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Actually the healthiest way of cooking chips. Boils at a higher temperature and so seals the outside to cook the inside to a fluffy, healthy, fat-free consistency. The taste is heavenly enough to take your mind off any kind of nuisance.
In my case, the defence tried to argue that the reason I was taking the Section 82 route was BECAUSE the LA thought there was no case to answer. Easy enough to disprove in my case, in yours you're going to have to argue against the LA's arguments that their failure to stop the nuisance was because no offence was being committed (compliant stove), not that they couldn't prove it (absence of proof of nuisance to the complainant).
I have just received a letter from the Chief Executive of my local authority in response to my complaint how the EHD have handled the situation. She has said that she is happy that the officers have responded in a timely manner (it took 3 weeks to get a reply from the EH officer who is dealing with the case after leaving numerous messages with his colleagues to return my calls). She has said that the officer has visited my premises to investigate the smoke and he couldn’t substantiate contraventions or breaches of relevant legislation (The EH officer has visited my home twice since january and the fire wasn't even lit during his visits!) She has said that the installation has been carried out by an HETAS approved installer and they have taken advice from DEFRA on the type of fuels my neighbour can burn on his stove and have written to him to advise him of this. She concludes her letter by saying the EHD cannot therefore take any action in this matter and have had no choice but to close the investigation into your complaint.
"Liability in nuisance is strict in the sense that one has no right to carry on an activity which unreasonably interferes with a neighbour's use of land merely because one is doing it with reasonable care. If it cannot be done without causing unreasonable interference, it cannot be done at all.” THIS IS THE POINT - the stove may be compliant to the Clean Air Act but it doesn't mean it can be used to cause a nuisance. My car may be taxed, tested, insured but that doesn't mean I can run someone over!!!!!!!!!!!!!!!
Mikeee5- complain to the LG Ombudsman for maladministration. Typically for Local Authorities, complaints alleging nuisance will have to have a response within 3 working DAYS (that may be a standard letter but it's still a response). At the same time as you get a letter you also should get a diary form to complete (usually 3-4 weeks). At the same time your neighbour should have also got a letter informing him that a nuisance has been alleged and they should take necessary steps to avoid such nuisance. After 4 weeks, if you don't return the diary form then the EHO will assume their original letter to your neighbour has done it job and close the case. If you return the diary the EHO will either close the case because there is not sufficient indication of a nuisance (and inform you in writing) OR seeing that there may be a possible nuisance, give you 3 x 1 hour visits (using the info on your diary to coincide his visits with those times most likely to coincide with the smoke). If he does not witness any smoke or smoke which is not sufficient to be a nuisance, then he is entitled to close the case. If the EH Dept have followed these steps then you are very unlikely to have the ombudsman agree with you. BUT if any of these steps have been missed then you have a clear case of maladministration. Remember the EH Dept. should have a procedure and should follow that procedure, and that procedure much be fair and equitable to all parties. If I had failed to respond to a complainant for 3 weeks at any of the 5 Local Authorities that I've worked as an EHO for - then I would have failed myself, the boss, my colleagues, the system and the public. Shame on the profession.
Don't bother with LGO unless you have time to spare. I tried it over the hassle we experienced in buying the freehold here and, despite a letter from our solicitor (two pages, which he provided without charge because he was incensed over the way we'd been treated) listing in detail all the ways in which the LA had delayed the proceedings and made serious errors, despite a letter from our MP expressing his concern at the way our case had been handled, the LGO found the council had behaved correctly in all their dealings with us and our solicitor. The council employees concerned lied through their teeth, having got their stories together. There is no appeal.
Just had some more bad news. I've just had a conversation with the solicitor who is doing the assessment to see if I have a good chance of winning my case. He said that the courts are now swaying towards the environmental health department for judgment! I told him of the letter I have just received from the chief exec saying that they are happy that the installation complies with regulation (installed by HETAS engineer) and he is burning the correct fuels and have closed the investigation. I said from my understanding, if the smoke is spoiling the enjoyment of my home and is prejudicial to my health then it is treated as statutory nuisance regardless of the legality of the stove and fuel. He said it is going to be very difficult to prove especially now the EHD have concluded my neighbour isn't breaking any legislation. He also said this is the second case of smoke nuisance he has been looking into this week! I've been considering the sec 82 but fear I could run into the same stumbling blocks! The solicitor is going to have another look at it and see what he can come up with.
Ive just put a deposit down on a static caravan. We own 3 acres of land and are going to move there until the problem is sorted. I think its going to be a timely process!
Don't assume that a solicitor understands every aspect of the law. I've made that mistake once (and it cost me dearly). Solicitors are sometimes well-up on the law, sometimes they aren't.
In this case you're dealing with a case of nuisance, not whether your neighbour has a compliant stove, as has been said repeatedly in this thread.
