Honghong Zhang v Newcastle City Council

1. The appeal is dismissed and the final notice issued on 30 September 2024 is confirmed. REASONS Background

2. The appellant appeals against the decision made on 30 September 2024 to impose a fixed penalty for the emission of smoke in a smoke controlled area.

3. The appellant is the occupier of a property in Grosvenor Road, Newcastle upon Tyne (the property), which is within a smoke control area. Newcastle City Council has, since June 2022, received periodic complaints about the emission of smoke from the chimney of the property.

4. The respondent received evidence of an emission of smoke from the property on 27 June 2023. On 3 July 2023 the respondent sent the appellant an improvement notice. The notice informed the appellant that smoke was observed coming from a chimney at the property and that as the property is within a smoke control area, it is against the law to release smoke from her chimneys. It is stated that the purpose of the letter is to make her aware of the smoke control area rules and to inform her that she may be fined if smoke is observed from her chimney again. The letter also provided links to relevant information about what kinds of fuels may be burnt in a smoke control area and to the Department for Environment Food and Rural Affairs (DEFRA) document Smoke Control Areas: Do you know the rules? A practical guide dated April 2022. The appellant was advised that if she complied with the rules, no further action would be taken, but if she did not, she could be fined up to £300.

5. The respondent received video evidence of emissions of smoke from the property at 12:27 and 12:59 on 15 August 2024. As a result, the respondent sent a notice of intent to the appellant on 21 August 2024 informing her of the intent to issue a penalty notice of £175. The notice of intent contained a link to an interactive map showing the smoke control area within which the property is located; and was accompanied by screenshots of the smoke emissions taken from the videos. The notice informed the appellant of the proposed amount of the penalty; her right to object; the timescale within which an objection must be made; and the grounds on which an objection could be made. The notice of intent also contained links to information and guidance about smoke control areas.

6. The appellant did not respond.

7. On 30 September 2024 the respondent decided to impose a financial penalty and sent a final notice to the appellant. The final notice specifies the amount of the penalty; provides details of how the penalty may be paid; gives a deadline of 28 days for payment; and notifies the appellant of her right of appeal within 28 days.

8. The appellant lodged a notice of appeal dated 26 October 2024. The law

9. Part III of the Clean Air Act 1993 ( the 1993 Act ) makes provision for the creation and regulation of smoke control areas. Section 19A makes provision for financial penalties for the emission of smoke.

10. Section 28A provides that local authorities in England must have regard to guidance published by the Secretary of State about the exercise of the authority’s functions under Part III. Statutory guidance Smoke control area enforcement by local authorities in England was published on 1 May 2022.

11. Schedule 1A to the 1993 Act makes provision for the imposition of financial penalties in relation to the emission of smoke in smoke control areas in England.

12. Paragraph 2 provides that where a local authority is satisfied on the balance of probabilities that on a particular occasion smoke has been emitted from a relevant chimney within a smoke control area, it may give the liable person a notice of intent. A notice of intent must inform the person that the local authority is satisfied that smoke has been emitted; specify when smoke was emitted; inform the person that it intends to impose a financial penalty; and give details of the right to object to the imposition of a financial penalty.

13. Paragraph 3 provides for a minimum (£175) and maximum (£300) level of financial penalty.

14. Paragraph 4 provides for a right to object to the imposition of a financial penalty within 28 days of the notice of intent. The objection should be made in writing and may be accompanied by any evidence which supports the objection. The grounds on which an objection can be made are: (a) That there was no emission of smoke from the chimney on the occasion specified in the notice of intent. (b) That the chimney was not a chimney to which a smoke control order applied on the occasion specified in the notice of intention. (c) That the person to whom the notice of intent was not a person liable in relation to the chimney on the occasion specified in the notice of intent. (d) That there are other compelling reasons why the financial penalty should not be imposed.

15. Paragraph 5 provides that where a local authority has given a notice of intent to a person, it may impose a financial penalty on the person within 56 days from the day on which an objection is made, or if no objection is made, within 56 days from the end of the period for objecting. If the local authority decides not to impose a financial penalty, it must give notice to that person which informs them that a financial penalty will not be imposed.

16. Paragraph 6 provides that where a local authority decides to impose a financial penalty on a person who was given a notice of intent, it must give a final notice to that person. The final notice must specify the amount of the financial penalty; the reasons for imposing the penalty; information about how to pay the penalty; the period for payment of the penalty; and information about their rights of appeal. The final notice must require the financial penalty to be paid within 28 days of the date on which the final notice is given.

