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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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If my neighbours smoke is filling the shared wall cavity,

Customer Question

If my neighbour's smoke is filling the shared wall cavity, to the point that we can smell it and everyone in our house wakes with a sore throat and sore eyes, then does section 79 of the environmental protection act mean that the local Environmental Health department should be dealing with the issue.

Also, would we have a good legal case?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.

Alex Watts : Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : Have you yet complained to the council please?
JACUSTOMER-1l78f0gv- :

I have complained and they have used the incorrect answer used by all authorities not wanting to deal with this issue that it is a fault in the partition wall.

JACUSTOMER-1l78f0gv- :

They have not actually inspected the wall. I have used a skilled builder to investigate and found that the issue is with the shared cavity, which means that the neighbour is polluting the shared ventiallation used by our adjoining properties. That is against the legislation and should be actioned out of duty by the EHO

Alex Watts :

On what basis have they said that they do not need to inspect please?

JACUSTOMER-1l78f0gv- :

No basis,

JACUSTOMER-1l78f0gv- :

The Environmental Health Officer said that they don't really do anything in these cases because it's too expensive, it's hard to prove, there is no smoke - he said it was odour, I pointed out that the Law covered nuisance odour.

JACUSTOMER-1l78f0gv- :

He said it was the partition wall, without looking at the partition wall. I took up my flooring and got a builder out, we both agreed that it was evidently flowing in through the houses in built ventilation - the cavity wall.

JACUSTOMER-1l78f0gv- :

There is cavity wall filling by the way, though this is designed to maintain heat not stop air flow.

JACUSTOMER-1l78f0gv- :

I saw my MP, he contacted the EHO, the EHO sent him a letter, which he forwarded to me. This time the EHO was talking about the neighbour's right to do what they want in their own home.

JACUSTOMER-1l78f0gv- :

I reviewed the EHO's letter, which has since been misplaced, the EHO contradicted what he said to me, I realised he was dodging what section 79 sets out as a legally mandated 'duty' on local authorities.

JACUSTOMER-1l78f0gv- :

I contacted the MP by email again, letting him know that I had had the partition wall checked and that it had been identified as coming from the cavity wall - the houses shared ventilation system (we are the end terrace in a small section of housing). The law covers ventilation systems as being something that people cannot pollute.

JACUSTOMER-1l78f0gv- :

I am awaiting the MP's response. I asked him to do two things - first up, ask the question in the houses of parliament to clarify the sense of 'duty' to be placed upon local authorities to deal with the issue.

JACUSTOMER-1l78f0gv- :

Second to reiterate to the EHO their responsibility to do something to protect their citizens as mandated in law.

Alex Watts :

Generally odors coming from a residential property are not covered by the Act, this is for commercial purposes.

Alex Watts :

The Act covers commercial and residential but in terms of odors then this is residential only.

Alex Watts :

If they refuse to consider it then you could only seek to Judicially Review the matter but this is expensive.

Alex Watts :

Your other option is to take action yourself under the tort of nuisance.

Alex Watts :

This is common law where smells, noise etc cause you a nuisance.

Alex Watts :

You would need an expert report and monitoring equipment to show that smoke is coming through and what levels

Alex Watts :

At that point you would be able to issue proceedings and go to Court. A Judge would consider then whether a nuisance is established (so you would rely on the expert report) and indeed what relief to grant you.

Alex Watts :

You could issue proceedings yourself using form N1

Alex Watts :

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf

Alex Watts :

There are Court fees to pay but if you win you get them back. The same if you instruct a Solicitor, there are fees to pay but if you win the Judge can award those to you

Alex Watts :

This is the better option as Judicial Review is a High Court procedure with special rules and procedures. Sadly you wont get legal aid for it.

Alex Watts :

I realise this is not the ideal solution and certainly not the one I want to give you, but I have a duty to be honest

Alex Watts :

Can I clarify anything for you about this today please?

JACUSTOMER-1l78f0gv- :

I hear what you are saying but this is not odour, cigarette smoke has two phases - the particulate phase which contains the tar and the gaseous phase which is almost invisible but contains over 80% of the harmful toxins.

Alex Watts : Yes, however you have two choices as I indicated above, seek a judicial review of the councils decision in the high court or take action yourself for nuisance.
Alex Watts : Have you been to the ombudsman yet?
JACUSTOMER-1l78f0gv- :

It is almost impossible to measure what comes through because of filtration, absorbtion and re-release.

Alex Watts : There must be a way but you would need a specialist expert for this type of report.
JACUSTOMER-1l78f0gv- :

Also, I don't understand how it can only be applied to commercial premises when the act is explicit when discerning commercial from residences and makes no distinction in it's articles under the clauses around nuisance nor the EHO's responsibility to deal with it.

Alex Watts : Have you complained to the Ombudman?
JACUSTOMER-1l78f0gv- :

Where distinctions do apply they are mitigated so that where shared ventilation is affected there is still a duty on the EHO to do something about, at the very least investigate.

Alex Watts : Have you been to the Ombudman please?
JACUSTOMER-1l78f0gv- :

No, how do I contact them?

Alex Watts : Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : Local authorities have a duty to take such steps as are ‘reasonably practicable’ to investigate complaints of ‘statutory nuisance’ as set out in the Environmental Protection Act 1990.7 This duty will usually be carried out by Environmental Health Officers (EHOs). Smoke passing from one premises to another (other than smoke from a chimney) may constitute a Statutory Nuisance under S 79 1(b) of this Act. However, when assessing whether a complaint can be classified as a “nuisance” EHOs must balance differing interests and take into account what is considered to be “reasonable”.
Alex Watts : If the EHO determines that tobacco smoke is permeating from one building into another the officer must determine whether the effect of the smoke permeating is such as to be prejudicial to health or a nuisance.
Alex Watts : An assessment of nuisance must take into account the standards of an average person and not that of someone who is hypersensitive. The duration, frequency, severity, time of day and locality also have a bearing on the assessment of whether there is an actionable nuisance.
Alex Watts : The second arm of Statutory Nuisance it that of prejudice to health. This is an absolute and does not take into account reasonableness. However it demands more than just discomfort or annoyance; it requires evidence of the probability that disease will result in the particular circumstances. Therefore, before the local authority can take any action it must be satisfied that there is a case to answer. Note, this will inevitably vary from one authority to another.
Alex Watts : However if they refuse to take action you can comply to the Ombudsman.
Alex Watts : They offer a free service and can investigate your complaint.
Alex Watts : You can contact them at www.lgo.org.uk
Alex Watts : Can I clarify anything?
Alex Watts :

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.

Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.

Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

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