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Heating and cooling: Smoke Nuisance – is wood wood?

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    • CommentAuthorEd Davies
    • CommentTimeMar 2nd 2016
     
    Perhaps a more-reasonable counter proposal would be something along the lines of:

    1) They cease burning stuff until the proposed change has been made.

    2) They make the proposed changes before some date, say, the end of the calendar year.

    3) Mikeee puts the case in abeyance until that's been determined to work or not.

    4) Mikeee won't take further action for past damage, but

    5) Mikee reserves the right to restart this case or start a new one if there is further smoke intrusion.
  2.  
    I am not sure that is reasonable enough Ed although point 4 is excellent - specifically the not using the stove until action taken, bearing in mind that they may still have to go through planning and you are expecting them, to either go cold or pay out a lot more money in the meantime - as for the work completed date wouldn't it be better of it was a little earlier so Mikee could see the whole heating season with the adaption. Without sight of the precise wording of the key sentence (para at most) of the experts' joint report you have no idea how strong Mikee bargaining position is.
  3.  
    You said: I will have a chat with my solicitor tomorrow to see if this can be altered in our favour.

    You need to take a more steadfast and confident position with your solicitor - he/she is not a demi-God and has already failed you. He/she works for you. You tell him/her what you want and expect it to be delivered. You are not happy (that you were not given advice not to sign the agreement which would probably fail you and gag you at the same time) and you should say so. There is a lot to digest in the last 20 posts and you need to go through each one slowly. make notes, gather your position into a coherent set of points and refer to these notes during your 'chat'.

    And if those notes include any mention of the wood being burned then there is no hope for you.
    • CommentAuthorMikeee5
    • CommentTimeMar 3rd 2016 edited
     
    The wood is an important part Gotanewlife. It was mentioned in the particulars of claim as it has been included in my experts report as one of the causes for excessive smoke. When this first started my neighbour was having deliveries of freshly cut logs delivered, cutting them up and throwing them on the fire along with any old crap he could get his hands on. At least if this is included in the Tomlin Order there will be some sort of leverage on him to stick to the proper stuff. Don't forget these guys have got a potential £60k bill staring at them if they breach this order and we continue with the court action. I have just emailed my solicitor to let him know that I'm still not happy with the conditions of the order and have said I need another couple of days to think about it. I have pointed out that my neighbours solicitor has asked if there are any amendments that we would like to make.
    •  
      CommentAuthorSteamyTea
    • CommentTimeMar 3rd 2016
     
    Mikee
    Everyone on here has told you not to sign this.

    They are really offering you nothing other than a chance that it may work. So far everything you have done is worth nothing. You may have well as offered to stick a bit more tube on their chimney years ago 'just to see if it works'.
    You may still offer to do that, going to be quicker and cheaper to see if it works.

    What seems to have happened to me is that you have got bogged down in all the legal talk and processes and really lost sight of the problem, which is your neighbour causing a nuisance.
    You have to get that stopped for good, not delayed, conditionally delayed or anything else.
    • CommentAuthorjules
    • CommentTimeMar 3rd 2016
     
    Mikee
    I haven't commented before on this thread, but I thought I'd jump in just to emphasise what everyone else has said. You need to make clear to your solicitor that the objective of this whole action has not been to put a 1.5m pipe on top of their chimney, but to stop the smoke nuisance, and you will only sign something which guarantees that will happen, however it is done.

    Ask your solicitor - "what happens if they make the alterations required and they don't stop the smoke?" He'll probably say that if you sign the proposed agreement there will be nothing more that can be done within this action.

    So then you say that you want wording in the order that if the proposed remedy doesn't work, no use of the stove is permitted until a remedy is in place which does work. That may get more complicated because then you'll have to agree with the other side who decides whether or not the remedy is working (eg who decides whether smoke levels are "acceptable" and how do they measure that etc etc).

    You may also have to go back to the experts to get a better understanding of how confident they are that this proposal will actually work. They may say that it should really be 2m if you want to be absolutely sure.

    Finally, I agree that the order must say no use of the stove until the solution is in place.

    Good luck...
    • CommentAuthorMikeee5
    • CommentTimeMar 3rd 2016 edited
     
    Thanks for jumping in Jules and thanks for the kick in the pants Steamy. One thing regarding the timescale of planning, the order states that my neighbour has 8 weeks to carry out the work and if it's not done by then he will have no choice but to stop using the stove as he will be in breach of the order. I agree the terms need altering so the alterations are not a final solution .
    • CommentAuthorHollyBush
    • CommentTimeMar 3rd 2016
     
    Just a thought - considering asking for them to pay for monitoring equipment for a set period and agree the position and levels that are acceptable - if breached then there is objective evidence.
    • CommentAuthorMikeee5
    • CommentTimeMar 3rd 2016
     
    Good point Holly, I will give that some thought.

