A PRACTICAL GUIDE TO AVOID CAUSING A SMOKE NUISANCE
If you happen to be one of many thousands of domestic home owners regularly suffering from neighbouring wood smoke and/or cooking fumes relating to;
a) Bonfire Smoke
b) Wood burning stoves
c) Restaurant extraction smoke and/or fumes
Here are some practical points to consider before making a complaint!
It is an offence to cause smoke to emit from the burning of any type of fossil fuel in particular a designated smoke free zone, prolonged emission is considered a nuisance. Complaints can be made through local Borough Council Environmental Health or by way of a private prosecution, however, just because smoke is identified it doesn’t automatically mean it originates from where you think it does, smoke has a tendency to travel therefore attempting to identify the source can be a lengthy and complex activity.
The reporting of a smoke and/or a fume nuisance to your local authority does not immediately translate into this stopping or an abatement order issued, on the contrary, these disputes are often fractious and difficult taking months to reach a conclusion.
Therefore mitigating a smoke or fume nuisance is a little more tricky than you may think.
The same applies with regard to smoke and/or fumes produced by commercial pub/restaurant cooking irrespective of the fuel used to do so.
Smoke and /or fume nuisance disputes tend to impact negatively on all parties, the complainant as well as the culprit resulting in unnecessary mental stress, emotional upset and of course cost implication. In every sense, smoke and/or fume nuisances can and do affect the health and wellbeing of all those involved not just the party on the receiving end!
By and large, Environmental Health teams interpret current legislation differently dependent upon where you live and the authority responsible for such matters, this is evident by way of lengthy case history on such subject matters. NACE are acutely aware of authorities having issued an abatement notice have done so virtually on a whim and literally overnight, whereas other authorities have refused to acknowledge indisputable evidence, take conciliatory action between the parties or seek expert advice.
Seeking support and thus resolution by engaging with your local borough council Environmental Health team on matters relating to a nuisance is unfortunately a national lottery, it shouldn’t be of course but with fewer officers and an ever growing workload it is very likely your complaint will sink to the bottom of a very large pile unless you engage an expert to help verify and substanciate your position.
a) Bonfire Smoke.
There are local restrictions on causing a smoke nuisance when burning any material on a bonfire, according to Government guidance on the subject; “You cannot get rid of household waste if it will cause pollution or harm people’s health. This includes burning it” Local authorities have the power to issue an ‘Abatement Notice’ prohibiting such use if it causes a nuisance. Evidence would of course be required to prove a case or that a nuisance actually exists, failing this a private summons would be the alternative. It is therefore essential that all avenues of communication are firstly exhausted before traveling this route.
Your local Environmental Health authority has a responsibility to investigate complaints of a smoke and/or fume nuisance that could be classified as a ‘statutory nuisance’, they are empowered to issue an ‘abatement notice’ if a neighbour’s bonfire is causing you distress, this amounts to both visual as well as sensory perception. Your neighbour can be fined if they do not follow the rules regarding bonfire burning or the terms of an abatement notice.
Many areas of inner London for instance as with most other large cities and some towns are now smokeless zones, it is worth checking with your local authority to see if you live in such an area.
Homeowners appear to assume, somewhat incorrectly, that a complaint to their local Environmental Health team will be sufficient for them to act, don’t be fooled as this is not the case. Complaints to a local Environmental Health authority must be investigated as a duty, however, never assume because you have reported a nuisance it will be resolved, Environmental Health staff are not smoke and/or fume experts and do not have the technical skills, mechanical competence or instrumentation to identify causation, a reliance on visual evidence appears to be the only skill necessary.
It would therefore be prudent (if you have a neighbour who regularly uses a bonfire with which to burn either garden waste and/or other material) to visually record the nuisance, when it occurs, day and time of event so that an audit trail log can be kept. This will only be of use in a private prosecution, it is highly unlikely that your Environmental Health authority will refer to a private individual’s evidence as they will, in accordance with statutory guidance, have to witness a nuisance first hand and on more than one occasion. The requirements of the EPA (Environmental Protection Act) make this procedure quite clear.
