Summary: Mr X complains the Council failed to take appropriate action about a light nuisance originating from floodlights opposite his property. Mr X says he first made the Council aware well before it finally issued an abatement notice. We have concluded our investigation having made a finding of fault by the Council. We found that the Council missed an opportunity to properly investigate matters earlier, and had it done so, it is likely it would have issued an abatement notice sooner and prevented further light intrusion into Mr X’s property. The Council has agreed to our recommendations.

The complaint

1. Mr X complains the Council failed to take timely and appropriate action in response to his complaints about floodlights opposite his property. Mr X says he first made the Council aware of his concerns in September 2020. Mr X says as a result of the Council's inaction, he had been subjected to intrusive light until its removal in April 2022. Mr X would like the Council to apologise, and changes made to their processes to ensure similar events do not occur again.

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The Ombudsman’s role and powers

2. We investigate complaints about 'maladministration' and 'service failure'. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as 'injustice'. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I spoke with Mr X and considered the information he provided. I raised enquiries with the Council and considered the information it provided. I also considered information found on the Council's planning portal from the applicable planning applications. I considered comments made by Mr X and the Council in response to my draft decision.

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What I found

Relevant guidance and legislation

Statutory nuisances

5. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential 'statutory nuisances'.
6. Typical things which may be a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises
7. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.
8. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit monitoring equipment, or undertake site visits. Councils will sometimes offer an 'out-of-hours' service for people to contact if a nuisance occurs outside normal working time.
9. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
10. Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Abatement notices

11. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. The Council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
12. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
13. A person who receives an abatement notice has a right to appeal it in the magistrates' court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Background

14. In July 2005, School A submitted Planning Application A for floodlighting for a synthetic sports pitch. The application was refused in September 2006 but was appealed and planning permission granted in November 2006. Whilst there were other notable conditions to the permission being granted, it was for eight non-LED lights no taller than 15 metres.
15. In March 2013, School A submitted Planning Application B for six floodlight columns and eight floodlight fittings, no taller than 10 metres. Planning Application B was approved in May 2013.
16. In July 2020, School A submitted Planning Application C for a change in the lighting specification to Planning Application B. Planning Application C was approved in September 2020.
17. In October 2020, School A submitted Planning Application D for a change in the lighting specification to Planning Application A. It is not known when Planning Application D was refused but it was appealed, and planning permission granted in April 2022. Whilst there were other notable conditions to the permission being granted, it was for the reduction in height of the lighting poles from 15 metres to 10 metres, to replace the bulbs with energy efficient LED bulbs and to add shielding around the lights.
18. This complaint involves events that occurred during the COVID-19 Pandemic. Councils as a result were heavily impacted, including handling a backlog of complaints and a focus on recovery work following any reprioritisation in response to the COVID-19 Pandemic.