You do have a case, a strong one if you can show that your right to quiet enjoyment of your property (and your health) is being adversely impacted by the ACTIONS of your neighbour (and it's his ACTIONS, not the stove or fuel that is the key here).
Take some time to gather evidence, be as objective as you can about it, forget all about the legality of the stove and the EHO hassle. You need to amass evidence of NUISANCE, then proceed using Section 82. Not easy, not quick, but you have a good case if you take the time to prepare it well and present it clearly, based on what you've said here.
It's in the conclusion, where it talks of the "limited nuisance caused by emissions is acceptable" during the start-up period as outlined by someone earlier.
The implication for Mike's case seems to be that if the emissions continue after that period then they could be argued to be unacceptable.
I think the solicitor's advice is craven and verging on the shameful. And, as Jeremy has said, probably stems from ignorance. He obviously has too much well-paid legal aid work on to bother with anything that requires him to metaphorically get off his ass.
"From an environmental health perspective, there may be occasions where, despite planning approval and an exempt appliance, third parties consider that the consequent emissions still have a negative impact on their quality of life. On such occasions, the claim may need to be assessed by Camden’s Environmental Health team to determine whether or not the emissions are, in fact, causing “nuisance”".
There's no mention of this being a bye-law specific to Camden, although a phone call to them might clarify that, especially if you can find someone in their legal department who can explain why it only appears to be Camden who have made that statement about exception to exempt applicances clear. (Well I haven't found such a statement anywhere else but on the Camden site.)
REMEMBER this ; EHDepts have finite time in which to investigate a complaint, usually 3x1 hour visits. Quite often this is not enough to witness nuisance but the case is closed anyway (because of targets and workload). Just because the EHO didn't witness nuisance DOESN'T MEAN THERE IS NO NUISANCE. It will not be difficult to show this in the evidence you are gathering. Tell that to you solicitor.
Mikeee5, also remember that the smoke can no longer be a nuisance if you are no longer living there to experience it. Bit like noise nuisance from a noisy neighbour - if you aren't there, you can't hear it, so it can't be a nuisance to you! So you can't have a nuisance affecting an empty property but you can have an empty property causing a nuisance.
Camden is not the only one to make this point. Mikeee5's borough has probably got some jobsworth who's more concerned with "investors in people" and all that other corporate crap rather than actually undertaking the statutory duties of an Environmental Health Department. For the last 15 years I've seen front line EHO jobs cut whilst management has expanded. Managers do not investigate nuisance, they line their own corporate nests and empire build. There's only one thing worse than managers and that's solicitors!! Mikeee5, you have a strong case don't be put off.
With you there, windy. Shropshire CC has just got rid of their Chief Executive and a whole tier of top management saving millions.
The council was also told by its HR officers that they wouldn't fill a certain senior post by paying an £80K salary and that they'd need to pay at least £125K if they wanted to attract the best from the private sector. They were inundated with applications of the highest calibre.
My daughter is working alongside an agency social worker who's on £40 an hour! It's a Labour controlled authority (NOT Shropshire).
Mike, hesitate not. Be resolute in the knowledge that you do have a case despite what the wombles say.
Mikeee5 - As I understand it your council have not said that the smoke is not a nuisance (not having actually witnessed it?) just that they don't consider it appropriate to investigate further because it is a compliant stove. That's not going to harm your case - it's just their misguided policy. If I was investigating this I would have, hopefully, been standing next to you when the smoke occurred. The first thing I would have asked is "am I witnessing what you considered to be the problem". If you said YES and it wasn't, in my mind, a nuisance I would have said so. If you said that it was usually much worse, then I would arrange another visit. If, at any time, I had witnessed nuisance I would be serving a Notice - After all it is very rare that a notice would prohibit the use of an appliance - just the use of it in such a way so as to cause nuisance.
And, of course, this whole matter raises the question of whether the flue and chimney are appropriate to allow the fitting of even a compliant stove as a replacement for whatever was there originally, not forgetting the effect on efficient smoke dispersal of surrounding trees and houses. Brian Wilson has made the point about considering the risk of inversion enough times for us all to be aware of it, and I'd be gobsmacked if the effect wasn't known to EHOs.
When I first started as an EHO, in the early 1990s, I had to regularly calculate chimney heights for industrial boilers and the like. Someone would send in a planning application for a chimney/stack and we would be consulted to calculate what the appropriate height would be. This height would then be put as a planning condition. So, yes, EHOs should be aware of turbulence, inversions, blarr, blarr.
Trouble is, these days, it is common for Councils to employ "technical" staff to undertake much of the work of EHOs. It's cheaper because they don't have to be qualified - you get what you pay for.
As we discovered during the battle that should have been a routine freehold purchase with historically associated strip of land immediately alongside over which we would have retained all the leasehold rights anyway. Our problem, as I suspect Mike will find out if you're right windy, is that unqualified staff simply refuse to acknowledge their lack of expertise.
