Great Yarmouth Borough Council (23 014 233)

Category : Environment and regulation > Pollution

Decision : Not upheld

Decision date : 25 Jul 2024

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to follow the recommendations set out in the Ombudsman’s previous investigation. Mr X also complained the Council failed to act in response to the school next to his property installing new floodlights causing a light nuisance. We did not find fault with the Council.

The complaint

  1. Mr X complained the Council failed to follow the recommendations set out in the Local Government and Social Care Ombudsman’s (the Ombudsman’s) previous investigation, closed in January 2023.
  2. Mr X complained because of the Council’s failure, the School has installed a new set of high-powered floodlights next to his home.
  3. Mr X says the Council failed to consider the impact of these floodlights on the bats near his property.
  4. Mr X also says the Council has failed to act in response to the light nuisance caused to his property.
  5. Mr X also complained the Council failed to follow its complaint procedures and has not issued him formal complaint responses under Stage 1, Stage 2 or Stage 3.

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The Ombudsman’s role and powers

  1. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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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What I have and have not investigated

  1. I have not investigated Mr X’s complaint about the Council’s failure to consider the impact on the bats, despite the Ombudsman’s previous findings, through installation of the new floodlights.
  2. This is because of the timing of when the Ombudsman reached its previous decision. The Council granted the planning permission allowing installation of the new floodlights in October 2022. The Ombudsman only made its findings in January 2023. Since the Council had already granted the planning permission before the Ombudsman’s recommendations, this planning permission was not subject to these recommendations.
  3. The recommendations in the January 2023 decision applies for planning applications considered moving forwards but cannot be applied retrospectively.

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How I considered this complaint

  1. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
  2. Mr X and the Council had opportunity to comment on my draft decision before I reached my final decision.

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What I found

Relevant guidance and legislation

Statutory nuisances

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential 'statutory nuisances'.
  2. 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
  3. 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.
  4. 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.
  5. 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.
  6. 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.

Planning Enforcement

  1. Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.
  2. Councils can take enforcement action if they find a developer has breached planning rules. However, councils do not have to take enforcement action just because there has been a breach of planning control.

Background

  1. On 31 May 2022, the Council issued an abatement notice on a school (the School) near Mr X’s property over use of its floodlights.
  2. In June 2022, the School, submitted a planning application to amend the floodlight installation. This planning application included installation of “back-spill” shields, changes to the type of lights installed and an obtrusive light compliance report.
  3. In October 2022, the Council approved the planning application on the condition the School installed the floodlights following the details submitted in the application and obtrusive light compliance report. The Council also applied the planning condition that should light directly spill beyond the area identified in the plans, onto residential properties, the Council would instruct adjustment of the lights.
  4. In January 2023, the Ombudsman completed its previous investigation. The Ombudsman recommended an apology to Mr X, a payment of £650 for his distress and an explanations about how it will complete bat surveys, how it will complete suitable light nuisance investigations and how it keep suitable records.