What happened

19. I have included a summary of some of the key events below. This is not intended to be a comprehensive account of everything that took place.
20. In May 2020, School A installed LED bulbs to their floodlight system. The Council says School A did so without obtaining prior planning consent from it.
21. The Council says it received a complaint about the floodlights later in 2020, and so to remedy the issue, it asked School A to submit a variation to Planning Application A.
22. Mr X made representations to the Council in September 2020 regarding Planning Application C. Mr X said that the lights were 'intense' and that it was difficult to be in his kitchen and bedroom as the lights 'dazzled' both he and his wife.
23. Mr X raised further representations to the Council in November 2020 regarding Planning Application D. Mr X said that if the floodlights were used as proposed in the application, there should not be any issues; he acknowledged that issues previously raised about the floodlights regarding light intrusion had since addressed.
24. In October 2020, School A submitted a retrospective application, Planning Application D, which was considered by its Planning Committee. The Planning Committee approved the application in May 2021. The Council did not immediately issue a decision on the application.
25. The Council says its Planning Department received complaints about the floodlights in October 2021 which its Planning Enforcement team investigated. The Planning Enforcement team, upon visit to the site, concluded that the lights were compliant with the planning permission granted and the conditions it had imposed. The Planning Enforcement team said that that the light did not extend beyond the boundary. The Council also says that Environmental Services were asked to undertake a light nuisance investigation but did not so due to service delays in this area as a result of the COVID-19 Pandemic.
26. In March 2022, Mr X submitted a formal complaint to the Council. He complained about intrusive light into his property from floodlights at School A. Mr X complained that the light went beyond what the planning permissions allowed.
27. The Council responded to Mr X to inform him that light that had extended beyond School A's boundary was because of tests undertaken on the lighting system. The Council said that light into Mr X's property was caused by School A attempting to illuminate their whole site for occasional use. The Council says it had informed School A that such incidents were not acceptable.
28. As Planning Application D had yet to be formally decided, the Council informed Mr X that School A would have the option to use the lights in accordance with the forthcoming permissions it intended to grant, or revert to the permissions granted in Planning Application A. The Council informed Mr X that should School A fail to use the lights in accordance with either arrangement, it could proceed with formal planning enforcement action.
29. Later in March 2022, Mr X escalated his complaint to stage 2 of the Council's complaints process. Mr X complained that light intrusion had been ongoing for a significant period and was unhappy with receiving what he alleges was conflicting information from staff at the Council.
30. The Council acknowledged to Mr X that whilst School A had failed to obtain permission from the Council before installing LED-bulbs In May 2020, it had approved Planning Application D that it submitted retrospectively for the changes. The Council acknowledged that whilst it had approved the application, it had yet to issue a formal decision and apologised for any inconvenience this had caused Mr X.
31. Toward the end of April 2022, Mr X escalated his complaint to stage 3 of the Council's complaints process. Mr X reiterated that he was unable to use parts of his home due to the light intrusion. Mr X proposed to the Council that it visit his property to see first-hand the extent of the light intrusion that was impacting his home.
32. Upon receipt of Mr X's stage 3 complaint, the Council's Environmental Service's team undertook a light nuisance investigation where it determined that a statutory nuisance existed. As part of the investigation, it liaised with School A, who agreed that the existing floodlights should be switched off and dismantled. The Council did not immediately issue an abatement notice as it says School A agreed to switch off and dismantle the lights voluntarily.
33. Shortly after, the Council issued its formal decision on Planning Application D.
34. The Council responded to Mr X's complaint in May 2022. The Council advised Mr X that following his stage 3 complaint, it had undertaken a light nuisance investigation and determined that a statutory nuisance existed. The Council apologised to Mr X and awarded an amount of £250 in recognition of the time taken to resolve his complaint.
35. The Council issued an abatement notice to School A at the end of May 2022 with respect to the statutory nuisance it identified.

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Analysis

Should the Council have taken action in September 2020?

36. Mr X first made the Council aware of light intrusion when he submitted representations for Planning Application C in September 2020. Mr X objected to the floodlights, stating that the lights were intruding on his property and making particular rooms unusable. In November 2020, Mr X made further representations regarding Planning Application D, where he acknowledged that the new proposals would be okay, and that issues regarding light intrusion appear to have been addressed.
37. Although Mr X says the Council were aware of his concerns in September 2020, it is clear that it considered his comments within the context they were made. Whilst I acknowledge the Council were aware of Mr X's concerns in September 2020, I have not made a finding of fault by the Council. This is because the representations were considered and responded to through the application assessment and reporting process for each application, and this was the appropriate way to respond to the comments Mr X raised.

Did the Council act when it should have?