Is it because smoke has traditionally been an industrial problem and the EHO has not caught up with the changes in domestic heating that are starting to happen?
I hope you lot are on jury service when I haul ass through court!!!
Thanks for your continued support, I can't thank you all enough. You can see how difficult it has been to get any help! Even my solicitor is reluctant to get involved!
And gusty, your suggestion of shoving the pallets where the sun doesn't shine has been contemplated! Along with stuffing pyrotechnics down the chimney. Thought this would be seen as "chiminal" damage so has been decided against!
I did Jury Service once. All I can say is that if I ever end up in front of one I know that fact has nothing to do with the decision. I dreadful experience and one I would not like to repeat.
<blockquote><cite>Posted By: SteamyTea</cite>I did Jury Service once. All I can say is that if I ever end up in front of one I know that fact has nothing to do with the decision. I dreadful experience and one I would not like to repeat.</blockquote>
Me too. On one of the cases the credibility of a key witness for some (female) members of the jury came down entirely to the view that she was inappropriately dressed, and was wearing inappropriate make-up, for giving evidence in court. The witnesses evidence was powerful and could well have caused a different verdict had not 80% of the jury been female........................
Mikeee5, Your "Chiminal damage" comment just made me swallow half of a bacon sani! Nearly killed me.... By the way, it's only criminal damage if they catch you!!!!!!!!!!
<blockquote><cite>Posted By: windy lamb</cite>Mikeee5 - As I understand it your council have not said that the smoke is not a nuisance (not having actually witnessed it?) just that they don't consider it appropriate to investigate further because it is a compliant stove. That's not going to harm your case - it's just their misguided policy. If I was investigating this I would have, hopefully, been standing next to you when the smoke occurred. The first thing I would have asked is "am I witnessing what you considered to be the problem". If you said YES and it wasn't, in my mind, a nuisance I would have said so. If you said that it was usually much worse, then I would arrange another visit. If, at any time, I had witnessed nuisance I would be serving a Notice - After all it is very rare that a notice would prohibit the use of an appliance - just the use of it in such a way so as to cause nuisance.</blockquote>
I have just been reading through the letters that I have received from the EHD since the smoke problem started with the new stove and they conclude as follows.
Letter Feb 2012
In summary, while I note your concern regarding emissions from the said chimney, if Mr ******* continues to operate the wood burner using the fuel that I have inspected and advised him to burn (one of which DEFRA told me under no circumstances must he burn these) then I cannot substantiate any contravention of any Environmental Health legislation.
I trust this confirms the current position and thus be advised that I have now concluded my investigation into your complaint.
Letter July 2012
Since my previous correspondence to you regarding this matter on ** January 2012, I can confirm that the following actions have been completed.
1: Advice regarding what fuel can be used on the multi-fuel burner has been clarified with DEFRA and passed on to the owners at ***** 2: In addition it has been confirmed that the model and type of burner in use is permitted for use in smoke control areas and has been installed according to HETAS guidelines. 3: Additional monitoring visits have been carried out in response to your requests.
Despite numerous site visits (The EH officer visited my property twice and on both occasions the fire wasn’t even lit!) no evidence has been found to substantiate contraventions or breaches of relevant legislation. ** District Council`s Environmental Health Department cannot therefore take further action on this matter and have had no choice but to close the investigation into your complaint.
Perhaps I didn’t send them enough photos of blood in my nasal mucus and letters from my respiratory consultant confirming the downturn in breathing capabilities!! I wonder what the outcome would be if one day someone had to tell the EHD "yep, he`s definitely stopped breathing”.
Ah, I can see why the EHO has closed the case. He didn't consider the nuisance aspect of your complaint and only considered the legality of the emissions.
It looks very much as if the EHO was either directed, or chose, to look at this from a narrow perspective, just the legality of the stove and fuel.
As we keep saying, whether the emissions/stove/type of wood etc are compliant with the law/regulations is irrelevant, as this is not the basis of your grievance. The issue is one of causing nuisance, not compliance with any rules/regs.
Absolutely JSH. I am going to contact the solicitors and tell them not to bother looking further in to my case and I will proceed with Section 82.
The penny has finally dropped! As far as I am concerned, the smoke coming from my neighbours “property” has been "prejudicial to my health" and has been "spoiling the enjoyment of my property" since last October. This is despite any changes that have been made to bring their installations and usage inline with legislation.
I am gathering all my photos and videos of the smoke for evidence and will be contacting my doctor in the morning to request a letter of confirmation to the visits I have made with breathing difficulties, nosebleeds, headaches and burning sensations to the rear of my throat!
If it was me, I would write to the EHO with some photos and expressing my dissatisfaction, and copying it to DEFRA and implying that you will be taking further action
What do others think about this type of open approach
Mike's taken all the action he can reasonably be expected to take with regard to those authorities who insist it is still a question of compliance, which is all DEFRA will be concerned about.
It's a clear case of statutatory nuisance, period.
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