Government guidance on the subject matter can be found via this link:
Ultimately, it is worth trying to keep avenues of communication open with your neighbour and for both parties to reach an understanding, if this isn’t possible then a formal complaint to your local Environmental Health authority would be the next step before considering litigation.
b) Wood Burning Stove Smoke
Singularly, wood burning stoves account for nearly 89% of all smoke nuisance complaints and neighbour disputes in the UK with over 40% of these cases ending up in litigation!
Unfortunately, stoves are installed not because they are guaranteed to work properly, safely, compliantly and correctly or even within manufacturers operational parameters but simply because they are a doddle to install by less than competent individuals, although the end product may look ‘wonderful’ the reality is that these appliances represent considerable internal pollution and other risk factors. Other sources of heat are very rarely considered as an alternative.
It must be recognised that in all instances where a combustion appliance is installed the homeowner is liable to comply with the Building Regulations and not the installer, the same applies to any re-lining activity, the installer is merely ‘expected’ to meet the requirements.
The stove, chimney and installation industry are unregulated and unaccountable, this must be borne in mind before committing to any installation. Commitment to having installation work carried out must attract a formal contract that is clear, precise and fair in accordance with the requirements of the Consumer Rights Act 2015. Consumers should not agree to an informal agreement on the basis of either an estimate and/or a quotation as neither is representative of a consumer’s rights or explanation of method and/or intended process. Smoke emittance from a wood/coal burning stove or an open fire may occur for any number of reasons, therefore to avoid causing a potential nuisance or suffering litigation it would be advisable to consider the following points before agreeing to the installation of an appliance or chimney lining/relining.
a) Changing from a gas appliance to a wood burning alternative such as a stove or open fire is notifiable work. A gas supply must be cut off preferably away from the intended stove/open fire installation with this work certificated by a Gas safe Engineer.
b) Alterations to a fireplace opening are ‘Building Work’ and therefore notifiable to your local authority, this type of structural work cannot be undertaken by a builder without prior notification having been made to your local authority nor can this type of building/structural alteration work be carried out by a Hetas fitter as scheme installers are not licensed or trained to carry out this type of risk related work. If work of this nature is undertaken unlawfully it will be considered a contravention of the Building Regulations in particular Approved Document J with the homeowner held entirely liable, in the case of a related insurance claim the probability that any such claim will be considered null & void.
c) Alterations to the design of either a masonry chimney, masonry flue shaft and/or a fireplace opening can relate directly to flue gas speed thus smoke evacuation, therefore if such work is proposed the installer must provide the consumer with both theory as well as method design for achieving safety as well as fire risk compliance, that any such work will not aid and abet a smoke nuisance.
d) Installing a wood burning stove to an existing masonry flue shaft or to an existing system chimney (metal) may carry any number of known risks associated with smoke causation. Due to a lack of planned maintenance many masonry flues are in poor structural condition with many more displaying signs of bitumen ingress into surrounding masonry. (Brickwork) Bituminous material simply cannot be removed using traditional sweeping methods or by dangerous chemical cleaners that create a host of related third party health hazards when released into the atmosphere. One undeniable error of judgement is the use of round sweeping brushes, these are continually used in square or rectangular flue shaft environments, bituminous and other flammable material cannot be removed from the corners thus is left in place to smoulder or ignite given a sufficient heat source.
e) Bitumen can and will adhere itself to smooth internal flue parts of both flexible as well as metal system chimneys, however, unlike masonry, bituminous material cannot be absorbed through metal surfaces thus will sit proud of any metal surface representative of a fire risk. If bitumen is subjected to a heat source it will either smoulder and/or ignite with the outcome dense smoke or a flue fire.
f) Of the numerous cases of smoke nuisance dispute where NACE have acted as experts it was found that many of these occurred as a direct result of bituminous material igniting and/or smouldering causing smoke to appear before the wood being burned had actually caught alight. It is therefore essential that before any installation takes place the structural condition and risk factor surrounding the use of a chimney/flue shaft or metal system chimney is expertly reported upon by a recognised Controlled Services engineer.
