This policy sets out The London Borough of Bromley’s (‘the council’) position in respect of the Clean Air Act 1993 (as amended), to deal with smoke emissions from chimneys within a Smoke Control Area. This includes investigation of potential breaches, criteria for issuing financial penalties, determining objections, the appeals process, and payment of the fees.
This policy contains specific information in relation to smoke control and financial penalties, however, it should also be read in conjunction with the council’s overarching Enforcement Policy and any relevant statutory guidance.
1.1 Smoke Control Areas may be declared under Sections 18 and 19 of the
Clean Air Act 1993 for all, or part/s, of a local authority area. The council’s
Smoke Control Area covers the entire borough except for parts of Darwin
and Chelsfield wards. The list of street names exempt from the Smoke Control
Area should be read alongside the borough map, which can be viewed on Bromley
Council’s website here. 1.2 In a Smoke Control Area, smoke cannot be released from a chimney attached
to a building and only authorised fuels are permitted, unless a Defra approved
appliance is used, this is also known and referred to as an ‘exempt appliance’. 1.3 The Government introduced provisions in the Environment Act 2021,
amending the Clean Air Act 1993, which replace the criminal offence of
emitting smoke from a chimney in a Smoke Control Area with a civil penalty
regime. The amendments also include the removal of the statutory defence
of smoke emitted from a chimney of an approved or exempt appliance. The
changes to the law mean there is now a simpler, decriminalised, regime
for smoke control enforcement. A penalty notice may be issued by a local
authority enforcement officer where they witness, or otherwise have good
reason to believe there was, the emission of smoke from a chimney, regardless
of the appliance being used or the type of fuel burned. 1.4 Under section 19A and Schedule 1A, if on any day, smoke is emitted
from a chimney within a Smoke Control Area, the occupier of the building
may be issued with a financial penalty of between £175 and £300. The government
has issued statutory enforcement 2 guidance which advises that local authorities
need to develop and document their own policy on how much to charge those
responsible for smoke emissions. 1.5 Smoke from outdoor burning is not covered by Smoke Control Area rules
and is outside the scope of this policy. This includes barbecues, chimineas,
fire pits and pizza ovens which are outside, and therefore not in a building.
However, this may amount to a statutory nuisance under the Environmental
Protection Act 1990 if the smoke emissions from outdoor burning are harmful
to health or a nuisance. Smoke from a chimney attached to a building of
a domestic premises may also amount to a Statutory Nuisance.
2.1 Even with an exempt appliance, it is likely that a small amount of
smoke may be emitted from a chimney when a fire is first lit and again
on refuelling. If this persists for longer than 30 minutes a Financial
Penalty Notice (FPN) may be served. This ‘time tolerance’ does not to apply
to appliances that are not exempt. The onus is on the person responsible
for the appliance to demonstrate the appliance is approved, the default
presumption will be that the appliance and fuel are not approved.
2.2 If we receive a report that smoke is being emitted from a chimney,
we will require evidence to be submitted regarding the day and time, the
intensity, frequency, and duration of the smoke emissions, along with time
stamped photographs, or video footage to substantiate the report/s.
2.3 In the first instance, a written warning to the person responsible
will be issued. The property will then be monitored by the Borough’s Out
of hours service and placed on their referral list. The public may then
report smoke from a chimney to the Out of hours team, allowing the opportunity
for independent evidence to be gathered. The Out of hours service operates
between 7pm and 2am Friday, Saturday, Sunday, and Bank Holidays, and is
contactable by telephoning 0300 303 8657. Calls will only be passed through
to the Out of hours service for properties that are already under investigation
and that are on the service’s referral list.
2.4 Where a report has been substantiated, a ‘Notice of Intent’ will be
issued to the responsible person and will tell them:
2.5 If there are further smoke emissions from a chimney after a ‘Notice
of Intent’ is sent, additional notices can be issued for each incident,
which could result in multiple Financail Penalty Notices.
3.1 When smoke is emitted from a chimney in a Smoke Control Area, the
local authority can issue a financial penalty to the person responsible,
or the occupier of the building with the chimney - for example, the
homeowner, the tenant; or the owner of the appliance, fixed boiler, or
plant that the chimney serves.
3.2 The financial penalty charged ranges from a minimum of £175 to a maximum
of £300 for 3 each notice of intent issued, the latter for repeat offences.
4.1 The person the Notice of Intent was served on can object to the proposed
financial penalty within 28 days from the day after the notice was issued.
We can agree to an objection and cancel the fine if any of the following
apply:
4.2 Any objections should be made in writing to the LB Bromley Environmental
Protection team. Evidence to support one or more of the grounds above will
need to be included. If the objection is upheld, the team will inform the
person responsible, in writing, within 14 days of receipt of the objection.
5.1 If we do not receive a valid objection to the Notice of Intent, a
‘Final Notice’ will be issued within 56 days from the end of the 28-day
objection period.
5.2 If we receive an objection within the prescribed timescale, and the
reason/s for any objection submitted are rejected, the financial penalty
will be issued within 56 days of the date the responsible person objected.
5.3 If we issue a ‘Final Notice’ it will include:
5.4 We will give a written warning or notice by one of the following means:
6.1 The ‘Final Notice’, will detail the right to appeal within a 28-day
period, starting on the day after the final notice was given.
6.2 Appeals will need to be made to the first-tier tribunal: The First
Tier Tribunal (General Regulatory Chamber) HM Courts and Tribunals Service,
PO Box 9300, Leicester, LE1 8DJ. Tel: 0300 123 4504. Email:
grc@justice.gov.uk
6.3 More information on this can be found at: Judiciary website.
6.4 The financial penalty can be appealed if it was:
6.5 If the responsible person appeals the penalty notice, we will suspend
the final notice until the result of the appeal is known, or the appeal
is withdrawn.
6.6 The first-tier tribunal may:
7.1 The recipient of a Financial Penalty will be issued with an invoice.
The invoice will include details of how payment is to be made.
Background
Investigation and enforcement
Financial penalty amount
Offence
Fee
First FPN under the Clean Air Act 1993 (As amended)
£175
Second and all subsequent FPNs issued under the Clean Air Act 1993 (As
amended)
£300 for each subsequent breach
Objections
Final notice
Appeals process
Payment of the Financial Penalty fee