#Item_30
    Not all wood/pallets are treated timber. In the original post it was already stated that an EO had visited the neighbours and checked that what was being burnt wasnt treated timber.
    I think we are confusing what treated timber is. For Clean Air Act purposes treated timber is timber treated with a preservative or other impregnation or surface coating, it does not mean timber that has been put through a plain (Otherwise logs would be treated timber because they have been cut and/or split).

    And, Yes, if the neighbour is taking in old pallets or even offcuts from manufacturing then, technically, this is commercial waste and he would need the benefit of a waste management licence - but you would be flogging a dead horse to get the Environment Agency to act on this.

    Statutory nuisance is realistically the only "enforcement" avenue.
    • CommentAuthorMikeee5
    • CommentTimeJul 8th 2012 edited
    As mentioned in my last post, this is my neighbours second attempt of burning wood to heat their home. Their first installation was a second hand multi fuelled boiler which they had installed themselves. The boiler was not DEFRA exempt and the installation had no certificate of conformity. They were burning painted pallets, painted architrave, painted skirting boards, plywood and off cuts off rough sawn timber, the fumes where horrendous! Their son works for a local construction company and was bringing the majority of the wood from site, most likely from skips. As also mentioned, it took my local EH Department 8 weeks to get the smoke stopped. My breathing capabilities worsened in very short space of time and I had to have an emergency appointment with doctor where steroids were prescribed to help strengthen my lungs. Other health problems I suffered were burning sensations to the back of my throat, headaches and nose bleeds. I had to purchase oxygen from the internet and slept in a fume mask which is now black! I was of the understanding that the Environmental Health Department had more powers than the police and was very disappointed when they didn’t close the appliance down during their first visit as my neighbour could not produce a certificate of conformity for their installation when asked. On one occasion the fumes triggered a Carbon Monoxide alarm within my property, I informed my neighbour of this and showed him the beeping alarm. I told him that he had filled my home with smoke once again and that I had to have an emergency appointment with the doctors. He said “the council have told me that I`m doing nothing wrong, in fact I was just about to stoke the fire” he went back into his property and within minutes dark smoke was once again emitting from his chimney.

    My neighbours had a new DEFRA exempt 4.5 kw stove fitted in December by an HETAS approved engineer. A pile of thick branches (with leaves on) were delivered to his property shortly afterwards along with a large number of wooden pallets and a large pile of off cuts of wood ie. 4x2 rough sawn timbers. The fire was lit in December and we have been experiencing smoke and fumes in and around our property since then. I am now under the respiratory consultant at my local hospital and have been prescribed medication that is usually prescribed to people with COPD and emphysema to help me cope with the fumes.

    My neighbours have now built a lean-to shed and have gone very secretive what they do in terms of their stockpile of wood. However a large pair of old wooden gate posts appeared on their lawn a month ago and were cut into small sections! One of the gate posts appeared painted and the other would more than likely have been tanalised at sometime. Regarding the colour of the smoke, the fumes have been at their worst during the dark evenings and you can`t really depict the shade. However, we have a security light fixed to the gable end of our property which lights up the smoke when switched on. The EH officer has said that they are allowed 15 minutes of burn time when the fire is first lit where the chimney is permitted to smoke. Recently the chimney has been emitting smoke for 15 minutes then stops and emits smokes again approximately 15 minutes later for a further 15 minutes, this goes on from mid afternoon until 10pm. The majority of the time the smoke and fumes come down and just stick in and around my property. During the dark evenings the fire is normally lit around 5pm and smokes more or less continuously until around 10 pm. This is a very pungent smell!

    The EH officer has said that it has now become a problem right across the district and they are getting more and more complaints regarding smoke nuisance. We took a short walk into the village last night and we could smell wood burning in three properties as we walked past and it wasn’t even a cold night!

