Statutory guidance

Smoke control area enforcement by local authorities in England

Published 1 May 2022

Applies to England

This guide covers the enforcement action local authorities can take in smoke control areas under the Schedule 1A of the Clean Air Act (as amended by the Environment Act 2021).

Many parts of the UK are smoke control areas where:

• you cannot release smoke from your chimney
• you can only burn authorised fuel, unless you use a Defra approved appliance – this is known as an ‘exempt appliance’

Where the smoke emission rules apply in smoke control areas

The rules cover smoke emissions in a smoke control area from:

• a chimney of any building
• a chimney for the furnace of any fixed boiler or industrial plant
• moored vessels, for example canal boats, if these are included in a smoke control area

A building means any structure with a roof and walls. This includes wooden structures such as sheds and summerhouses.

You can exempt certain buildings or fixed boilers and industrial plants.

Moored vessels

You should consult with the public before you expand your smoke control area to include moored vessels.

If your smoke control area includes moored vessels you can start issuing financial penalties for smoke emissions from vessels such as canal boats. Smoke emissions are allowed from fuel used by an engine to move or provide electric power to the vessel.

You can exempt specified vessels or classes of vessel from your smoke control area.

Heritage sector

The smoke control area rules apply to historic properties, but you can exempt some or all of them.

You may wish to consult with heritage sector representatives before deciding how to treat historic houses in your area.

The rules do not apply to smoke from:

• steam trains
• road steam vehicles, for example traction engines, steam-rollers, steam-powered cars and lorries

Outdoor burning

Smoke from outdoor burning is not covered by smoke control area rules. This includes barbecues, chimineas and pizza ovens which are outside and not in a building.

You can serve an abatement notice if the smoke emissions from outdoor burning are harmful to health or a nuisance. Read guidance on how councils can deal with complaints about nuisance smoke.

Who the smoke emission rules apply to

When smoke is emitted from a chimney in a smoke control area, the local authority can issue a financial penalty to the person responsible.

You can issue a financial penalty to any of the following for smoke emissions in a smoke control area:

• the occupier of the building with the chimney – for example, the homeowner or the tenant
• the owner of the fixed boiler or industrial plant that the chimney serves
• the occupier of the moored vessel, if these are included in the smoke control area

Enforcing smoke emission rules

You should not need to take enforcement action if individuals are using authorised fuel or a Defra approved appliance correctly.

When you first detect smoke from a chimney in your smoke control area, you can choose to issue a written warning to the person responsible. This is known as an ‘improvement notice’.

If they continue to emit smoke from their chimney, you can follow these steps:

1. Issue a notice of intent to the person responsible.
2. Issue a final notice with a financial penalty.

You can give a written warning or notice by:

• handing it to the person responsible
• leaving it at the person’s address
• sending it by post to the person at their address
• emailing it to the person (if you have their consent)

If you cannot contact the occupier of a moored vessel included in the smoke control area, you can give the written warning or notice to the registered owner instead.

Issuing a written warning

If you choose to issue a written warning, it should include:

• the date and time when the smoke was seen
• an explanation of how the person has broken smoke control area rules
• information about the negative impact on local air quality
• information about how the person can burn solid fuels without emitting smoke, including appropriate fuel to burn and which appliances to use
• details of what will happen if they do not follow the rules

Issuing a notice of intent

You can give a notice of intent to the person responsible for smoke emissions from a chimney in a smoke control area. It must tell them:

• that there is enough evidence to prove that smoke was emitted from their chimney in a smoke control area
• when smoke was emitted from a chimney in a smoke control area
• that you intend to issue them with a financial penalty under Schedule 1A of the Clean Air Act (as amended by the Environment Act 2021)
• the proposed amount of the penalty, which can be any amount between £175 and £300
• that they have the right to object in writing to the proposed financial penalty within 28 days from the day after the notice was given – they should write to you (the relevant local authority) and include supporting evidence

If there are further smoke emissions from a chimney after you send a notice of intent, you can issue additional notices for each separate incident.