    What about a clause that says " the products of combustion must be sufficiently dispersed as not to cause a nuisance".

    This would be part of the agreement, and if the remedial work is unsuccessful we have the right to restart the court action.
  10.  
    Mikeee5 You don't have to put amendments forward to their proposed agreement. You can reject the whole lot and submit your own counter agreement, which might be a better option as it puts you in control and them in the position of trying to justify why they should do less. - The bones of your agreement are in the posts above, although I would weight it more to your advantage.

    1) They cease burning stuff until the proposed change has been made. (easily done as they have gas CH (I think))

    2) They make the proposed changes before some date, say 30 days after the agreement is signed (why wait longer, they can ask for longer if they need it)

    3) Mikeee puts the case in abeyance until that's been determined to work or not.

    4) Mikeee reserves the right to take further action for past damage, (why close this off and depending upon how you feel about damages you could use this as a bargaining point)

    5) Mikee reserves the right to restart this case or start a new one if there is further smoke intrusion.

    6) Mikee requires one complete heating season without nuisance before any agreement will be signed that the nuisance problem has been solved. (Should give you an easier restart if problems occur next winter)

    I don't think planning permission should be an issue. In your neighbours position I would put up the 1,5m pipe and apply for retrospective PP citing that it was necessary due to a health hazard. (Experts opinions as supporting documentation). In all probability by the time the PP came up for decision there would be an indication as to whether the proposed solution has a chance of working or not.

    Whilst as was said above courts take a dim view if agreements are not reasonably made, the courts won't expect you to make an agreement if it fails or potentially fails to resolve the issues at hand.

    Don't loose sight of the fact that you want the nuisance stopped, what type of wood is burned should not be part of any agreement, any additional background items beyond the main issue of ceasing the nuisance will only serve to confuse and cause unnecessary debate if the nuisance continues but other background items are adhered to. If an agreement contains any quantitative measurements this will generate measurement issues such as who pays and who does what. If you want quantitative measurement then I would suggest the European Standard for air quality as a good starting point. Why should you accept less?
    • CommentAuthordb8000
    • CommentTimeMar 3rd 2016
     
    A couple of thoughts (from a litigation solicitor):

    this type of nuisance is not a "once and for all" so future events can be new causes of action. The Tomlin Order - which will settle the claim entirely save for bringing into effect the terms of the order - should ideally therefore:-

    - not limit Mikeee's ability to bring a future claim
    - be limited to the settlement of the dispute in the claim and no further.

    Wording as simple as "Mr x agrees not to cause a future nuisance to Mikeee" puts the point beyond doubt.

    Secondly, it is all well and good everyone shouting "don't sign", "take it to court" but litigation is for many people one of the most stressful things they ever do. It takes over your life, appearing in court and being cross-examined is terrifying and you can lose your house in costs if you don't win.

    Thirdly, I seem to remember that Mikeee said his solicitor is being paid by his legal expenses insurer (presumably as part of household cover). He may not have practically a choice of solicitor. His insurance cover will also only go so far - it will not cover him for pursuing a point of principle all the way to court. It is an added complication. The upside though is that he's probably covered for the other side's costs so isn't worried about losing £10ks. The downside is that the insurer is not going to pay for a Rolls-Royce job by the solicitor and there may be an element of "processing" at times.

    Lastly, the courts take a very dim view of pursuing things on principle - you get hammered on costs even if you win - if you refuse a reasonable offer. Winners can even end up paying the losers costs.

    I think that the most important thing here is for Mikeee to retain the ability to start a new claim if the nuisance recurs.
    • CommentAuthorMikeee5
    • CommentTimeMar 3rd 2016 edited
     
    I have just had a telephone conversation with my solicitor and he is saying that the Smelly Tubbies now need planning permission from our local authority as the Chimney will be more than 1 metre in height. I have instructed my solicitor to request that my neighbours stop using the stove until planning permission is sought and the remedial work is carried out. My solicitor is doubtful that they will agree to that. I have requested again that something be added to the order to take into account we would be in a position to start a new claim if the nuisance reoccurs. My solicitor is still saying this is the best we could have hoped for if it had gone to court and there is no need to include further amendments to the Tomlin order. Two experts have made recommendations that should improve the situation and the court is unlikely to take any further action than to agree with the experts recommendations if we pursued this through the courts. My solicitor said that the court will take a view what is realistic and because we are semidetached it would be expected to get some smoke in the neighbouring property.
    •  
      CommentAuthorSteamyTea
    • CommentTimeMar 3rd 2016
     