17. Paragraph 7 provides that a local authority may at any time withdraw a notice of intent or final notice or reduce the amount of a financial penalty specified in a final notice.

18. Paragraph 8 provides for a right of appeal to this tribunal within 28 days of the date on which the final notice was given. The available grounds of appeal are that the decision to impose the financial penalty was based on an error of fact; wrong in law; or unreasonable. Where a person appeals, the final notice is suspended until the appeal is finally determined or withdrawn. The tribunal may quash the final notice; confirm the final notice; vary the final notice by reducing the amount of the financial penalty; or remit the decision whether to withdraw or confirm or vary the final notice to the local authority. The respondent’s case

19. It is the respondent’s case that on 15 August 2024 the appellant caused smoke to be emitted from her chimney at the property, contrary to Newcastle upon Tyne Smoke Control Order 17 of 1973. The respondent submits that the procedural requirements of Schedule 1A to the 1993 Act are satisfied and that as the occupier of the property, the appellant is liable for the emission. The respondent’s position is that the appellant has failed to provide a compelling reason as to why she should not have to pay a financial penalty and that the final notice should be confirmed. The appellant’s case

20. In her grounds of appeal, the appellant states that on 21 August 2024 she had people repairing her fireplace and carrying out annual cleaning. She states that she left for work between 10:00 and 11:00 and left the workers at the property to complete their work. She states that having completed the work, the workers tested whether the chimney was working properly, causing the emission of smoke. The appellant asks the tribunal to quash the final notice.

21. In her statement dated 15 April 2025 (page 57-58 of the hearing bundle), the appellant confirms that she is the resident and occupier of the property. She states that on 15 August 2024, she was at work and was not present at the property at the time of the emissions. She states that she had hired workers earlier in the summer to carry out cleaning and repair work on her chimney. She states that as part of testing the chimney, they may have burned material to check airflow and function. The appellant provided two photographs of the fireplace/chimney.

22. The appellant asserts that since becoming aware of the emission, she has ensured that she has made sure that her fireplace is compliant with the 1993 Act , and that she has never intentionally used unauthorised fuel.

23. The appellant contends that the evidence relied on by the respondent shows only light grey smoke and does not prove the use of unauthorised fuel or the presence of black smoke. The appeal hearing

24. The hearing took place by video and there were no objections to this as a suitable method of hearing.

25. The appellant had not requested an interpreter in her notice of appeal but indicated that she required a Mandarin interpreter. She had a friend present who she wished to interpret for her. It was explained that if she required an interpreter, it would need to be an independent interpreter provided by the tribunal. The appellant stated that she speaks English and that if everyone spoke slowly, she would be able to understand. We asked the clerk to the tribunal to make enquiries as to whether a Mandarin interpreter could be found at short notice in the event the appellant was unable to participate effectively in the hearing. The hearing proceeded without an interpreter and the appellant was provided with opportunities to clarify anything she did not understand. She did not raise any concerns.

26. The appellant stated that she had not received the appeal bundle. Ms Bagshaw advised that it was served on the appellant on 24 April 2025. The appellant could not locate it, and Ms Bagshaw re-sent it to the appellant before the hearing began. She confirmed that she had received it and was able to refer to its contents during the hearing.

27. Two witnesses gave evidence for the respondent. The first was Mr Michael Terry, senior environmental health practitioner employed by the respondent. The second was Ms Nausheen Ajaheb, the complainant who reported the emissions. They both adopted their witness statements and answered questions from the panel. The appellant confirmed that she had no questions for either of the witnesses.

28. In determining the appeal, we considered the oral evidence and submissions together with the documents contained in the hearing bundle, which was prepared by the respondent. We also considered the two videos from which the screenshots relied on by the respondent were derived. These were provided to the tribunal and to the appellant during the hearing. The appellant confirmed that she was able to consider the videos. Findings and reasons

29. The following matters are not disputed between the parties: (i) That the property is within a smoke control area. (ii) That the appellant is the occupier of the property and that she is the liable person. (iii) That the respondent had regard to relevant statutory guidance. (iv) That the respondent properly issued a notice of intent and a final notice, both of which comply with the requirements of paragraphs 2 and 6 of Schedule 1A to the 1993 Act respectively.

