If so then this case is even more of a landmark case.

I spoke to an EH officer at Camden a couple of years ago. They have been on the ball for quite a while but the EH officer couldn't provide much information as I didn't live in their district.

I'm reading the stat nuisance same as you CW. I think my LA are singing from a different song sheet and there Is private nuisance too.

I've emailed DEFRA and the smoke control team at Recardo AEA today to see if they can confirm if it's acceptable to create a statutory nuisance in a smoke control area, be intetesting to see what they come back with!

Mikeee5

A friend suggested this.http://en.m.wikipedia.org/wiki/Nuisance_in_English_law

Ping. The penny has dropped! You may well get away with causing a nuisance in a smoke control area according to the Enivonment Protection Act 1990 but, in my case the experts are saying there is more smoke being produced than would be expected for a DEFRA exempted stove and the chimney is not working properly I.e not sufficiently carrying away the products of combustion. It's like having an MOT on a car, it's all well and good the day it passes but the police (the law) are not going to let you drive around with faulty brakes and excessive smoke puffing out the exhaust pipe a few months down the line!

It's all getting very cryptic 😊

Mikeee5

Posted By: Mikeee5Ping. The penny has dropped! You may well get away with causing a nuisance in a smoke control area according to the Enivonment Protection Act 1990…

I don't think so. The penny which needs to drop is the distinction between nuisance (ancient civil/criminal law as per Dessie's Wikipedia link) and statutory nuisance which is (as far as I can see) a specific thing defined by the EPA which the local council is obliged to deal with.

Something (eg., smoke from a DEFRA exempt stove in a smoke controlled area) can be a nuisance (as per civil law) without being a statutory nuisance (per the EPA).

The amount of smoke produced is irrelevant. The EPA says that if it's a properly exempt stove under the clean air act in a smoke controlled area then it's not a statutory nuisance. Revoke the smoke controlled area without making any changes to the installation or operation of the stove, how much smoke it produces or where the smoke goes and it might become a statutory nuisance. Weird, but that's what the EPA says.

Actually, I don't think it's all that weird. I guess that, effectively, the deal was that when a smoke-controlled area is created the council takes on enforcing the Clean Air Act (or its predecessors) in exchange for no-longer having to deal with any residual statutory nuisance caused by smoke.

Following on from CWatter's post regarding the legislation:-

http://www.legislation.gov.uk/ukpga/1990/43/section/79

79(1)[F2Subject to subsections (1A) to (6A) below], the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say—

79 (1) (c)fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;

It looks like fumes can be considered a nuisance, even though smoke can't (in a Smoke Control Area).

No - The bl***y chimney doesn't work, in that it fails to carry away the products of combustion as required by the regs. And no one seems capable of enforcing the building regs. It would appear that the chimney suffers down drafts due to the surrounding areas and no one in authority is prepared to say that a chimney built to the minimum standards and fails to work according to the regs must be either modified (typically made taller) or its use must be discontinued! The chimney needs an enforcement notice - stop using it until it works according to the regs i.e.carries away the products of combustion.

This problem (IMO) has nothing to do with the stove but rather a bad chimney. The regs actually provide for this situation.

Here is the reply from DEFRA



22 October 2014


Dear Mr Redacted

SMOKE EMITTED FROM NEIGHBOUR’S CHIMNEY

Thank you for your emails of 4 October and 10 October about smoke being emitted from your neighbour’s chimney.

I am sorry to read that you continue to suffer distress and health problems that you believe are linked to this smoke. As you will appreciate, Defra cannot comment on individual cases. However, I will deal with the general issues raised by each of your questions in turn.

1. Is your neighbour allowed to cause a statutory nuisance with regard to smoke emissions as you are in a smoke control area?

The Clean Air Act 1993 (CAA) grants local authorities powers to control emissions of dark smoke, dust and fumes from industrial premises and furnaces, and to declare smoke control areas in which emissions of smoke from chimneys are banned unless the occupier is using an authorised fuel or exempted fireplace. Smoke emitted from domestic premises in a smoke control area is specifically excluded from the statutory nuisance provisions of the Environmental Protection Act 1990 (EPA) to avoid duplication with the smoke control provisions of the CAA.

