The government is running TV ads at the moment pointing out that many of the chemicals produced by cigarettes is invisible. Does the same apply to wood smoke? In which case the quality of the wood burnt isn't really relevant compared to the problem with the operation of the chimney. All the smoke does is make it easier to see where the nasty stuff is going.

Thanks for your reply Mikeee5.

Sadly, my situation hasn't improved. My EHO is worse than useless and the neighbours are unwilling to help. I might have to follow your lead.

Good luck with your case.
Garee

Garee
May be worth you turning up at court to view Mikes case.

It leaves me with a crease in my stomach, it would be very interesting to take the LA to court! Can't see how they would have a leg to stand on.

Have you investigated the potential relationship between your neighbour and EHO? Same funny handshake?

Like they might have get off their backsides and do something.

Landmark case for sure now.

<blockquote><cite>Posted By: tony</cite>Like they might have get off their backsides and do something.

Landmark case for sure now.</blockquote>

I certainly wouldn’t like to run the distance again tony!!


Thank you for the input Bella, I think we must have been typing our posts at the same time!

I`m trying to establish what my Local Authorities remit is under the Clean Air Act 1993. I have been in contact with the DEFRA helpline again as I am still not clear of my Local Authorities duty of care to me regarding “fumes” under the provisions of the CAA. As previously mentioned, DEFRA confirmed that “smoke emitted from domestic premises in a smoke control area is specifically excluded from the statutory nuisance provisions of the Environmental Protection Act 1990 to avoid duplication with the smoke control provisions of the CAA”. DEFRA have replied and have said I can find the text by following this link http://www.legislation.gov.uk/ukpga/1993/11/contents .

I have followed the link to the Clean Air Act but unfortunately I am still struggling to find a section where it states nuisance from “fumes” from domestic furnaces. I would be grateful if anyone else would have a look to see if there is a provision for fumes under the CAA 1993, perhaps I`ve overlooked it or understanding it wrongly! The DEFRA agent concluded by saying” If you remain dissatisfied with the options available to you, you may wish to ask your Parliamentary candidates or, after the general election, your MP to press for change on your behalf”.

The way I am reading it is that my Local Authority may not be obliged to investigate for fumes as I live in a “Smoke Control Area”. It could be that their remit under the CAA 1993 is the amount of smoke that is emitting from the chimney. My LA concluded their last letter stating that the performance of the chimney was the responsibility of HETAS and to contact them if I have anymore concerns with the installation.

Mikeee5

What are you paying your solicitor for?

Posted By: CWattersIf I'm reading this correctly the fact that you are in a smokeless control area only precludes you taking action for nuisance on the smoke issue under the EPA. It appears you can still take action for "fumes or gases" under the EPA.

My understanding is slightly different: this is the definition of statutory nuisance and is therefore a matter of what the EHO is required to take action on.

What is nuisance which you (i.e., anybody affected) can take action on is a matter of common or case law and quite separate. Possible search fodder: “private nuisance”.

next question - what is his defra appliance - make and model? It should be on this list here
http://www.legislation.gov.uk/uksi/2014/2404/schedule/made
and you can look up any appliance and see the stipulations. If he is not burning the approved fuel then it's not approved, therefore not exempt by virtue of section 21 of the clean air act, therefore if it produces ANY smoke at all is an offence under section 20 of the same act. Who polices / enforces that, I'm not really sure...

This is where I don't have any idea. In theory, breaches of the above legislation should be prosecuted by an authority (explicitly the local authority for the EPA, not sure about the clean air act). In theory mikeee has a case against those bodies for not carrying out their task.

The thought that he might be suing the wrong person crossed my mind last night, although it it undeniable who is actually causing the "nuisance", and if it can be proven that he is in breach of either of those 2 acts (fumes prejudicial to health, which may be subjective to a degree, EPA) or burning non-approved fuel (if you have evidence of painted / building waste, clean air act), or that the chimney is not considered capable of adequately discharging the products of combustion (building regs part J2) then the neighbour is breaking the law, which in my non-legal opinion would help his case - but only be reinforcing the point that the activities are causing a nuisance by being prejudicial to mikeee's health.

The fact that there may be other routes against the authorities for their failure to follow up the complaints is a secondary matter

In my opinion, the case is simple, his appliance is emitting fumes that prejudices my health, however I have a nasty feeling that it is going to get derailed from a simple case into one of a whole bunch of un-related arguments, and the simpler it is kept, the better.

The owner hay have a case against the HETAS engineer who signed off the installation as compliant with building regs, but again that is a separate matter...

Fine particulates + sulphur dioxide etc. must surely count as "fumes". And the Oxford dictionary defines "fumes" as "exuded gas or smoke or vapour" - so no need to stand on the head of a pin when it comes to the language .

It`s my Neighbour at the moment Steamy and it`s for Private Nuisance. I`m coming back for the LA


I think Snyggapa & CWatters are on the right track, lets throw some more cryptic clues in the pot.

These were the main question that I put to the DEFRA helpline regarding the EPA and smoke control areas:

Q1: Is my neighbour allowed to cause a statutory nuisance with regard to smoke emissions as I live in a smoke control area?

Reply:
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.

Q2: Is it acceptable to have fumes in and around my property on regular occasions as I live in a smoke control area?

Reply:
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.

The way I am reading this is that “smoke” emitted from domestic premises in a smoke control area is excluded from the statutory nuisance provisions of the EPA 1990 to avoid duplication with the smoke control provisions of the CAA 1993. In the reply to my second question regarding “fumes” in a smoke control area, the DEFRA representative has said section 79(1)(c) of the EPA says that “fumes or gases” emitted from a premises so as to be prejudicial to health or a nuisance” can be deemed to be a statutory nuisance for the purpose of the Act. So I would read this as 79(1)(c) does apply in a smoke control area.

And CWatters findings from the EPA ( 4 Subsection (1)(c) above does not apply in relation to premises other than private dwellings) confirms this is regarding private dwellings.

I`ts because the EHO is coming to court to stand as a witness against me.The letter that my neighbours have produced from the EHO say that "a nuisance does not exist". As we know via the information from the Freedom of information request, the EHO has never been on my property when the fire has been lit. He has visited my neighbours property when the fire has been lit and made a judgement under the Clean Air Act of the amount of smoke being emitted from the chimney, however he has never been on my property when the fire is lit to make an assessment of the "fumes and gases" as per section 79(1)(C) of the EPA.

Phew, just stepped outside the back door and the fumes are horrendous! Not much smoke coming out the chimney though.

Regarding the Fuel Snyggapa, I have it in writing via the freedom of information act that the EHO has not taken into acount the moisture content of the wood to satisfy the DEFRA exemption. My wife included the fact that my neighbour had a delivery of freshly cut logs (with leaves on) in one of her emails to the Environmental Health Department. She said that they were not properly seasoned and would cause smoke. The officer dealing with my case has acknowledged this and has said that my neighbour is allowed to produce smoke during start up and refuelling. I included this to the ombudsmen and the representative dealing with my case said "the council said they were dry". I mentioned the 15 minute start up is a commercial rule and the ombudsmen totally ignored this point.