Smoke control area guidance for local authorities: creating, varying, or revoking a smoke control order

You can create a smoke control order in your area, which will mean that people and businesses must not:

• emit smoke from a chimney of a building. This includes outdoor buildings that have a chimney, such as summerhouses;buy or sell controlled (unauthorised) solid fuel for use in a building, fireplace, fixed boiler or industrial plant to which a smoke control area applies, unless it’s used in an exempt appliance. A list of exempt appliances for use in Wales can be found here: Exempt Appliances – Clean Air Act Data Entry System. You must only use the types of fuel that the manufacturer says can be used in the appliance. 

For further information on smoke control area enforcement, please visit Smoke control area guidance for local authorities: civil sanctions factsheet.

A list of the approved fuels for use in a smoke control area can be found here: Authorised/Certified Fuels – Clean Air Act Data Entry System

A smoke control order may be revoked or varied by a subsequent order.

You can vary an existing smoke control order in your area by a subsequent order, for example, if you wish to:

• change the smoke control area boundaries
• exempt certain buildings, fireplaces, or classes of building or fireplace, or vary any existing exemptions.

You can also revoke your smoke control order by a subsequent order. 

The procedure for making a smoke control order is set out in Schedule 1 to the Clean Air Act 1993.

Before making a smoke control order, it is a legal requirement to publish a notice in the London Gazette and at least once in each of two consecutive weeks in a local newspaper. 

It is also a legal requirement to post the notice for a period of not less than six weeks. Throughout the consultation period you must keep copies of the notice posted in several places in the relevant area to ensure people who will be affected are aware of the proposal. Examples are doctors’ surgeries, leisure centres, libraries, etc.  Additionally, the notice should be published on the local authority’s website if it has one.

The notice must:

• state that you propose to establish a smoke control order, and explain what this means for residents and businesses;
• specify a place in the relevant area where a copy of the order and of any map or plan can be reviewed by any person free of charge at all reasonable times for no less than six weeks from the date of the last publication of the notice; and
• state that in that period any person who will be affected can object by writing to the local authority.

You must consider any objections before bringing your proposal into effect (see below) and the order must come into effect no less than six months after it is made. You can delay the coming into effect of your order by publishing a notice in the London Gazette and at least once in each of two consecutive weeks in a newspaper circulating in the relevant area. 

When you have made the order, you must inform the Welsh Ministers and provide the date on which the order is to come, or came, into operation. The order will then be added to DataMapWales (this final step is not a legal requirement).

To make an order varying or revoking a smoke control order that was made on or after 13 November 1980, you must follow the same steps as for creating a new order (see above) as set out in Schedule 1 to the Clean Air Act 1993[1].

If the only provision is to vary an existing order to exempt the following from your smoke control area rules:

• specific buildings or types of buildings
• specific fireplaces or types of fireplaces 

then it can come into effect on or at any time after the date it is made.

If the order makes any other variation or revocation, the smoke control order must come into effect no less than six months after it is made. 

All other steps, as indicated in ‘Creating a smoke control order’ must be taken.

The procedure is slightly different for varying or revoking a smoke control order that was made before 13 November 1980.  In this case, Part 3 of Schedule 5 to the Clean Air Act 1993 applies.

You must follow the same steps as for creating a new order (see above) and in addition, the order varying or revoking a smoke control order made before 13 November 1980 can only take effect after it has been confirmed by the Welsh Ministers. Any objections must be directed to the Welsh Ministers (see below for objections).

If you wish to vary or revoke a smoke control order created before 13 November 1980, you must first make an order to that effect, and then publish a notice in the London Gazette and at least once in each of two consecutive weeks in a local newspaper. The notice must:

• state that you have made an order varying or revoking a smoke control order, which will take effect if confirmed by the Welsh Ministers, and explain what this means for residents and businesses
• specify a place in the relevant area where a copy of the order, and of any map or plan referred to in it, can be inspected by any person free of charge at all reasonable times for no less than six weeks from the date of the last publication of the notice. Examples are doctors’ surgeries, leisure centres, libraries, etc; and
• state that in that period any person who will be affected can object to the confirmation of the order by writing to the Welsh Ministers (this differs from orders made on or after 13 November 1980)

It is also a legal requirement to publish the notice for a period of not less than six weeks. The most appropriate place may be the local authority’s website if it has one or in public places such as doctors’ surgeries, leisure centres, libraries, etc.

Please inform the Welsh Ministers in advance of your intent to vary or revoke an order made before 13 November 1980, so they can be prepared for any objections. 

Your letter/email should include the following information: 

• a statement confirming that the procedure for varying or revoking a smoke control order has been carried out in accordance with the requirements of the Clean Air Act 1993
• a copy of the notice(s); and
• details of where and when the notices were published

Once the Welsh Ministers have received this information and if no objections are made, or if every objection made is withdrawn, the Welsh Ministers may confirm the order in writing within 28 days, either with or without modifications. These 28 days commence once the period of not less than six weeks from the date of the last publication of the notice has expired. (See below for objections.)

An order can come into effect on or at any time after the date it is confirmed by the Welsh Ministers, if the only provision is to vary an existing order to exempt the following from your smoke control area rules:

• specific buildings or types of buildings
• specific fireplaces or types of fireplaces.

An order making any other variation to, or revoking, a smoke control order must come into effect no less than six months after it is confirmed.

You will need to write to the Welsh Ministers for consent if you wish to delay the coming into effect of an order for more than 12 months or for periods amounting in all to more than 12 months.

When you have made the order, you must inform the Welsh Ministers and provide the date on which the order is to come, or came, into operation. The order will then be amended or removed from DataMapWales (this final step is not a legal requirement).

When creating, varying or revoking smoke control orders made on or after 13 November 1980, you must provide contact details of how objections can be raised to your local authority when you publish your notice, and each objection must be given consideration before the smoke control order can be made. 

When you have made the order, you must inform the Welsh Ministers and provide the date on which the order is to come, or came, into operation. The order will then be amended or removed from DataMapWales (this final step is not a legal requirement).

When varying or revoking smoke control orders made before 13 November 1980, the rules are different and objections must go direct to the Welsh Ministers.

You must provide contacts details to which objections can be raised to the Welsh Ministers when you publish your notice: 

Email: AirQualityPolicy@gov.wales

Postal address: Air Quality Policy, Welsh Government, Cathays Park, Cardiff, United Kingdom CF10 3NQ 

If no objection is made to the Welsh Ministers within the period of not less than six weeks from the date of the last publication of the notice, or if every objection made is withdrawn, the Welsh Ministers may, if they think fit, confirm the order either with or without modifications. The Welsh Ministers will confirm the order in writing within 28 days, starting from the last day of the period of not less than six weeks from the date of the last publication of the notice.

If any objections are received, the Welsh Ministers will either: 

• arrange for a local inquiry to be held or
• give the objectors an opportunity to make representations in person before an appointed person.

The Welsh Ministers will decide the appropriate course of action, according to the number of objections received. The Welsh Ministers may appoint a person to hold an inquiry which would be subject to the rules regarding witnesses, documents and costs as set out in section 250 of the Local Government Act 1972. 

After considering the objection and the report of the person who held the inquiry or the appointed person, the Welsh Ministers may confirm the order with or without modifications