    Sorry to hear your health problems but in respect of this it's a simple case of statutory nuisance where "smoke is being emitted so as to be prejudicial to health (carbon monoxide) or a nuisance". You should keep a diary of times, durations and effects of the smoke which you should give to the EHO. I'm sure it wouldn't be too hard to establish nuisance and then an abatement notice could be served. The fact that they are burning commercial waste will not help their case! You always have the option to take action through the magistrates court yourself but give the EHO a chance first - he is tied up with his protocols and procedures so you cannot expect him to solve this instantly. Always be nice to the EHO because he is your biggest asset - loose his cooperation and you're on your own!
    Oh, and don't over do the asthma line, they've heard it 1,000s times before and it makes no difference to whether something is a nuisance or not.
    The positive thing that your EHO said about this issue becoming a problem across the district is that, if that's the case, then they must be getting better at dealing with it and should have a specific policy. ASK and don't forget the local councillor.
    • CommentAuthorJamster
    • CommentTimeJul 9th 2012
    Ask your EH why he is applying commercial legislation (15 mins dark smoke at start-up, etc) in a domestic setting. You could also do an FOI and ask how many nuisance notices that the LA has served in the last year. Not where they are or the details, just the pure numbers. I would suggest the number is low.

    Also try councillors, local MPs, etc.
    • CommentAuthorMikeee5
    • CommentTimeJul 9th 2012
    Are there guidelines for smoke at start up with domestic appliances? I had my local councillor involved during the first smoke issue and have written to my MP regarding the smoke from the DEFRA exempt Stove.

    • CommentAuthorJamster
    • CommentTimeJul 9th 2012
    I think nuisance is nuisance - the 15 mins comes from industrial emissions legislation. You could also ask for a copy of the LA's operating procedure / policy on investigating nuisance complaints and see if there are any other buttons to push...
    • CommentAuthorCWatters
    • CommentTimeJul 12th 2012 edited
    Mikee5.. Keep that diary of events going as it's really important. Tell the EHO you are keeping a diary. The EHO is meant to consider if the problem would represent a nuisance to the average person. If so he should take action. If the EHO doesn't do that then you could make a complaint to the Local Government Ombudsman (about the EHO not the smoke problem).
    • CommentAuthorwindy lamb
    • CommentTimeJul 12th 2012
    Mikee5, CW is right when he says the diary is important as the EHO can't stand outside your house all the time. But when the smoke affects you, then you are there so you can right down exactly what you see, smell, experience and over what time. So many times I've been asked to investigate nuisance but the complainant couldn't be bothered to fill in a diary form - so how bad could the "nuisance" be then?
    The 15 minute rule is for commercial boilers at start up only. Doesn't apply regarding domestic. Nuisance is different - you could have acrid black smoke for 3 minutes which could be a nuisance or light smoke for several hours that could be nuisance. It depends on whether it affects the "quiet enjoyment of your property", is seen as unreasonable in nature and extent etc etc - that's why EHO's do a 4 year degree!
    • CommentAuthorskyewright
    • CommentTimeJul 12th 2012
    Is the smoke sufficiently dense that it would show up on photographs (as extra support for the diary entries)?
    • CommentAuthorMikeee5
    • CommentTimeJul 12th 2012 edited
    The smoke is defiantly ruining the enjoyment of my property! A social evening on sunday with friends was ruined as smoke and fumes cascaded down the roof and on to the patio area where we were sat! Went on from 18.30 until 21.30 hrs. All nicely video recorded and entered in the diary. I have been in touch with my house insurers and it Is looking like i may be insured for legal expenses. I have also lodged my complaint with the local government ombudsman today! 

    I still stand by this section of the clean air act 1993:
    2. The fireplaces listed in the Schedule are exempt from the provisions of section 20 of the Clean Air Act 1993 (prohibition on emission of smoke in smoke control area), subject to the conditions listed in the Schedule.

    The conditions are: fuelled with dry split logs only, not pallets, not rough sawn timber!

