In recent years the recent rise in popularity of wood fired bread ovens has brought into focus the requirements of the Clean Air Act 1993. This rise in popularity will inevitably bring with it a stricter approach to the enforcement of the law on smoke control than has so far been the case.
Defra is currently reviewing the Clean Air Act 1993. The 1993 Act aims to reduce pollution from smoke, grit and dust. It gives local authorities powers to designate smoke control areas within the confines of which it is an offence to emit smoke from a chimney unless using an approved fireplace or approved fuel. Defra is looking at ways to simplify the process for approving fireplaces and fuels for use in smoke control areas and it is this aspect of the review which is likely to yield the greatest benefit to those who want to use a wood fired bread oven in a smoke control area.
The review began in early 2012 and a report was commissioned1 to assess the impact of changes to the 1993 Act. A formal consultation is planned for summer 2013 and will be followed with a second round of consultation on detailed proposals in 2014. This timetable means the 1993 Act will remain in force as it now stands for the foreseeable future and its provisions must be taken fully into account.
2 The Clean Air Act 1993
The occupier of any building within a smoke control area from which, on any day, smoke is emitted from a chimney is guilty of an offence under section 20 of the Clean Air Act 1993.2
The first consideration is to establish whether or not you are in a smoke control area. Smoke control areas have been introduced in many large towns and cities in the UK (including virtually all of London) and in large parts of the Midlands, the North West of England, Yorkshire, the North East of England, Central and Southern Scotland. In order to establish whether you are in a smoke control area contact the environmental health department of your local authority.
If you are located within a smoke control area Defra state:
You’re allowed barbecues and chimineas, but if your barbecue lets smoke out through a chimney of a building - like a summerhouse - it’s only allowed if it uses gas or electricity.
The position so far as a wood fired bread oven in the garden or a mobile bread oven is concerned appears less clear. The common sense view would be that the 1993 Act does not apply. This is because it applies to smoke emitted from the chimney of a building and a building is a:
Structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education, and the like. A structure or edifice inclosing a space within its walls, and usually, but not necessarily, covered with a roof.3
On the other hand:
What is a ‘building’ is generally a question of degree and circumstance and its ordinary meaning is a block of brick or stone work, covered in by a roof.4
So much so that there exists judicial authority that, contrary to the view expressed by Defra, a barbecue has been held to be a ‘building’.5 It is fair to say that in the case in question, the barbecue built by Mrs Allan was no ordinary barbecue:
It is 10 feet high in all. There is a wall 6 feet 6 inches high. The base of the building is 8 feet. It has two chimneys, each 3 feet 6 inches high, on top of the wall. It is 3 feet 6 inches from the adjoining wall, which is about 8 feet high. So the two chimney stacks are about 2 feet above the wall. We have been shown photographs. It is really like a large erection – quite different from how I imagined a barbecue to be. It is almost like an open-air oven – as though you had the kitchen grate outside.6
Take away the second chimney and perhaps a little smaller footprint and the description begins to read like an outdoor wood fired oven. The absence of any degree of permanence points to the conclusion that a mobile bread oven does not fall within the definition of a ‘building’, the same cannot be said of a wood fired bread oven in the garden. There is no general rule which can be applied and everything depends on the particular circumstances of an individual case. The only conclusion which can safely be reached is that this is an area of legal uncertainty.
A wood fired bread oven in a building is clearly covered by the provisions of the 1993 Act. The emission of smoke from the oven chimney would constitute an offence under section 20, unless either an exempted appliance or an authorised fuel is used.
A local authority in making a smoke control order may make different provision for different parts of the smoke control area, limit the operation of section 20 to specified classes of building in the area and may exempt specified buildings or classes of building or specified fireplaces or classes of fireplace in the area on such conditions as may be specified.7 The Secretary of State has similar reserve powers to act in default.8
The Secretary of State may also by order exempt any class of fireplace, on such conditions as may be specified, from the provisions of section 20, if satisfied the fireplace(s) can be used for burning fuel other than authorised fuels without producing any smoke or a substantial quantity of smoke.9 An ‘authorised fuel’ means a fuel declared by regulations of the Secretary of State to be an authorised fuel.10
The occupier of a building must first receive notice that an offence under section 20 is believed to have been committed and it is a defence to a prosecution under section 20 to prove either no notice was given11 or the smoke emitted was caused by the use of an authorised fuel.12
3 Exempt Appliances and Authorised Fuel
3.1 Exempt Appliances
The Smoke Control Areas (Exempted Fireplaces) (England) Order 2015 permits some ovens, cookers and stoves to burn banned fuels, including wood, wood chips and pellets. The ovens approved and the fuel(s) for which they are approved are listed in the table below.14
There may also be additional restrictions imposed on the operation of particular ovens. Care should be taken in selecting an oven to ensure the particular model is approved and is fit for the proposed use and intended location.
Bushman Pizza Ovens manufactured by Dingley Dell Enterprises Ltd
Gozney wood-burning pizza ovens manufactured by Gozney Ltd
Orchard Ovens models manufactured by Valoriani
Wood Fired Ovens by Jamie Oliver Ltd models manufactured by Valoriani
Wood Stone Ovens models manufactured by the Wood Stone Corporation
The approvals listed in the above table come into effect on 6 April 2015, although several were approved under earlier regulations. All these ovens may also, of course, use any authorised fuel.
There are many other models of wood fired bread oven available to purchase in the UK for use outside smoke control areas. If you are located within a smoke control area it would be wise to confirm that any prospective purchase is an exempt appliance under the latest Defra approval before proceeding, particularly so if the proposed use is for commercial purposes within a building.
3.2 Authorised Fuel
The Smoke Control Areas (Authorised Fuels) (England) (No. 2) Regulations 2014 designate those fuels which are, for the time being, authorised fuels15 and which comprise the following:
Low volatile steam coals
The fuels described in the Schedule to the 2014 Regulations.
The Schedule lists some 70 firelogs and briquettes but none are identified as being suitable for restaurant use. In early 2012 Big K Products Ltd announced the first and, to date, only restaurant grade charcoal manufactured in Argentina which has been approved for use in smoke-controlled areas.16
3.3 Help and Information
The statutory instruments used to designate exempt appliances and authorised fuels are regularly updated. The latest version can be found on legislation.gov.uk by searching for ‘smoke control fireplaces’ or ‘smoke control fuels’ according to which latest news is required.
The UK Wood-Fired Oven Forum is a place full of debate surrounding everything you need to know about wood fired ovens. If you can’t find the answer you are looking for start a new conversation.
1 AEA, Assessment of the Effectiveness of Measures under the Clean Air Act 1993, Report prepared for Defra, 2012
3 Black’s Law Dictionary, 5th edition, 1979
4 Stroud’s Judicial Dictionary, 8th edition, 2012
5 Windsor Hotel (Newquay) v Allan, The Times, 2 July 1980
6 Ibid., per Lord Denning MR
13 Currently £1,000
16 The Smoke Control Areas (Authorised Fuels) (England) (no. 2) Regulations 2014 SI 2014/2366, r2(f) and Schedule, para 5