Air Pollution I
The Clean Air (NI) Order 1981 is administered by the district council and is based on the Clean Air Act (NI) 1964.
It is an offence to emit dark smoke from a chimney of a building. Smoke includes soot, ash, grit, and gritty particles emitted in smoke. There is a technical definition of dark smoke. The chimney includes any opening or structure from which smoke may be emitted. The occupier of the building is guilty of an offence.
Defences to proceedings are available in cases where the contravention is related to lighting up a furnace without a practicable alternative, contravention due to the failure of a furnace or apparatus that cannot be reasonably foreseen, contravention was due to the use of unsuitable fuel or suitable fuel is unobtainable, or no practicable steps were taken to prevent the emission of dark smoke.
District councils have the authority to take proceedings to enforce breaches of the legislation. They are obligated to notify the person liable if the offence has been committed as soon as possible. If the notice is not given in writing, the district council must confirm the notification within four days of becoming aware of the offence. Failure to comply may constitute a defence in certain circumstances. Similar offences exist in respect of emissions from vessels.
It is also an offence to emit dark smoke from any industrial or trade premises, and the occupier of the premises is guilty of an offence. Industrial or trade premises are those used as such or premises not so used where the matter burnt is connected with an industrial or trade process.
A defence can be established by proving that the breach was inadvertent and that all practicable measures were taken to prevent or minimize the emission of dark smoke. The offences are subject to a maximum fine of £2,500 upon summary conviction. District councils have the authority to exempt businesses from the operation of the above provisions if they consider it expedient to do so.
Furnaces that are incapable of being operated without emitting smoke must not be installed in a building or in any boiler or industrial plant. The district council must be notified of the intention to install a furnace in the building, boiler, or plant, unless the furnace is installed in accordance with plans approved by the District Council. Failure to notify the council or install in accordance with the approved plans is an offence.
Breach of legislation is an offence for which a person may be convicted upon summary conviction.
The Department may prescribe regulations for the emission of grit and dust from chimneys or furnaces in which solid, liquid, or gaseous matter is burnt. These regulations do not apply to domestic furnaces used for heating a boiler with a specified maximum capacity. It is a defence to prove that the best practicable means have been used to minimize the emission. The District Council may exempt chimneys from the operation of the regulations.
Regulations may also be made by the Department of the Environment in relation to the emission of fumes.
Furnaces of the type described used to burn fuel or waste must not do so unless the furnace is provided with a plan for arresting grit and dust. Plans and specifications for the plant that arrests grit and dust must be approved by the District Council. The furnace must comply with minimum standards prescribed by regulation for the concentration of emissions of grit and dust. Certain older furnaces are exempted, and exemptions may be allowed.
Where the District Council is satisfied that the grit or dust from a chimney servicing a furnace in the building would not be prejudicial to public health or a nuisance, an exemption may be granted. If an exemption is not granted, notification of the decision must be given, along with the reasons. An appeal may be made to the Department of the Environment.
The District Council may serve a notice requiring emissions from furnaces to be measured and recorded, and it is an offence to fail to comply. The council may also require the occupier to furnish information about furnaces and the fuel and waste being burned, and it is an offence to fail to provide the requisite information.
Plans for the erection of chimneys must be submitted to the District Council for approval, except for chimneys of residences or offices. The District Council may approve plans subject to ensuring that the height of the chimney is sufficient to prevent smoke, grit, and gases from becoming a nuisance or prejudicial to health.
The Council may require a chimney built in contravention of the requirements to be pulled down. They may also undertake the works or recover the cost itself from the occupier. It is an offence to use the chimney unless the protector has been approved, and the conditions of approval complied with. There is a right of appeal against the refusal of the District Council to grant approval for the construction of a chimney.
District Councils may declare smoke control areas, which require the use of smokeless fuels and the installation of smokeless fires. It is an offence to emit smoke within a smoke control area once it has been declared. The councils must give notice of the offence as soon as possible, and if a verbal warning is given, it must be confirmed in writing within four days.
It is a defence to prove that the emission of smoke did not cause any fuel alert on authorized fuel. Authorized fuel is that prescribed as authorized, taking into account its sulfur content.
Additionally, there are regulations relating to the supply and sale of authorized fuel in smoke control areas, along with regulations generally related to the sulfur content of fuel.
Smoke control orders may make different provisions in different parts of the area, limit certain types of buildings, and exempt certain types and classes of buildings and fireplaces.
The Department for Environment may prescribe the conditions and the types of fireplaces that may be used in a smoke control area for burning non-authorized fuel, provided it is satisfied that the fireplace may be used for burning unauthorized fuel without producing any smoke or a significant quantity of smoke.
District Councils may be directed to create smoke-control areas by the Department of Environment to comply with EU air pollution standards. When a smoke control area order is made, and this necessitates expenditure on adaptations in connection with it, part of the cost may be recovered from the District Council.
The district council may require adaptations to be made to a dwelling within a smoke-controlled area to ensure compliance. A notice may be served requiring alterations, and works may be required to be undertaken after 21 days. An appeal may be made to the magistrate court, which may confirm or amend the required adaptation.
If the notice requiring adaptations is not complied with after the relevant time limit, the District Council may enter and carry out the works and recover all or part of the expenses. The District councils may also make grants towards adaptations required to premises to comply with the regulations.
If smoke is a nuisance to inhabitants, it may be deemed a statutory nuisance within the Public Health Act. This does not apply to smoke emitted from a dwelling house, dark smoke from a chimney of a building, or serving the furnace of a boiler or industrial plant attached to a building, dark smoke emitted otherwise and both from an industrial or trade premises.
Persons liable must be notified as soon as practicable, and the failure to notify may be a defence in a prosecution.
If a person proposes to erect or raise the height of a building to not greater than an adjoining building, and any chimneys of the adjoining building are in the party wall between the two and are less than 1.83 meters from the nearest part of the taller building, the District Council may require the person erecting the taller building to build up the chimney or flues of the adjoining building if it’s reasonably practicable to do so, so that the top of the chimney or flues would be of the same height as the top of the chimneys of the taller building. The notice may require the owner or occupier of the adjoining building to allow the person erecting the taller building to enter and undertake the work.
The owner or occupier of the lower building may serve a counter notice to the effect that they wish to carry out the work themselves. In this event, they may recover the expenses incurred from the person erecting the taller building.
Where there are emissions of dark smoke or grit or dust from governmental buildings, emissions of smoke where they are darkened up from premises in the smoke-controlled area, or emissions of smoke, whether dark or not, in circumstances that appear to be a nuisance to the inhabitants, there is an obligation on the district council to report the matter to the relevant government department.
Requirements may be made in relation to heating and cooking arrangements in buildings designed to prevent or minimize the emission of smoke. The regulations provide for appliances that may be installed in areas specified in the regulation.
If works are necessary to enable a building to comply with the order, the occupier may apply to the County Court for consent when unable to obtain the owner’s consent. An order may also be applied for, requiring some other person such as the owner to indemnify the occupier in respect of the cost of the work.