    • CommentAuthorwindy lamb
    • CommentTimeJul 13th 2012
    Not sure you should have complained to the Ombudsman just yet - has the EHO/EH Dept. really been unreasonable in how they have/are investigating the complaint. Unless they have failed to follow procedure then all you've done is loose your best chance of affordable resolution. Still, you know how they have treated you, we don't.

    Sunday's social is just the evidence you need and don't forget to get your guests to write statements - they have no axes to grind so will add weight to your case. I would be surprised if the EHO didn't respond to evidence like that.
    • CommentAuthorTimber
    • CommentTimeJul 15th 2012
    Be careful what you wish for (regarding the split logs). As long as the timber is untreated, sawn softwood timber is likely to burn cleaner than a slightly wet chunk of hardwood. Obviously treatment and paint is a problem.

    It really sounds like it might be as much about how the burner is used rather all about the timber. UNtreated rough sawn softwood should burn really really well in a well used and setup wood burner.
    • CommentAuthorMikeee5
    • CommentTimeJul 16th 2012 edited
    You could be right. I think my neighbours have had a change of fuel this weekend. The chimney smoked almost continuously on Saturday evening and filled my house with fumes once again! The smell was more like a bonfire of freshly cut branches. They have been doing some gardening recently and I wouldn’t be surprised if they have thrown all their garden waste on their stove! The last time I complained to my neighbour about the smoke he said it would be up to me to prove what he was burning! This is a near impossible task. I think the Environmental Health Department should have concentrated their efforts on monitoring the smoke and fumes (if they had monitors!).

    There appears to be a lot of responsibility with operating these stoves. It is fairly straight forward if a fire has to be fuelled with approved fuels, the bag of fuel has a stamp of approval and its a simple choice. However, the DEFRA exempt wood burning stoves can be fuelled with unapproved fuels and the choice of timber is vast, hence the title of this post, is wood wood?

    • CommentAuthorwindy lamb
    • CommentTimeJul 16th 2012
    Mikeee5 - smoke nuisance is the path to go down as it would be impossible to prove the fuel type - that's why your smart mouthed neighbour said it. Unfortunately, EH Departments don't generally have smoke monitors as these are incredibly expensive and temperamental lazer/infra-red things so most use the human eye (EHO) and they, probably, allocate 3 x 1 hour visits then that's your lot. That's why you need the diary and photos.
    I used to have to monitor a huge chip board factory for smoke nuisance/complaints when I was an EHO - the main reason I'm no longer an EHO!
    • CommentAuthorJoiner
    • CommentTimeJul 16th 2012
    You need to take action under Section 82, which facilitates a prosecution by a member of the public. The process is simple and costs nothing unless you employ a solicitor to appear for you in court.

    I know the process works because I prosecuted a neighbour for statutory nuisance under the section and won. The local EH department actually advised me to go down that route (they act under Section 80: "The local authority can serve an offending occupier with an abatement notice to cease the nuisance (s.80(1)).") because following due process through them would have taken "too long".

    This is from Wikipedia...

    "Section 79 defines several statutory nuisances:

    Any premises in such a state as to be prejudicial to health or a nuisance;
    Smoke emitted from premises so as to be prejudicial to health or a nuisance;
    Fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;
    Any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;
    Any accumulation or deposit which is prejudicial to health or a nuisance;
    Any animal kept in such a place or manner as to be prejudicial to health or a nuisance;
    Noise emitted from premises so as to be prejudicial to health or a nuisance; and
    Noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment on a highway, road, footway, square or court open to the public.

    Some exclusions from these categories exist including contaminated land (s.79(1A)), activities of the armed forces (ss.79(2) and 79(6A)(b)), certain (i.e. specific) categories of smoke and dark smoke (s.79(3)), traffic (s.79(6A)(a)) and demonstrations (s.79(6A)(c)).