30. The issues for determination in in this appeal are therefore: (i) Was smoke emitted from a chimney on the property on 15 August 2024? (ii) Was the decision unreasonable? Was smoke emitted?

31. The appellant did not challenge that the evidence relied on relates to her chimney in her grounds of appeal or in her statement of 15 April 2025. She did however question how she could be sure that the screenshots/video related to her property at the hearing. Ms Bagshaw asked Ms Ajaheb some questions at our request about the viewpoint from where the video was taken and her property in relation to the appellant’s property. The appellant declined to ask Ms Ajaheb any questions, and she did not adduce any evidence to suggest that the video could not or did not depict her chimney.

32. We are satisfied that it is more likely than not that the video evidence relates to the chimney of the property which the appellant occupies.

33. The appellant disputed that the videos show black smoke. For the purposes of section 19 A and Schedule 1A of the 1993 Act , all that is required is the emission of smoke. There is no requirement that the smoke be dark or black in order for a financial penalty to be imposed. We note that section 1 of the 1993 Act prohibits the emission of ‘dark smoke’ from chimneys, and that ‘dark smoke’ is defined in section 3 of the 1993 Act . Those provisions are not relevant to this appeal, as this appeal relates to the emission of smoke in a smoke control area under Part III of the 1993 Act .

34. We are satisfied on the balance of probabilities that the video evidence shows smoke being emitted from the chimney at 12:27 on 15 August 2024 and again at 12:59 on 15 August 2025. The meta data displayed on the screenshots records the date and time. Both videos clearly show smoke being emitted. We are satisfied that smoke was emitted from the appellant’s chimney in breach of Newcastle upon Tyne Smoke Control Order 17 of 1973. Was the decision unreasonable?

35. The appellant essentially raises three matters. The first is that the smoke was emitted during the testing of her chimney following repairs. The second is that there is no evidence that unauthorised fuel was burnt in the fireplace. The third is that she was not present and was not aware of the fact of the emission of smoke when it occurred.

36. We accept that as part of the process of repairing a chimney, it may well be reasonable to test the chimney to ensure that air was correctly flowing through it and that it was in working order. However, we find that the appellant has failed to show on the balance of probabilities that the smoke was emitted during the testing of her chimney following cleaning and repair. The appellant failed to provide any evidence that workers were in fact present at her property on 15 August 2024, the date of the emissions. She provided text messages (pages D5-D6 of the appeal bundle) which are apparently between her and the people responsible for carrying out work on her chimney. We accept that these messages show that the appellant’s chimney was swept on 14 June 2024. There is no other evidence as to when workers attended the property or carried out work.

37. As to whether unauthorised fuel was burnt during testing of the chimney (or for any other purpose), we accept that there is no evidence as to precisely what was being burnt on 15 August 2024.

38. We accept Mr Terry’s evidence that if a fireplace and chimney are working effectively and authorised fuel is being burnt, there should be no smoke emitted after a relatively short period – five to ten minutes in his estimate. The appellant did not challenge this evidence despite having the opportunity to do so. The evidence before us shows that the chimney was emitting smoke at 12:27 and again at 12:59, some 32 minutes apart. This suggests that either unauthorised fuel was being burnt, or that the fireplace/chimney was not operating effectively, causing the emission of smoke.

39. Even if we were to accept that the smoke was emitted in the course of testing the fireplace/chimney, we do not accept that this makes the imposition of a financial penalty unreasonable. It is not unreasonable to expect that testing should be carried out in accordance with the smoke control order. There is no evidence before us that testing could not have been completed within the initial period after lighting the fire during which time a small amount of smoke might be expected, i.e. with the first five to ten minutes.

40. The appellant states that she was at work at the relevant time on 15 August 2024. She has provided no evidence to support her assertion in this regard. Even if she was not present at the property, and it was in fact workers who caused the emission of smoke, the appellant is the occupier of the property and is therefore responsible for ensuring compliance with the smoke control order.

41. For all of these reasons, we find that the appellant has failed to show that the respondent’s decision is unreasonable. Conclusion

42. We find that smoke was emitted in breach of the smoke control order on 15 August 2024 and that the respondent’s decision is reasonable. The appeal is dismissed. Signed J K Swaney Date 25 November 2025 Judge J K Swaney Judge of the First-tier Tribunal