Dear Hugo
Thank you for instructing us to advise you on whether the Clean Air Act 1993 (the “Act”) might provide options for reducing coal burning in Smokey North, in light of concerns relating to the respiratory issues that are arising in young children in connection with smoke.
In summary, the Secretary of State has the power to require the local authority to implement a smoke control order, and would likely do so in your circumstances for the reasons set out below.
Local authority powers
Section 18 of the Act empowers a local authority to designate any part of its borough as a smoke control area, and this would include a specific town such as Smokey North. This would be achieved by the local authority making a “smoke control order”, which can specifically target certain types of buildings, fire places and boilers. However, such orders are within a local authority’s discretion, meaning that they can refuse to take such action (at least in the first instance).
Secretary of State’s powers
Section 19 of the Act affords the Secretary of State the power to require the local authority to exercise its powers under section 18, if they are satisfied that:
Given the support provided by local paediatricians for the residents’ concerns, it is likely that the Secretary of State would agree that a smoke control order would provide a practical and convenient (i.e. expedient) solution for reducing (i.e. abating) smoke-related air pollution in the area. Moreover, as the local authority has taken no action to date, it is also likely that the Secretary of State would be satisfied that the local authority has not sufficiently exercised its powers under section 18 of the Act to reduce the pollution.
Next steps
If the Secretary of State agrees with the above analysis, they can direct the local authority to submit one or more proposals for making smoke control orders, which the Secretary of State may reject or approve. Section 19 of the Act affords the local authority up to 6 months to submit these initial proposals.
If the local authority fails to comply with this direction, or submits a proposal with which the Secretary of State disagrees, the Secretary of State may then mandate that the local authority take specific actions under the Act. This could include prohibiting coal burning in Smokey North. Note however that this is all still within the discretion of the Secretary of State.
Conclusion
To summarise, the Secretary of State has the power to require the local authority to declare Smokey North a smoke control area. This would involve the local authority issuing a smoke control order, which could alleviate residents’ concerns by restricting coal burning in the area. However, this process could take many months (if not years), and would still be subject to the discretion of the Secretary of State.
If you would like to discuss any of the above in further detail, please do not hesitate to get in touch.
Yours sincerely
Your Lawyer
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