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  1.  
    What a thoroughly entertaining turn to this thread...
    :bigsmile:

    J
    • CommentAuthormarktime
    • CommentTimeJul 16th 2012
     
    Yes, my appreciation of Joiner just went up a notch.:bigsmile:
  2.  
    ...not to mention Damon's neat summary of the more realistic position of the rest of us!

    :bigsmile:

    J
    • CommentAuthorMikeee5
    • CommentTimeJul 16th 2012 edited
     
    Ha Ha. Your post has brightened my day Joiner, well done.

    I have also received an email from my house insurers confirming that I have cover for legal expenses. I have got to pay an access of £250.00 and then they will appoint a solicitor who will assess my claim to see if my claim has a better than not chance of success. They have said it will need prospects of success of over 51%.


    <blockquote><cite>Posted By: CWatters</cite>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.

    Yes the smoke has been setting smoke alarms off in my property, unfortunately I didn’t think to video it. I do have a photo of the Carbon Monoxide monitor with a reading of 256 ppm though.

    Mikeee
    •  
      CommentAuthorSteamyTea
    • CommentTimeJul 16th 2012
     
    Posted By: Mikeee5They have said it will need prospects of success of over 51%.

    Do they mean 'prospect' or 'probability'.
    If probability I am sure something can be cobbled up to show that it is higher. Statistics are your friend.
    • CommentAuthorFahrenheit
    • CommentTimeJul 16th 2012 edited
     
    I'm in the wood burner business and I would have thought if you can provide some kind of evidence it's hindering your life then you'd have a case. Proving and winning it is a different story though. Techically it sounds like your neighbours installation complies with building regs and smoke emission standards but if it is actually effecting your health then it's not good.

    It's a big of a grey area though. Look at cigarettes. Everyone knew it was damaging to health but you could still smoke in a pub 5 years ago.
    •  
      CommentAuthorSteamyTea
    • CommentTimeJul 17th 2012 edited
     
    Posted By: FahrenheitEveryone knew it was damaging to health but you could still smoke in a pub 5 years ago.

    And look what has happened since, the complete breakdown of the world financial system, we were warned.
    • CommentAuthorJoiner
    • CommentTimeJul 17th 2012
     
    From the evidence adduced so far, it sounds as if the neighbour's installation, whilst complying technically with the law, is being placed outside it by the neighbour's use of it.

    Bit like blaming the car for what the clown behind the wheel does.
    • CommentAuthorCWatters
    • CommentTimeJul 17th 2012
     
    Make sure you have plenty in the diary/log before you go to the insurance companies solicitors. I suspect you may only get one go at convincing them you have a case. I wouldn't send the original off in the post either.
    • CommentAuthorMikeee5
    • CommentTimeJul 17th 2012
     
    <
    Do they mean 'prospect' or 'probability'.

    Here is the wording Steamy:

    consider if your claim has a better than not chance of success, other wise known as considering you have prospects of success of over 51%.



    It's a big of a grey area though. Look at cigarettes. Everyone knew it was damaging to health but you could still smoke in a pub 5 years ago.</blockquote>

    I think the difference is you had a choice whether or not to enter a smoky pub. It`s not my choice to have my home filled with smoke!

    Mikeee
    •  
      CommentAuthorSteamyTea
    • CommentTimeJul 17th 2012
     
    Start looking up other cases including the outcomes and if you can find any about smoke all the better.
  3.  
    mikeee5
    wot CW said above.
    Whilst a solicitor may take the case to court its YOUR case. From my experience YOU will have to do all the evidence research to give to the solicitor and make the case for the solicitor to present. So as has been said photos, videos, witness statements and medical statements and as much documentary evidence and diaries as you can get because you will only get one chance to - first persuade the insurance company the case is winnable - so they will have a warm feeling about being able to claim their expenses from the other side - and second once in court you only get one chance to prove your case.
    And keep a copy of everything!
    • CommentAuthorJoiner
    • CommentTimeJul 17th 2012 edited
     
    Just be aware that solicitors often don't know a thing about Section 82 prosecutions and will usually say they'll get advice from a barrister. The action is very rare for two reasons: very few people know about Section 82, and when they are pointed towards it the prospect of taking the action themselves is too daunting.

    It took me several attempts to get the correct paperwork from the local High Court offices and eventually had to make an appointment to meet with the person who eventually turned out to be the Clerk of The Court for my case, when I was able to explain s82 to her which enabled her to know what she was supposed to be looking for. To give her her due, she did say: "I think I need to gen-up on this stuff." She did, which is why she put down that odious little solicitor I was up against at the preliminary hearing.