Financial penalty amount

The financial penalties range from a minimum of £175 to a maximum of £300 for each notice of intent you send.

You should develop and document your own policy on how much to charge those responsible for smoke emissions, which may be based on:

• how serious the offence is
• if it’s a repeat offence

If someone objects to your notice of intent to issue a financial penalty

You can agree to an objection and cancel the fine if any of the following apply:

• there was no smoke emitted from the chimney at the time given in the notice of intent
• a smoke control order did not apply to the chimney at the time given in the notice of intent
• the person sent the notice of intent was not responsible for the chimney at the time given in the notice of intent – in this case, they must provide the name and address of the person who was liable at the time (if they know)
• there are other compelling reasons why the financial penalty should not be imposed
• (for moored vessels) the smoke emission was from the engine and was used to move it or provide it with electric power

If you agree to the objection and decide not to impose a financial penalty, you must tell the person responsible in writing.

Issue a final notice

You can issue a final notice with a financial penalty if the person responsible:

• does not object to the notice of intent within 28 days
• objects within 28 days but you reject the reasons for their objection

If they do not object, you should issue the financial penalty within 56 days from the end of the 28-day objection period.

If they object unsuccessfully, you should issue the financial penalty within 56 days from the date they objected.

The final notice must include:

• the name of the person responsible
• the amount of the financial penalty
• the reasons for imposing the penalty
• information about how to pay the penalty
• the amount of time they have to pay the penalty (within 28 days)
• information about their right to appeal

Withdrawing or amending notices

You can withdraw a notice of intent or a final notice at any time. You can also reduce the amount of the financial penalty.

If you decide not to impose a financial penalty, you must tell the person responsible in writing.

Appeals process

In the final notice, you must tell the person they have the right to appeal within the 28-day period, starting on the day after the final notice was given. They’ll need to appeal to the first-tier tribunal.

You must inform them that they can appeal the financial penalty if it was:

• based on a factual error
• based on a legal error
• unreasonable

If a person appeals against the penalty, you must suspend the final notice until you get the result of the appeal or the appeal is withdrawn.

The first-tier tribunal may:

• cancel the final notice
• confirm the final notice
• change the final notice by reducing the amount of the financial penalty
• ask you as the relevant local authority to decide whether to withdraw or confirm the final notice or reduce the amount of the financial penalty

Keeping and recording financial penalties

You can keep any income you receive from the financial penalties.

It’s good practice to keep a record of financial penalties collected. The information might include the:

• number of financial penalties issued
• number of financial penalties collected
• amount collected

Checking fuel retailers in smoke control areas

It’s illegal to sell and buy unauthorised fuel for use in smoke control areas, unless it’s for use in a Defra approved appliance. This is known as an ‘exempt appliance’.

Unauthorised fuels are also known as ‘controlled fuels’.

Retailers must inform customers that in a smoke control area they:

• cannot use olive logs, wine logs, or fuels which are mostly made of wheat husks, straw, miscanthus, bamboo or compressed food waste
• can only use unauthorised fuels (such as wood) in an appliance that Defra has approved to use with that fuel

Local authorities should check that retailers are informing customers of the rules. For example, retailers may have information attached to the packaging, a sign next to the tills or a message when paying online.

You can prosecute a retailer if they break this rule. The court will decide on the amount of the fine.

There are restrictions on the sale of domestic solid fuels which apply across England, including outside smoke control areas. Read domestic solid fuels: rules for local authorities in England for guidance.

Nuisance smoke rules across England

People who emit smoke from their chimney could be committing a ‘statutory nuisance’ under Part 3 of the Environmental Protection Act 1990, if the smoke emissions are harmful to health or a nuisance. This applies everywhere in England, not just in a smoke control area.

Statutory nuisance laws are separate from smoke control area rules.

Read more about how councils can deal with complaints about nuisance smoke.