    Local authorities have a duty to make periodic inspections of their area or in response to a complaint from the public (s.79(1)). The local authority can serve an offending occupier with an abatement notice to cease the nuisance (s.80(1)). The occupier can appeal the notice, within 21 days, to the Magistrates' Court, in England and Wales, or Sheriff Court in Scotland (s.80(3)). Otherwise, it is a crime to fail, without reasonable excuse, to comply with the notice (s.80(4)), punishable on summary conviction by a fine at level 5 of the standard scale, rising by ten percent for every further day on which the nuisance continues (s.80(5)). If the offence is committed by the occupier of business premises, the maximum fine is £40,000 (s.80(6)). Where the notice is not complied with, the local authority may take reasonable action to abate the nuisance and recover the expenses from the occupier (s.81(3)-(4)), if necessary by installments or by making a charge on the property (s.81A(1)).

    Any person aggrieved by a statutory nuisance may make a complaint to the Magistrates or Sheriff (s.82(1)). The court can order the occupier to abate the damage and, in England and Wales only, impose a fine of up to level 5 on the standard scale (s.82(2)). It is a crime, without reasonable excuse, to disobey such an order, punishable on summary conviction by a fine at level 5 of the standard scale, rising by ten percent for every further day on which the nuisance continues (s.82(8))."

    And 'windy' is right with regard to the use of industrial waste, you need a licence just to take it off site, especially in a van!

    Section 82 isn't a well known section of the law and I found myself knowing more about it than any of the legal bods I went up against in court. The folder I have on my case is a thick one, but if you want the information I'll happily photocopy it for you and send it. I know how murderous you can get at the indifference of people who arrogantly disregard the consequences their actions have on others.

    I also believe you would have a subsequent case against the EH department for "suffering" the nuisance to continue after being apprized of the evidence of a clear statutory nuisance. "Sufferance" is a legal expression, it was why my action was against the owner of the property from which the nuisance came and not the person causing it, because they were doing everything they could to confuse the issue of who was responsible so it came down to the person "suffering the nuisance to continue".

    There comes a time when it's a waste of breath to continue arguing. :devil:
    • CommentAuthorwindy lamb
    • CommentTimeJul 16th 2012
    So Joiner has successfully done a Section 82 - well done you. Few people have the nerve or the conviction to do that. With a re-occurring stat. nuisance it is usually straightforward to serve a notice under section 80 but sometimes the EH Dept. simply don't have the staff to devote to an investigation for sufficient time to witness the nuisance. That's why section 82 is there.
    Anyway, if you go down that route you will be surprised how simple it can actually be - so long as you can keep your emotions out of it. The difficulty arises when the EH Dept. has witnessed the problem but don't consider it sufficient to constitute a nuisance - if that's the case, you'd better do something else with your time.
    • CommentAuthorCWatters
    • CommentTimeJul 16th 2012
    Is the smoke bad enough to trigger your smoke alarms? Having video clips of smoke with your alarms going off in the background would be quite powerful evidence to present in court.

    If not already done you should also write to the neighbour (recorded delivery) to formally warn him of the statutory nusiance he is causing . My understanding is that if someone continues to cause a nusiance despite being warned then they leave themselves open to a negligence claim as well.

    Check your house insurance as it may provide legal cover. If it does then contact them when you have a nice diary full of evidence.
    • CommentAuthorJoiner
    • CommentTimeJul 16th 2012
    Windy, had the OP taken up my offer I'd have warned him that it can be a daunting prospect, but as you've raised it here I might as well explain why for the benefit of any others who come along.

    Depending on the circumstances of the person you're prosecuting they could be entitled to Legal Aid, whereas you won't be. In my case I had to take on the defendant's solicitor at the preliminary hearing and a QC at the actual hearing. Both those legal types at their respective hearings kept insisting that the reason I was going down the Section 82 route was because the council had backed down because they considered there was no evidence of nuisance. That wasn't so, but because the Council had stepped away from the case they didn't want to get involved further than allowing me sight of the actual Act and all their Guidance Notes with all the case law, legal opinions and judgements. I had a folder about an inch thick, the defending solicitor had nothing and the QC had just print-outs off the internet, which is when I knew I had them by the balls. They simply hadn't prepared and thought they'd bully their way through the court process by treating me with the contempt usually reserved for laymen mixing it with professionals. Hmm.