2. What constitutes a statutory nuisance under the EPA?

Under the EPA, local authorities have a duty to take reasonably practicable steps to investigate complaints of statutory nuisance. The different categories of statutory nuisance are listed in section 79(1) and these include smoke, fumes or gases emitted from premises so as to be prejudicial to health or a nuisance. The decision as to whether or not the smoke, fumes or gases is a statutory nuisance is made by the local authority’s environmental health practitioner on a case by case basis. They take into account a number of factors when investigating and assessing smoke, fumes or gases complaints, including the reasonableness of the activity being carried out, the time of day of the occurrence, its duration and its frequency of occurrence.

If satisfied that a statutory nuisance exists or is about to occur or recur, the local authority must serve an abatement notice requiring that the nuisance is abated or restricted. There is a fine on conviction for non-compliance of up to £5,000 (together with a further fine of up to one tenth of that level for each day that the non-compliance continues).

As stated above, smoke emitted from domestic premises in a smoke control area is specifically excluded from the statutory nuisance provisions of the EPA to avoid duplication with the smoke control provisions of the CAA.

3. Is it acceptable to have fumes in and around your property on regular occasions as you are in a smoke control area?

Section 79(i)(c) of the EPA says that “fumes or gases emitted from premises so as to be prejudicial to health or a nuisance” can be deemed to be statutory nuisance for the purpose of the Act. Whether or not particular emissions can be classified as fumes or gases and as a statutory nuisance is both a legal and a technical question that only your local authority can judge.

4. Should your local authority incorporate technical guidance published by HETAS into its procedures?

It is for the local authority as the regulator to decide whether and how to make use of particular technical guidance.

5. Who is responsible for dealing with the issues relating to your neighbour’s chimney?

Local authorities are responsible for enforcing building regulations. It is for the local authority as the regulator to decide whether your neighbour’s chimney complies with the relevant requirements. However, building regulations only apply when the building is first built or where building work is carried out.

I hope you find this information helpful.

Yours sincerely,


Redacted

It's a pity you didn't ask this question...

Under the EPA a private individual can take legal action for statutory nuisance if the council fails to act. Is it also possible for a private individual to take similar action under the CAA?

That's what DEFA said in their email to you..

"Smoke emitted from domestic premises in a smoke control area is specifically excluded from the statutory nuisance provisions of the Environmental Protection Act 1990 (EPA) to avoid duplication with the smoke control provisions of the CAA."

The big question is does the CAA offer equivalent protection to the EPA? That's why I'd be interested to know if a private individual can take action under the CAA?

Posted By: Mikeee5I've been looking at the clean air act 1993 and can't see where it gives reference to statutory nuisance from smoke or fumes. I'm a bit confused as the statutory nuisance provisions are excluded from the EPA 1990 as I live in a smoke control area. Does this mean there are no provisions for statutory nuisance in a smoke control area?

Yes, that means there's no provision for statutory nuisance by some smoke in a smoke control area.

That doesn't mean it isn't a nuisance. Please stop obsessing on the word “statutory” which has a very narrow meaning in this context: a “statutory nuisance” is a nuisance which the local council is supposed to deal with under the EPA. If they're not obliged to deal with it under the EPA it's not a “statutory nuisance” even if it's a nuisance which they're obliged to deal with under some other legislation or a nuisance which somebody else can or should deal with under the EPA or any other act.

Posted By: SteamyTeashe always gets the same answer from me

No, the Green Building Forum isn't a dating site!

what sourt of a society would we be living in if we all did that, ................. no society at all

I am not dating anyone smoky, gone all electronic now.

Thank you for your wellwishes LJ2, I like the Rant Garee, well said, exact situation as Myself, longJonn 2 and Dessie.

Has anyone got any information on wood smoke? I'm sure I've read somewhere that wood smoke is inherantly heavy and there is no known safe limits of exposure.

Cheers

Mikeee5