    If you do need anything, let me know via a whisper and I'll give you my email address and I can arrange to have the relevant documents sent to you, although you'll have to translate the noise nuisance into a smoke one!
  4.  
    Hi,

    I googled the "section 82" just to have a look. First thing that came up was the The Reigate & Bansted Gov website

    http://www.reigate-banstead.gov.uk/environment/environmental_health/environmental_protection/noise_nuisance/noise_advice/legal/legal_definitions/index.asp

    seems quite clear item b smoke emitted so ciould be a regular bonfire for example and gives the following

    Other important differences include the following:
    1. A matter which is a statutory nuisance must fall within one of the following categories.
    (a) any premises in such a state as to be prejudicial to health or a nuisance;
    (b) smoke emitted from premises so as to be prejudicial to health or a nuisance;
    (c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;
    (d) any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;
    (e) any accumulation or deposit which is prejudicial to health or a nuisance;
    (f) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;
    (fa) any insects emanating from relevant industrial, trade or business premises and being prejudicial to health or a nuisance;
    (fb) artificial light emitted from premises so as to be prejudicial to health or a nuisance;
    (g) noise emitted from premises so as to be prejudicial to health or a nuisance;
    (ga) noise that is prejudicial to health or a nuisance and is emitted from a vehicle, machinery or equipment in a street
    (h) any other matter declared by any enactment to be a statutory nuisance.
    2. Statutory nuisance law is based in public health legislation and for something to be a statutory nuisance there must be an effect on health or wellbeing.
    Also, as stated in the section above on common law nuisance, the specific sensitivities of those suffering cannot be taken account of - the test is therefore whether a typical person would be expected to suffer some health effect from the nuisance

    There is also a tab specific to Section 82 and a downloadable pdf file to assist.

    Cheers, Mike up North
    • CommentAuthorJoiner
    • CommentTimeJul 17th 2012
     
    A useful document, Mike. Nothing like that around ten years ago, but then most people still didn't have access to the internet so LAs didn't make stuff available in that format.

    I didn't have to attend court to prove the nuisance before they issued the summons, I just had to submit a statement outlining my complaint.

    This thread prompted me to drag out all the guff associated with my case and it makes fascinating reading, especially my statements concerning subsequent events. For all the plain 'statement of fact' I can still detect the underlying emotion and the rage that stoked it.

    When I got the formal caution it all got a bit emotional, especially as the copper doing all the fingerprinting and photographing was someone I knew well and got on well with. He was almost in tears. When I walked through the station with him another guy I knew in passing came up and put his arm around my shoulder. I was friggin hugged by a copper!

    Long story, but it highlights just how uptight you get with such ongoing incidents to which there appears to be no end in sight...

    The neighbour did eventually sell. The new people came separately, her in a friend's Volvo, then a very big guy on a very big Suzuki bike. When he took off his helmet he was a skinhead. Oh Jesus H.

    Later that day I had to go into town and as I passed the door of their place the guy came rushing out and walked towards me waving his arms. There was no way I was going to let him thump me so I leapt out of the van and braced for impact.

    "You're the neighbour?"

    'Yeah.'

    "Sorry to stop you like that but I just needed to tell you that our removal van is due and we didn't want to cause you any inconvenience. My name's Simon, and that's (pointing up at his smiling partner looking through their landing window) Jules. We wondered if you'd like to come up for a drink later?"

    I nearly collapsed with relief and the guy stepped forward to stop me keeling over.

    "You alright mate?"

    Was I alright?!!!

    A sixty-year-old guy cried all the way into town, the release of tension was so great. I phoned my wife and told her and she instantly burst into tears.

    They're still friends. Our daughter bought the place off them privately, the price agreed being the middle one of three valuations, whatever the place was valued at.

    Not all outcomes are as happy. Some people commit murder.

    Unless you've been through it, you cannot know what it's like. It's why I'm always on the side of the aggrieved.
    • CommentAuthorMikeee5
    • CommentTimeJul 17th 2012 edited
     
    Yes these things can get very pressured! There was a border dispute in our village last year that ended up with a murder!!

    Mikeee
    • CommentAuthorseascape
    • CommentTimeJul 17th 2012
     
    Steady...
    • CommentAuthorwindy lamb
    • CommentTimeJul 17th 2012
     
    Joiner - glad it's all worked out but if you should never settle out of court, you should also never accept a formal caution.
    • CommentAuthorJoiner
    • CommentTimeJul 17th 2012
     
    windy - join the queue of people who lined up to tell me that AFTER the event.

    Like most law-abiding people, the prospect of appearing in court on an assault charge after I'd admitted hitting him wasn't something I relished. The formal caution seemed at the time to be the lesser of two evils.

    We've got a few police contacts both in the family and amongst the families of friends and they went ape when they heard what I'd done. The cry was "Why didn't you phone us?" The simple answer was that I didn't want either to embarrass them or take advantage of their friendship.

