23.—(1) Smoke other than—
(a)smoke emitted from a chimney of a private dwelling; or
(b)dark smoke emitted from a chimney—
(i)of a building; or
(ii)serving the furnace of a boiler or industrial plant attached to a building or for the time being fixed to or installed on any land; or
(c)dark smoke emitted otherwise than as mentioned in sub-paragraph ( b) from industrial or trade premises within the meaning of Article 4;
shall, if it is[F1 injurious, or likely to cause injury, to the public health or a nuisance], be deemed to be a nuisance within the meaning of section 107 of the Public Health (Ireland) Act 1878 [1878 c.52] and the provisions of that Act (other than section 288 (saving for mines, etc.)) shall, subject to this Article, apply in relation to it.
(2) In any proceedings brought by virtue of this Article where smoke is emitted from a chimney, it shall be a defence for the defendant to prove that the best practicable means had been employed to prevent the nuisance.
24.—(1) Where after the date of the coming into operation of Article 62 of the Pollution Control and Local Government (Northern Ireland) Order 1978 [1978 NI 19]
(a)any person erects or raises a building (in this Article referred to as the “taller building”) to a greater height than an adjoining building, and
(b)any chimneys or flues of an adjoining building are in a party wall between the two buildings or are[F2 1.83 metres] or less from the nearest part of the taller building,
the district council may by notice in writing—
(i)require that person, within such time as may be specified in the notice, to build up those chimneys and flues, if it is reasonably practicable so to do, so that the top of them will be of the same height as the top of the chimneys of the taller building or the top of the taller building, whichever is the higher, and
(ii)require the owner or occupier of the adjoining building to allow the first-mentioned person to enter on that building and carry out such work as may be necessary to comply with the notice served on him;
so, however, that, if the owner or occupier, within fourteen days from the date of service of the notice on him, serves on the first-mentioned person and on the district council a notice (in this Article referred to as a “counter-notice”) that he elects to carry out the work himself, the owner or occupier shall comply with the notice served under sub-paragraph (i) instead of the first-mentioned person and may recover the expenses reasonably incurred in so doing from that person.
(2) Any person on whom a notice is served under paragraph (1)(i) or (ii) may appeal to a court of summary jurisdiction.
(3) If—
(a)any person on whom a notice is served under paragraph (1)(i) fails to comply with the notice, except in a case where the owner or occupier of an adjoining building has refused to allow entry on that building, or has refused to allow the carrying out of any such work as may be necessary to comply with the notice, or has served a counter-notice, or
(b)any person on whom a notice is served under paragraph (1)(ii) fails to comply with the notice or, having served a counter-notice, fails to comply with the notice served under paragraph (1)(i),
he shall be guilty of an offence; and the district council may itself carry out such work as may be necessary to comply with the notice served under paragraph (1)(i), and recover the expenses reasonably incurred in so doing from the person on whom that notice was served.
F2SR 1994/192
24A.—(1) Articles 3 to 24 shall not apply to any process which is a prescribed process as from the date which is the determination date for that process.
(2) The “determination date” for a prescribed process is—
(a)in the case of a process for which an authorisation is granted, the date on which the enforcing authority grants it, whether in pursuance of the application or, on an appeal, of a direction to grant it;
(b)in the case of a process for which an authorisation is refused, the date of the refusal or, on an appeal, of the affirmation of the refusal.
(3) In this Article “authorisation”, “enforcing authority” and “prescribed process” have the meaning given in Article 2 of the Industrial Pollution Control (Northern Ireland) Order 1997 and the reference to an appeal is a reference to an appeal under Article 15 of that Order.]