    Have you asked to see 'the experts' PI insurance, just so you can take them to court when it does not work. If they are not covered, I suspect that they are just chancers. With my qualifications I could claim to be a 'expert' in renewable energy, environmental science, ecology, education, marketing, photography, statistics, automotive engineering (this was put to the test in a coroners court and I got away with it); but I would struggle against a genuine expert in all those fields.
    • CommentAuthorgyrogear
    • CommentTimeMar 3rd 2016 edited
     
    Posted By: Mikeee5My solicitor is doubtful that they will agree to that. I have requested again that something be added to the order to take into account we would be in a position to start a new claim if the nuisance reoccurs. My solicitor is still saying this is the best we could have hoped for if it had gone to court and there is no need to include further amendments to the Tomlin order.


    To me, it sounds like your solicitor is working for your neighbour !

    "I have requested again that something be added to the order..."

    As stated above by Peter-in-Hungary, "adding sthg to the order" don't enter into it - you need to be producing a COUNTER-proposal

    gg
  15.  
    Posted By: Mikeee5I have instructed my solicitor to request that my neighbours stop using the stove until planning permission is sought and the remedial work is carried out. My solicitor is doubtful that they will agree to that.

    Given that 'the experts' have now agreed there is a problem (nuisance) I would have thought that it would be 'unreasonable' for your neighbour to continue with the nuisance until the proposal (by the experts) is put in place.

    Because your neighbour has alternative heating I would have thought that a court would grant you an injunction preventing them from using the stove until the proposed change to the chimney was in place, especially as the need for planning permission might extend the time before any change is made.

    Put together a counter proposal and instruct your solicitor to request that your neighbours stop using the stove until planning permission is sought and the remedial work is carried out. At the same time tell your solicitor to inform your neighbour that if they do not agree to stop using the stove you will seek an injunction through the court to prevent them using the stove until the proposed solution is in place and can be tested. (After all courts issue injunctions against late night parties and smoke inhalation is a lot more dangerous than noise)
  16.  
    Posted By: Mikeee5My solicitor said that the court will take a view what is realistic and because we are semidetached it would be expected to get some smoke in the neighbouring property.

    Why - Its like saying that because you are semi-detached you should expect noise disturbance on a regular basis by loud parties going on until 3 or 4 in the morning.
    IMO being in a semi does not mean you have to put up with your neighbours pollution!!
  17.  
    As an after thought you could- to show you mean business - instruct your solicitor to write to the building control office, using the experts report(s) as ammunition, complaining that the neighbours chimney fails to meet building regs in that it fails to carry away the products of combustion
    (quote - 2.8 Flues should be high enough to ensure sufficient draught to clear the products of combustion. The height necessary for this will depend upon the type of the appliance, the height of the building, the type of flue, and the number of bends in it, and an assessment of local wind patterns.)
    And your solicitor should ask the Building Control to issue a notice preventing the chimney being used until remedial action has been taken and that the chimney complies with the building regs.

    P.S. When your solicitor talks about what the court will expect you to put up with, because you live in a semi, remind him that the chimney fails to comply with building regs. and I doubt that any court would expect you to put up with such a circumstance!
    • CommentAuthortony
    • CommentTimeMar 3rd 2016
     
    Nice post!
    • CommentAuthorGotanewlife
    • CommentTimeMar 3rd 2016 edited
     
    We are still all assuming the this magic experts' report says something clear and definitive - we all know what it should say obviously. IIRC, and I may not, we have not seen any actual words from the report - I worry that the solicitor (indeed both of them) has/have got it right, implying the report the report is full of holes, because that is the only reason, aside from collusion, that the advice would be reiterated that this is as good as it gets.

    A lot of our advice is pretty meaningless if there is no decent stick behind it. Afterall, does the experts' report jointly (and jointly is important) say
    Posted By: Peter_in_Hungarythat the neighbours chimney fails to meet building regs in that it fails to carry away the products of combustion
    ??
    • CommentAuthorborpin
    • CommentTimeMar 4th 2016
     
    Couple of thoughts;

    By drafting this agreement, I would have thought that there is now an acceptance there is a nuisance so I would be going back to the council and Building Control asking them to deal with the nuisance (whilst other things are going on).