    It was actually a police sergeant customer who explained that the criminal justice system wasn't about justice it was about the law and criminal law is a game played by all those involved in it. How was I supposed to know that?

    What I should have done was plead 'not guilty' because what I didn't know was that I had the perfectly legitimate defence of self-defence: I was on my property and reacted because I was in fear for my safety.

    The copper who took my statement repeated the question: "Did you hit him?" three times, the second and third time adding: "No, I don't think you understand the question. Did you hit him?" By the third time I was answering him as if it was him who was being stupid, not me.

    I met that copper (now retired) at the funeral of the police officer father of one of our close friends, and he said: "I still tell your story." At least I got the chance to thank him for what he tried to do. He said that at the time he wanted to grab me by the lapels and shout: "JUST SAY BLOODY NO!" But of course he couldn't advise me what to say or guide me in any way. It's why he felt so bad when he administered the caution. All the coppers in the station knew what was going on as well, which is why they were all so concerned.

    One thing I did learn when we all went back to a pub for the wake, was that on hearing about the formal caution the odious little defence solicitor I had been up against in court had written to the CPS insisting that they also charge me with harrassment, and that if I dared to follow through on my threat to return to court with the original "trumped-up" charges it would be me who would be defending a counter-claim for exemplary damages.

    So don't extend too much admiration my way. In losing control I handed over control of the situation to the bad guys.
    • CommentAuthortony
    • CommentTimeJul 17th 2012
     
    Is this the first case of woodsmoke rage then?
    •  
      CommentAuthorDamonHD
    • CommentTimeJul 17th 2012
     
    I doubt it.

    That's probably Neolithic, and thus Joiner may not have been born for it, quite... %-P

    Rgds

    Damon
    • CommentAuthorJoiner
    • CommentTimeJul 17th 2012
     
    :bigsmile:

    In some American towns, the windows of wood burning houses have been smashed, and some towns have banned them altogether. When I was looking into the situation in other countries, when the biomass and fuel for the 21st century threads were still very much on-stream, I was amazed at how militant people were in some US towns that had introduced local ordinances against wood-burners.
    • CommentAuthorMikeee5
    • CommentTimeJul 18th 2012
     
    Sounds good to me cough! cough! Kitchen filled with smoke again while having our evening meal last night! I managed to get two twenty minute videos of the smoking chimney. I've thought about fitting some smoke alarms on the chimney and around various parts of my property to highlight the smoke!

    How does a section 82 work? I've never had to go to court before. Would my neighbours be fined for damages to health or does it prevent the fire from being used all together? I'm not that bothered about a payment for damages but if it takes a kick in my neighbours wallet to get the smoke stopped so be it!!

    Mikeee
    • CommentAuthorJoiner
    • CommentTimeJul 18th 2012
     
    Mike, it's in my earlier post...

    "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))."

    In...

    "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))."

    The fine is for allowing the NUISANCE to continue after being served with the abatement notice.

    What your EHOs have failed to acknowledge is that the issue has not to do with the STOVE or whether it's compliant, it's with the bloody NUISANCE.

    If someone is causing a nuisance with noise from a radio and served with an abatement notice which they subsequently fail to comply with, they're fined for the nuisance from the noise from the radio, not for owning the radio that's causing the nuisance.

    IT'S THE NEIGHBOURS WHO ARE CAUSING THE NUISANCE WITH THEIR WOOD-BURNING STOVE.

    Even if they are legally allowed to use their compliant stove, what they're not allowed to do BY LAW is use it to cause a nuisance, especially one injurious to health.

    We allowed our nuisance to go on for too long before doing something to stop it because my wife "didn't want trouble" and so thought it possible to appease the neighbours. After two years even she realised that had been a mistake. Continuing to put up with it is what builds the stress, quite apart from demonstrating to the perpetrators that they can not only "get away with it" but get away with it with official sanction.

    The choices before you now are to either take EFFECTIVE action to stop the nuisance or sell up and move.

    Incidentally, it's your mailing address I need for those documents, Mike. They won't travel well by email because the Section 82 stuff is small text that won't scan, email and then print out your end so that it can be read easily.

    :wink:
    •  
      CommentAuthorJSHarris
    • CommentTimeJul 18th 2012
     
    <blockquote><cite>Posted By: Joiner</cite>
    The choices before you now are to either take EFFECTIVE action to stop the nuisance or sell up and move.</blockquote>

    Very well put.

    This decision really needs to be made BEFORE you have raised the problem officially though, as we discovered years ago. We bought a new house in 1992, on a small development of 6 houses. The developers daughter moved in to the house next door and was a complete nightmare, making a tremendous amount of noise night and day, including loud music until the early hours most nights.