38. The Ombudsman's role is to review the way Councils have made their decisions. We may criticise a Council if, for example, it has not followed an appropriate procedure, not taken into account relevant information, or failed to explain properly why it has made a decision.
39. Determining whether something is a statutory nuisance is a matter of professional judgement for qualified Council officers. We would therefore expect that officers assess the nuisance objectively, while bearing in mind the different relevant factors such as timing and duration. To this end, we would generally expect officers to seek to witness the issue first-hand - either in person, or where practical, by using some form of monitoring equipment - before deciding whether it was a statutory nuisance.
40. In this case, during the period I am investigating, it is clear the Council, upon receipt of complaints to its Planning Department in October 2021, visited the site while the floodlights were operating. The Council concluded that the lights were compliant with the planning permission granted and the conditions it had imposed. The Council also concluded that the floodlights did not go beyond the boundary of School A.
41. Whilst the Council concluded the lights were compliant with the planning permission it had granted, this as an investigation alone was not proportionate to the complaints it received about a light nuisance. Although the Council visited the site of the floodlights, it did not visit the properties, including Mr X's, where complaints were made about intrusive light. The Council, by its own admission, considered complaints raised significant enough to warrant a light pollution investigation, but it failed to complete one.
42. The Council says it failed to do so due to service delays in this area as a result of COVID-19 pandemic resource issues, and a misunderstanding that its Planning Department was progressing the issue. The Council acknowledges that a separate investigation should have been completed and said it has reviewed the matter and provided assurances that this would not reoccur going forward.
43. Had the Council undertaken a light pollution investigation as it had intended, it is likely it would have determined a statutory nuisance in October 2021. This is because, as per events set out between paragraphs 24 and 34, there is no record of the floodlights changing between October 2021, to when they were switched off and dismantled in April 2022. I therefore conclude that the Council missed an opportunity to properly investigate and issue an abatement notice in October 2021, and this is fault leading to an injustice.
44. Mr X alleges that he was passed between different staff at the Council regarding his concerns about the light nuisance, but Mr X did not formally raise a complaint with the Council until March 2022. When the Council did consider Mr X's complaint, it failed to conduct a light nuisance investigation until he escalated matters to stage 3 of its complaints process. When responding to Mr X's stage 1 and stage 2 complaint, the Council only provided assurances it had discussed the matter with School A, and that planning permission had been granted. I have therefore made a finding of fault for again failing to properly investigate Mr X's light nuisance complaint when he complained to it in March 2022.
45. The Council awarded Mr X an amount of £250 in recognition of the time taken to resolve his complaint, but I do not consider this fair. Where it is clear that a properly conducted investigation would have led to action to address nuisance sooner, we will usually recommend a payment for loss of amenity in the range of £75 to £350 a month.
46. Taking account of the severity of the loss and the circumstances of the complainant, I have arrived at an amount of £150 a month, for the period covering October 2021 to April 2022. This is because Mr X and his wife are elderly and would have spent a higher portion of their time in the property where they were unable to use some of the rooms. Further, the period in question covered the winter months when the lights would have been most used.

Issuing a decision on Planning Application D

47. The Council acknowledges that it failed to issue a decision on Planning Application D until April 2022, despite approving the application in May 2021. The Council says this was on the instruction of a staff member but has not been able to substantiate why as the staff member no longer works for the Council. Whilst I cannot see that this had a significant impact on Mr X, the Council should ensure that applications are concluded at the earliest convenience, or appropriate records are kept substantiating its decision not to do so.

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Agreed actions

48. To resolve the matter and prevent similar occurrences happening again, the Council has agreed to:
1. Apologise to Mr X for failing to properly investigate the matter and thereby subjecting his property to further avoidable light pollution.
2. Pay Mr X an additional amount of £650, bringing the total award to £900. This is in recognition of the distress and inconvenience caused by ongoing light pollution that the Council could have prevented.
3. Explain what it will do to ensure, where appropriate, complaints about light nuisance are properly investigated.
4. As the Council has been unable to substantiate why it did not issue a decision on Planning Application D until April 2022, it should explain what it will do to ensure appropriate record keeping of its decisions.
49. The Council should complete action a and b within one month of the Ombudsman's final decision, and action c and d within two months of the Ombudsman's final decision.

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Final decision

50. I have concluded my investigation having made a finding of fault. I found that the Council missed an opportunity to properly investigate matters earlier, and had it done so, it is likely it would have issued an abatement notice sooner and prevented further light intrusion into Mr X's property. The Council has agreed to the proposed recommendations.

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Investigator's decision on behalf of the Ombudsman