    There must be a clear cease and desist in the order until it is demonstrated the nuisance has stopped (i.e. use of the stove does not produce fumes within your property).

    I would not have any specific remedies in the order but simply a standard to be met once modifications have been carried out. This standard could be demonstrated by monitoring. Not having specific remedies avoids the problem of the proposed solution not curing the nuisance.

    Of course there is nothing to stop you objecting to the planning proposal and if that is denied they will not be able to use the stove at all as it would cause a nuisance (if you get the order right).

    YMMV
    • CommentAuthorGotanewlife
    • CommentTimeMar 4th 2016 edited
     
    Great ideas but never going to happen Borpin: that would be as one-sided as theirs is. I predict that:

    1/ Preventing use until fixed won't happen.
    2/ Agreed monitoring (hence stds to be achieved) won't happen.
    3/ Report won't be strong enough to satisfy Building Control that there is a nuisance.
    4/ A time by which the flue must be increased won't happen.

    Negotiation has to be realistic; as our lawyer db8000 said:
    Posted By: db8000the courts take a very dim view of pursuing things on principle
    Of course one can ask, as a starting point, maybe, if you want to piss them off.
    •  
      CommentAuthorjoe90
    • CommentTimeMar 4th 2016
     
    I disagree, the report admits a nuisance is being caused ( otherwise there would be no reason for a solution) and this nuisance should be stopped ASAP. The report also states the raising of the chimney MAY resolve the problem therefore it has to be proved after the event that it has worked. As the report indicates a nuisance, then building regs have not been adhered too so building control should be informed of the experts opinion and asked to re visit the question of compliance to their regs.
    • CommentAuthorMikeee5
    • CommentTimeMar 4th 2016 edited
     
    The Head of Planning and Regulatory Services has always said that the performance of the Chimney is a private matter so I doubt they would want to get involved Jo. In saying that the joint report now says there is a nuisance where as the report that our witness provided didn't as the stove was not lit when he carried out his visit to our property.
  24.  
    Posted By: Mikeee5The Head of Planning and Regultory Services has always said that the performance of the Chimney is a private matter so I doubt they would want to get involved

    If your solicitor writes to the the Head of Planning and Regulatory Services complaining that a structure does not comply with the regs and provides evidence (the report) and quotes the relevant regulation I don't see how the authority can ignore the complaint.

    Whilst much above has been said about the court taking a dim view when someone fails to negotiate or come to a reasonable compromise or sticks to a principle the same must apply to the neighbour. If pollution is shown by the reports and he refuses to stop the pollution whilst the (proposed) solution is implemented then the court should take a very dim view of this indeed
    • CommentAuthorMikeee5
    • CommentTimeMar 4th 2016
     
    I don't think my solicitor has got the gumption to do much more Peter. I believe he is on a no win no fee arrangement with my insurers and he is wavering the chance of recouping the costs from my neighbours with going down the route of the Tomlin Order. I also think the full technicalities of building regs, Defra exemption etc are beyond him. We're doomed we're doomed !!!
    •  
      CommentAuthorSteamyTea
    • CommentTimeMar 4th 2016
     
    The solicitor is representing you, not the insurance company. Insurance companies know the odds of paying out, what they do.
    And if you think that is the case, get onto your insurance company and ask them what to do next.
  27.  
    Lets stick to the facts. Does anyone really believe sticking an extra metre on the chimney stack is going to make the slightest bit of difference. Or your neighbor is going to stop using cr_p wood. No you need to be far more positive. Yes there is now an admitted problem that needs a solution

    Suggest fitting something like this.

    http://smokiusa.com/smoke_zapper
    •  
      CommentAuthorjoe90
    • CommentTimeMar 4th 2016
     
    + 1 wot he said ( renewablejohn)
    • CommentAuthorMikeee5
    • CommentTimeMar 4th 2016 edited
     
    It's took me 4 years of campaigning to get a 1.5 m tube chucked on top of the stack, I don't think they will stretch to a super sucker 2000 :wink:
    • CommentAuthortorrent99
    • CommentTimeMar 4th 2016
     
    Posted By: Mikeee5It's took me 4 years of campaigning to get a 1.5 m tube chucked on top of the stack, I don't think they will stretch to a super sucker 2000:wink:" alt=":wink:" src="https:///newforum/extensions/Vanillacons/smilies/standard/wink.gif" >


    Super sucker 2000?!? That's old hat you want the Hyper Sucker 3000 instead! :wink::wink:

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