Yes, my appreciation of Joiner just went up a notch.

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

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.

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.

<
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

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!

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

Yes these things can get very pressured! There was a border dispute in our village last year that ended up with a murder!!

Mikeee

Joiner - glad it's all worked out but if you should never settle out of court, you should also never accept a formal caution.

Is this the first case of woodsmoke rage then?

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.

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.

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.

Mike, whisper me your surname please and I'll get this stuff off to you this afternoon.

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.