Smoke from neighbour’s boiler & trees blocking out sunlight

Q Our neighbours, with whom we have an acrimonious relationship, have placed an oil boiler along a wall that separates our properties. Its pipe is facing into our rear garden where our children frequently play and this morning smoke was flowing into our garden. Are there any regulations with regard to where boilers can be located?

A Unfortunately, relationships with neighbours can become problematic especially when boundaries are breached. In your case it is probable that the boiler in question is both improperly located and probably requires maintenance since the combustion gases are visible as smoke and encroaching into your garden.

Unlike gas boilers, oil boilers are not well regulated by legislation other than the Building Regulations. Section 4 of “old” Technical Guidance Document (TJD) J refers to BS 5410 part 1 1977. Generally there is no statement about flues crossing boundaries, but it does say a flue should be not less than 600mm above the roof line. The new TGD coming into force in September suggests 600mm is the minimum boundary distance, however, as it’s an existing situation it can’t help you. There is also a question if the flue terminal is within limits requiring protection from contact.

In the first instance I would recommend speaking to your neighbour and discussing your concerns and asking them if alterations to the location of the flue can be made. If your neighbour is resistant to relocating the flue then you might consider a plume diverter, this is a non-combustible device on your side of the boundary that sends hot gases upwards instead of outwards but at best is a stopgap solution. It should be no more than 2 metres high or planning permission might be needed.

If your relationship is past repair, you might consider legal action. In the law of tort a famous case set precedent known as Rylands v Fletcher; this says: “the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”. In your case, the fact that the potentially dangerous flue gas is crossing the boundary and causing “mischief” will provide a legal adviser with sufficient evidence to act on your behalf. How you then live with your neighbour might be another matter?

My advice is to try to speak to your neighbour and if there is no alternative, consult your solicitor.

Fergus Merriman is a chartered building surveyor and member of SCSI, scsi.ie

Q We are looking at buying a property that has a row of small trees planted along the fence line. They are now 2m high. They are planted in a way that they are growing in to the fence and as the trunks get bigger they will impact upon the fence. They are going to block out a lot of the sunlight during the winter which is frustrating given that this prospective neighbour already has several large trees doing this anyway. What are my rights in this regard?

AThere is no legislation in Ireland that specifically requires property owners to control high hedges or trees, or that provides for a right to sunlight or a view over gardens. If you decide to purchase the property in question you will be substantially dependant on the goodwill and cooperation of your neighbour to limit tree height in the adjoining garden.

I assume the fence you refer to is located along the legal boundary between the properties. You have a right to remove any trees or hedges growing on your side of the legal boundary and also a right to cut, at the boundary line, the overhanging parts of branches. You are obliged to offer to return the branches to your neighbour. It would be advisable prior to purchasing the property to get professional advice to determine where the legal boundary is in order to clarify which side of it the trees belong.

Section 45 of the Land and Conveyancing Law Reform Act 2009 provides a mechanism for property owners to apply to the courts for a Works Order to carry out boundary maintenance work. This includes repair or cutting away, or inspecting a party structure, including hedges, walls, fixtures or drains, in instances where access is required to the neighbouring property but consent for access is denied. If the 2m trees are located on the neighbouring property and their growth is a threat to the fence structure you could consider a Works Order if the neighbour refuses to cooperate in finding a remedy to the situation. You should however, if you purchase, discuss your concerns and try to agree a solution with the neighbour.

The amount of shading from the trees will be dependent on the relative orientation of the garden. It would be prudent to determine its orientation and then, based on this, work out the likely degrees of daytime and seasonal overshadowing.

The average suburban residence has boundaries with three or four adjoining properties. You would be fortunate to have the ideal level of tree heights in all of them.

Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of the Society of Chartered Surveyors Ireland scsi.ie

Q My wife and I have seen some sites we're very keen on in Wicklow. However, I've heard that planning permission in Wicklow is notoriously difficult to obtain. Although we are resident in Wicklow the required seven years, we do not meet the "rural" requirement.

So I have two queries: If we buy a site without FPP already granted, is there any scope for permission being granted even though we don't currently live in a rural location? If we buy a site with FPP already granted, do we still have to meet the criteria?

A Presuming the site is located in a rural area and isn’t zoned with an objective that would allow residential development in principle, an applicant for planning permission must demonstrate that they comply with the rural housing policy set out in the relevant Development Plan. Whilst living within a rural location for a specified period of time is one criteria which may allow a person to comply with the rural housing policy as set out in the Wicklow County Development Plan 2010 – 2016, there are a number of other criteria which a person may seek to rely upon.

The rural housing policy seeks to restrict residential development in rural areas to those who are indigenous to and/or have a bona fide necessity to live in the rural area.

Objective RH14 of the County Development Plan states that residential development will be considered in the countryside only when it is for the provision of a necessary dwelling and falls within one of 16 categories. Such categories effectively seek to restrict new residential development to persons who live in or can demonstrate a link (eg family members/employment) to the area.

Categories include where a person’s principle occupation is in agriculture or a rural resource-based activity in the area, renovation or conversion of existing dilapidated buildings of substance, an emigrant returning to their local area, or persons who are intrinsically linked to the area. The categories set out at Objective RH14 should be considered in detail.

In the event that a site is purchased with the benefit of planning permission for a rural house, the conditions attached to that planning permission should be reviewed in detail.

The Guidelines for Planning Authorities on Sustainable Residential Development in Rural Areas recommend that where an applicant is granted planning permission for a rural housing proposal on the basis of having complied with the rural housing policy in the relevant Development Plan, the grant of planning permission should make it clear, through the attachment of a condition, that the dwelling shall be occupied for a specified period by the applicant, members of the applicant’s immediate family or by any other person who has similar links.

As such, it would be expected that a site benefitting from planning permission for residential development in a rural area would have an occupancy condition attached. Any proposed occupant of the residential property would need to comply with such a condition.

It is recommended that discussions take place with the local planning authority in respect of compliance with the rural housing policy before the purchase of a site.

John Spain is a chartered planning and development surveyor and is a member of the Society of Chartered Surveyors Ireland scsi.ie

Send your queries to propertyquestions@irishtimes.com or to Property Clinic, The Irish Times, 24-28 Tara Street, Dublin 2. This column is a readers’ service. Advice given is general and individual advice should always be sought