Still exciting!

the agreement seems to be premature. You really should be disucssing that only once the nuisance has stopped and has been jointly assessd by the experts.

dont forget planning may still block the proposed flue extension. The planning dept will consult environmental health in assessing the application. EH may respond to state that they assessed a complaint at the address and found no evidence of smoke nuisance (is that the case? It's been a long thread). Therefore planning conclude that the visual impact of raising the flue isn't justified and refuse to grant consent. The planning could play out for ages - epsecially if refused and then taken to appeal. And afterall that time could still be refused on appeal. You might need the option of court to get use of the stove stopped while that plays and to determine what should happen in the event planning is refused? Can the court find there is nuisance and overturn the planning decision or do they have to order the use of the stove stop and the chimney be capped off?

Sure I can translate this for you; it says: "Fire your solicitor. Get someone who actually gives a damn about you and get this piece of junk re-drafted!!!!!!!!"

Posted By: Mikeee5it will could close all future proceedings

*far too dangerous* to comment on, IMHO
==========
"as at the date this order is signed"

is that English ?
for "as of the date of this order" ?
(which is not much better anyhow...)

get them to make it explicit:
"between the Parties extant at the date of this order..."

In any event, (I have zero legal experience), how can the Order (which is (presumably...) a result of "these proceedings" have any weight or effect on anything lying outside the realm of the "proceedings" ?

It's the equivalent of saying that signing the Geneva Convention will prevent any government from making all and any claim against any other government ?

that would be plainly ridiculous...

gg

There's a bigger issue here Mikeee5, at least from my personal viewpoint. I am offended that you have not taken on board my comments (as repeated and or agreed with by others) . I have gone through carefully why the type of wood being burned only affects by how much your live is fore-shortened - ie it is irrelevant (though a nice to have it is irrelevant next to it's impact on the case). Yet you mention it yet again. I have explained how the chances are that increasing the flue height by any reasonable amount will not solve your problem, yet you have failed to make either your lawyer or your expert witness understand that and, worse, when you commented on the "solution" a few posts ago your post could only be described as stunningly naive. I return again to the oft mentioned point about selling your house - if you don't have the resources (financial, intellectual, time, energy) to deal with this properly, then you will have to decided whether to live a normal life in another house or to have a foreshortened life your current house. For now you should get the lawyer and expert witness in a room and have it out with them. Of course there is a possibility that the increased height flue will be enough, or that breathing high quality flue gases will not shorten your life. Very little is certain.

Posted By: Mikeee5I will check the joint report re who specified the height of the Chimney shortly.

Can anyone decipher this section for the agreement please. It looks to me like it will could close all future proceedings if we roll with these terms !! The order has been drafted by my neighbours solicitor by the way.

1. The Parties agree that the terms set out herein are hereby agreed in full and final settlement of all and any claims between the parties as at the date this Order is signed whether or not brought within these proceedings

Posted By: Mikeee5 The order has been drafted by my neighbours solicitor by the way.

And the neighbours solicitor is working to get the best benefit for your neighbour, without regard to you or your health!!

Posted By: Mikeee51. The Parties agree that the terms set out herein are hereby agreed in full and final settlement of all and any claims between the parties as at the date this Order is signed whether or not brought within these proceedings

This paragraph means that IF you sign this it means that the case ends at signing and you can not complain about anything up to the date of signing whether it was a part of this case or not.
So if you signed this before the extension to the chimney was up then the chimney need not be extended because you will have agreed that all claims and complaints have been resolved.

I would not sign any agreement because in your position an agreement can only limit your options. Why would you agree that the problems have been solved and you will take no further action without waiting for at least 1 full heating season to see if the problem returns?

You should stick to your position that you want the smoke nuisance to stop and if anyone asks you to agree that the nuisance has stopped (either verbally or in writing) just say that you don't know yet, insufficient time has elapsed to be sure.

Mikeee, I've been following the the thread on and off for its duration, I really think you should very carefully consider your position here. It reads like you are about to put yourself in check mate if you sign this. You should go through your options in depth with your solicitor. I can see the other party having very little leverage here where you have the option of going to court, you shouldnt feel under pressure to accept. I cannot see how this Tomlin proposal is reasonable and therefore cant see how you declining it could undermine your chances in court.

I keep saying it, but planning is likely to be a real pain here. If it gets refused and goes to appeal it could be 18 months or more before they can even start on the flue. Can you wait that long? No doubt they will keep burning in the meantime. You should consider the court option, tough as that may seem.

Only let them use the stove when they are downwind of you, that is easy to do.

I sure Steamy was just being inappropriately sarcastic.

There is something not right here - any fool can see that. I am wondering if we have not seen something key. Clearly if the experts have said smoke is entering the house and it is a health hazard and recommended an action that may not solve the problem then only an imbecile of a lawyer would accept indeed recommend signing something that may leave the staus quo and Mikee with a 6 year gagging order. Perhaps, therefore, rather than saying "Smoke was clearly entering the house in such large quantities and so frequently as to cause an immediate and undeniable health hazard", the experts said "A small amount of smoke was seen on one occasion entering the house and this is not ideal". We have not seen the precise wording and it is critical as the later statement might add up to "This is the best we are going to gets folks".

Similarly, but much less likely, we have not seen the precise wording of the experts recommendation for a flue height increase, as if it said "Raising the flue by 1m will solve the problem" again that's the best we are going to get folks.

I have seen lawyers 'process' their work before - a bit like an estate agent forwarding a bid to the vendor without adding any value and this could have happened here.

If on the balance of probabilities anyone reading the experts' statement would conclude that the problem must be addressed then (assuming the experts have not put the topographical data and wind data into a Cray and found that 1m will solve the problem) there is no way Mike would lose in court against a proposed solution that might not solve the problem....and their lawyer would certainly try for this gagging agreement.

If it were me I would instruct my lawyer to make a counter offer. You agree not to take them to court for 1 year provided the flue is installed by 30 Sep this year - making it clear in writing that you consider that it is only reasonable that you give the attempted solution a reasonable trial but that you are dubious that it will solve the problem.

Posted By: Peter_in_HungaryMikeee5 perhaps you could ask your solicitor why you need this agreement and what is the benefit to you!

Good Thinking, PiH

gg

So he has just - 'processed' it.

<blockquote><cite>Posted By: Gotanewlife</cite>So he has just - 'processed' it.</blockquote>

Do you mean my solicitor has just processed the Tomlin Order?

Thanks for explaining that Peter. I will have a chat with my solicitor tomorrow to see if this can be altered in our favour.

Thanks for everyones continued support.

Mikeee5

I've just had a thought for an addition for the conditions in the Tomlin Order. The experts have documented the start up and refuelling smoke in their joint report. They have specified the time the stove produced smoke and compared the smoke to a ringlemen chart. What about an addition of this section of the report as a bench mark for the level of smoke?

perhaps you could ask your solicitor why you need this agreement and what is the benefit to you!

AIUI, the need and benefit is that courts take a dim view of parties who cannot reach an agreement like this if one is possible. But it doesn't sound like that point has been reached yet. The other party appears to have made a [somewhat one-sided] proposal and I think it is up to Mikeee's side to make a [more reasonable] counter proposal.