    We raised it with her and got told to "F*** off", she was not a particularly nice woman. We then found that the developer applied pressure on us to stop complaining, as he had three unsold houses on the development. I tried to get him to deal with his daughter's noise, but he just laughed it off by saying she was young and entitled to have a good time.

    We thought about raising it with the EHO, but decided that if we did, and then had to sell the house, we would have to declare the noise problem when we came to sell. One of the standard questions you have to answer when selling a house is whether there have been any complaints like this, apparently, and if you don't own up to it then you're effectively in breach of contract come the sale.

    Our decision was to sell the house and move, without saying another word about the noisy neighbour. This sort of sidestepped the legal issue over having to declare the noise problem when we sold the house, and got us away from the constant stress. One of the most stressful elements wasn't so much the noise itself, but waiting for it to start. We'd go to bed, certain that by 2 am we'd be wide awake from the loud music that'd start when the girl came back from clubbing.

    If you're going to take action for nuisance then I think you have to be serious about it, try and discard emotion and collect as much hard evidence as possible. You only get one crack at it really, so the presentation of that evidence has to be as clear and objective as possible, and free from all the understandable emotional upset. If you, the complainant, come across as a patient and rational person who has a genuine grievance, then I think you're far more likely to succeed than if the evidence is presented emotively.
    • CommentAuthorwindy lamb
    • CommentTimeJul 18th 2012
     
    People who cause nuisance are either ignorant of the fact or just ignorant. The first group stop when informed of the problem, the second group only care about themselves and only stop when forced - they are often bullies and liars with previous experience of the legal system! That is why YOU must have hard, factual evidence so that their lies to the magistrate can be shown as just that. You cannot let the bullies of this world win.
    I wish you success- I'm sure you will be.
    • CommentAuthorMikeee5
    • CommentTimeJul 18th 2012 edited
     
    Thanks Windy. Reading between the lines, if a section 82 is issued it should include smoke nuisance from when it first started last October regardless of the fact my neighbours changed their wood burner to a DEFRA exempt stove. And surely the Environmental Health Department should be including my complaint from last October in their continued investigations also and should have served an abatement notice to cease the nuisance regardless of what fuel my neighbours are using and how the Stove is being operated?

    Mikeee
    • CommentAuthorJoiner
    • CommentTimeJul 18th 2012
     
    Mike, whisper me your surname please and I'll get this stuff off to you this afternoon. :wink:
    • CommentAuthorwindy lamb
    • CommentTimeJul 19th 2012
     
    Mikeee5 - going from your posts it would seem the EH Dept. could have served an abatement notice a while ago, it's immaterial what fuel is being burnt as to whether it's a nuisance or not. A Notice could have been fairly open and just stated "undertake such measures as to abate the nuisance" - loads of case law about whether you should specify exactly what they would need to do to abate the nuisance eg, "fit a Acme No-smoke 700" but because there are an number of ways which could be taken to stop the problem it would be reasonable to give them the option eg, use the correct fuel, increase chimney height, upgrade boiler, stop lighting it etc.
    The Section 80 (EH Dept) or Section 82 (you via magistrates) wouldn't have any reference to when the nuisance first occurred, just that a nuisance has occurred and is likely to re-occur and, therefore, steps should be taken to abate that nuisance. I can't remember much about the Section 82 - ask Joiner, he'll know!
    The Section 80 Notice is just that - notice that a nuisance has occurred and is likely to reoccur and ordering one to remedy the situation. It's the failure to remedy the nuisance (breach of Notice) that becomes the offence and then would be subject to a new investigation, court proceedings and fine for that breach. If the nuisance occurred on, say, 20 occasions after the Notice, then each one of the 20 would be a separate offence. Usually taken as one case but I once went to court for breach of notice, 3 separate cases all on the same day, one case after the other with the same defendant in front of the same magistrates. Each time the defendant appeared the fine got bigger and the magistrates really lost their patience when the bloke came in for the third time. Nuisance never occurred again! Good Luck.
    • CommentAuthorJoiner
    • CommentTimeJul 19th 2012
     
    :bigsmile: Reminds me of the time I attended a speed awareness course (alternative to points) and we were told about the girl who had lost her licence by accruing all the necessary points in the course of a single day, and that was passing the same speed camera each time!

    I've sent all the relevant photcopies to Mike and they should be with him by tomorrow at the latest. I'd been given them by one of the local EHOs who didn't mind getting flak for siding with me because he was due to retire anyway. He put me in an interview room with the Act and said to mark any page I wanted, then tell reception to give him a call and he'd photocopy them for me. You do need the Act and the Guidance, which gives all the case law and opinions, which is what gave me the edge over the odious little creep of a solicitor and the QC, the former having nothing and the latter having only what was (then, 10 years ago) available off the internet.
   
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