    At this point it has to be said that I was lucky in not being a "typical" plaintiff, having studied law for two years as part of my business degree. Whilst that didn't make me a lawyer, it did mean I understood what I was looking at when I was reading the Act and the associated Guidance Notes and the language in which they were couched.

    I pulled the solicitor up on three points of law, all of which were serious errors on his part, and when he turned to the bench and asked if he had to continue putting up with “these interruptions” he was told by the clerk of the court: “Yes, Mr X, because he's absolutely correct to point out your errors.” She didn't like him either!

    But to get to the point I made earlier about the importance of video evidence and detailed logs, when we got to the actual hearing the QC asked if I had the videos with me and could we go into a side room and watch them? No problem. We sat side by side, him with his notepad, on which he occasionally made short one or two word 'notes'. After a while he asked how much of the video I had and I told him “about three hours”. He closed the notepad and asked me to switch the video off.

    He then turned to me and said: “If you repeat what I'm about to say to you I will deny it and prolong this case for as long as I can.”


    “How long have you put up with this?”

    'Close on two years.'

    “Had it been me I would have put a brick through his frigging (edited) window. Would you agree to settle this out of court?”

    'We never wanted to be here in the first place.'

    To give him his due he did tell his client that she'd be stupid to carry on and risk a fine, which somewhat surprised me, and she was definitely not happy. But we did settle it and within three months the problem started again. The dog returned from wherever it had been sent and the music was as loud as it ever was, prompting a letter from me warning that if they didn't observe the terms of the agreement we would have to take them back to court. The events following that letter is why I have a criminal record for assault.

    Moral? Don't settle out of court.

    All that said, in the words of Judge Sullivan: “It is important that ordinary members of the public who may not have any legal experience are not deterred from pursuing complaints which are well founded on the merits by over-technical procedural requirements.”

    And you'll find that still applies. The court is very understanding and forgiving of procedural errors (like calling them something other than 'Your Worship', or sitting down when you should be standing).

    And in the words of Chief Justice Lord Bingham: “It would frustrate the clear intention of Parliament if the procedure provided by Section 82 were to become bogged down in unnecessary technicality or undue literalism. It is important that the system should be operated by people who may be neither very sophisticated nor very articulate, and who may not […] have the benefit of specialised and high quality advice.”

    Think Small Claims court.

    And in the Scottish case of Adams v. Glasgow City Council: “Here it was held, amongst other things, that s.82 notices should only be required to indicate broadly the nature of the complaint even where legal advice has been taken. The court was strongly of the view that overtechnical requirements might be a dis-incentive to members of the public raising statutory nuisance proceedings.”

    You have a case. Go for it.
    • CommentTimeJul 16th 2012
    And try to avoid the assault charge... %-P


    • CommentAuthorJoiner
    • CommentTimeJul 16th 2012

    Difficult. In comparison, the court bit was the easy part.

    He was 20, coming on 21. I was 59. He was a convicted burglar, a minor dealer of drugs and had acquired a reputation for violence even at school, from where he was frequently suspended. When someone like that pushes his sneering face to within three inches of yours the target is too much of an invitation to ignore.

    These situations drive you to the brink and when the red mist comes down...

    (Cue ominous music.)
    • CommentAuthorwindy lamb
    • CommentTimeJul 16th 2012
    Joiner - you are, of course right.
    • CommentTimeJul 16th 2012 edited
    Been there (or somewhere close) more than once, Joiner, red mist included, but luckily some combination of my innate cowardice and bad aim has saved the dolt opposite me every time so far... Though it did finally get though to the people concerned that I really was VERY VERY ANGRY and their behaviour adjusted at least a little in the right direction.


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