g) Burning wood at incorrect temperatures combined with poor or non-existent ventilation combined with an incompetent installation design can and will lead to a potential smoke nuisance occurring, this is a risk not only to neighbouring property’s but to the initiator of the nuisance. PM2.5, VOCs and other carcinogens/toxins will permeate through closed windows and doors, below DPC air vents, in through trickle vents and less than air tight door seals impacting upon the health and wellbeing of those in close proximity, anyone with a respiratory condition or with Asthma for instance would be immediately impacted upon.
h) The continuous use and installation of ‘Non-Mandatory’ cowls are a third-party cause of registered smoke nuisances. The evacuation of combustion gases must not be restricted by the fitting of any product likely to reduce flue gas speed, BSEN15287 refers to “loss characteristics” caused by the suffocation of flue gases when fitted to a chimney pot. The manner in which a stove or open fire operates will very much depend upon an unrestricted passage for combustion gases to evacuate to atmosphere therefore a cowl serves as nothing more than a restriction of these flue gases to evacuate safely and will likely impact upon the operation of any appliance.
i) The poor design of flat top cowls will cause smoke to collide with the underside, smoke will, depending upon wind speed, direction and Mb pressure drift downward and ‘Duvet’ over neighbouring property’s as well as the target property. Unless a vermin infestation can be identified cowls should not as a rule be fitted to chimney terminals, the only acceptable cowl would be an open-cage type deign.
j) This does not of course apply to gas fired appliances as these do not cause bituminous ‘smoke’ to occur through the burning process of natural gas, nor likely through low operational temperatures commonly cause a smoke nuisance or smouldering/ignition to take place.
k) Installing a cowl will not negate downdraft, (a natural occurrence due to high barometric air pressure that cannot be bypassed) will not mitigate rain ingress unless you are living in an area with no wind and where rainfall only occurs vertically, it will however restrict flue gases from escaping and if emitting smoke this will sink downward causing a ‘dropping duvet’ effect thus a potential nuisance to neighbouring properties.
l) Chimney termination height is irrelevant if you live in a high pressure area, barometric measurements above 1013Mb represent high pressure therefore unlikely that smoke will evacuate to atmosphere sufficiently enough so that it does not represent a nuisance or a health risk.
Therefore it is imperative to establish before agreeing to an installation that the topography of your building will not impact negatively upon any intended installation work. That your property does not suffer from either overbearing buildings or an excessively high tree line or continuous high air pressure, and that the installation design is in accordance with current regulatory and best practice guidance and when completed it will not represent a nuisance or a fire/safety risk when operated.
The health and wellbeing of neighbours must be taken into consideration at all times if deciding to agree to the installation of a wood burning appliance.
Restaurant Extraction Smoke & Fume Nuisance
Domestic complaints surrounding restaurant extraction fumes and smoke are increasing as more and more pub restaurants, take aways and high street Pizzerias are serving later into the evening with many business owners relying upon both wood and coal products for fuel. The fumes from food preparation are as dangerous as the fumes and smoke from a wood stove or from open fire operation.
The same regulatory circumstances apply to restaurant extraction smoke and/or fumes, it is therefore an offence to extract smoke and/or fumes from a commercial business that in turn result in a nuisance.
Often a smoke and/or fume complaint is accompanied by related kitchen and/or mechanical noise nuisance, these tend to go hand-in-hand therefore as important given the Db resistance the human ear has to levels of noise.
Mitigating a nuisance is of course a primary objective, however, it must be remembered that there are always two side to any story therefore important that early stage ADR (Alternative Dispute resolution) is engaged upon by all parties irrespective of the involvement of your local authority and certainly before considering expensive litigation
There is no allowance for the jeopardising of someone’s health and wellbeing or for creating a nuisance, furthermore, a registered dispute will have a direct impact upon both the complainants and the defendant’s ability to sell their property whilst engaged in a neighbour dispute.
NACE works in tandem with leading law firms, environmental health solicitors and the ELF (Environmental Law Foundation) on matters relating directly and indirectly to smoke and fume nuisance dispute therefore in an excellent position to offer guidance and advice on this complicated and often complex subject matter.
For further help and assistance call our technical help desk: 01223 774477