What happened

  1. On 22 January 2023, the School installed new floodlights following the October 2022 planning permission.
  2. Mr X complained to the Council on 25 January 2023 about the new floodlights. Mr X said the floodlights caused a statutory light nuisance and asked the Council to conduct a light survey or issue an abatement notice on the school.
  3. On 20 February 2023, council officers attended Mr X’s property to witness the light nuisance. The Council arranged for the School to turn the lights on during the officer’s visit so they could witness the lights. The council officer noted they were “able to clearly see lights” in one of the bedrooms and “the light spill” was about the same in another bedroom.
  4. The council officers also visited several other properties on 20 February 2023 and noted they could see lights shining on neighbouring properties to the School’s field.
  5. In March 2023, the Council liaised with the School about the floodlight installation. The School promised to make changes to the light installation. The Council put an independent light assessment on hold until the School had opportunity to amend the installation.
  6. By 21 April 2023, the Council provided the Ombudsman with evidence it had complied with the recommendations from the January 2023 decision.
  7. Following amendments to the installation by the School, the Council sent officers to residential properties impacted by the floodlights again on 2 May 2023. The council officer’s notes from the visit on 2 May 2023 said they considered the light nuisance had reduced and the light levels did not constitute a statutory nuisance. Despite this, a council officer noted concerns that some glare still existed, despite being reduced.
  8. On 11 May 2023, the Council decided to get an independent lighting expert to assess the floodlight installation. The Council started the tendering process and arranged for an independent lighting expert to complete a lighting assessment of the school.
  9. On 27 June 2023, the independent lighting expert completed their assessment and provided their report to the Council. The independent report said:
    • It would consider the light installation in line with the Lighting Professionals guidance notes 01/21 – The Reduction of Obtrusive Lighting.
    • The Council arranged for an independent report following visits by the Council in February 2023 and May 2023.
    • Their assessment showed there was a zero lux spill light on Mr X’s property.
    • Mr X’s property was located in an unlit area so any light in the distance would be considerably more noticeable.
    • The demonstrated values in the calculations and readings taken on the site, are reasonably within the recommended guidelines.
    • Light intrusion to Mr X’s property was not caused by the School’s floodlights.
    • They considered the proposed lighting design has fully met the conditions set out in the planning conditions.
  10. On 5 July 2023, the Council withdrew the abatement notice on the School. The Council also provided a complaint response to Mr X on the same date. The Council said:
    • Following council officers visiting in February 2023 it asked the School to make changes to the floodlights.
    • Following further visits in May 2023, it arranged for an independent lighting expert to assess the floodlights.
    • The independent lighting expert found the School installed the floodlights in line with the planning permission.
    • The independent lighting expert concluded the lighting levels were within recommended levels and any low-level of lighting was not enforceable by the Council.
    • It did not consider a statutory light nuisance existed any more and has removed the abatement notice.
  11. Mr X complained to the Council again on 14 November 2023. Mr X reiterated his concerns about the floodlights causing light intrusion on his home. Mr X disputed the findings of the lighting expert and said this light intrusion caused an impact on local bats nesting.
  12. On 18 January 2024, the Council issued a Stage 2 complaint response. The Council said it had complied with the recommendations from the previous Ombudsman decision. The Council said the recommendations on ecological surveys applied for future planning matters and advised Mr X to complain to the police about a breach of the wildlife and countryside act. The Council said it had fully investigated Mr X’s concerns about the light nuisance from the floodlights and it found no statutory nuisance
  13. Mr X sought consideration of his complaint at Stage 3 of the Council’s complaint process on 26 January 2024.
  14. On 20 February 2024, the Council provided its Stage 3 complaint response. The Council apologised for the delays in issuing the Stage 1 complaint response to Mr X but otherwise upheld its previous findings. The Council said:
    • It had followed correct planning procedures when granting the October 2022 planning application.
    • The October 2022 planning application supersedes all previous planning applications.
    • It had completed various site visits and found no statutory light nuisance.
    • It arranged for an independent expert to assess the installation whose findings supported the Council’s decision that no statutory nuisance existed.
    • It could not justify spending further public money on investigating this matter when it had already reached a conclusive decision.

Analysis

Recommendations from the January 2023 Ombudsman decision

  1. In January 2023, the Council agreed to carry out recommendations in line with the Ombudsman’s decision. The Council provided evidence to the Ombudsman by April 2023 that it had complied with the recommendations detailed in this decision.
  2. Since the Council provided evidence it complied with the recommendations and the Ombudsman was satisfied with the Council’s evidence, I do not find fault with the Council’s actions. As noted in paragraphs 9 to 11, the Ombudsman would only expect the Council to carry out the recommendations for ecological surveys moving forwards and not retrospectively.

Light Nuisance investigation

  1. Deciding 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.
  2. The Council took suitable action in response to Mr X’s complaint in January 2023 to visit local residential properties to witness the light nuisance complained of. The Council liaised with the School to arrange for the lights to be turned on so they could decide the level of nuisance caused by the floodlights. I do not find fault with the Council’s first actions.
  3. The council officers who attended in February 2023 were clear in their notes that light intrusion could be seen in various residential properties, including Mr X’s. The notes were also clear that light spill from the floodlights was more significant than expected. While the council officers did not state they found a statutory light nuisance, the indication from the notes was clear the light was causing an intrusion.
  4. The Council took informal action first to discuss this matter with the School. Since the Council had not decided that it had found a statutory light nuisance, it was entitled to take informal action to try to resolve this matter. I do not find fault with the Council.
  5. Following the School confirming it had made changes to the light installation, the Council arranged council officers to attend Mr X’s property again to decide if a light nuisance continued. The council officers decided on 2 May 2023 they could not witness a statutory light nuisance. This was a decision the council officers were entitled to make as professional opinion and not something the Ombudsman could find fault with.
  6. Despite the decision that no statutory nuisance existed, the council officers did have some concerns over the glare. The Council decided to arrange for an independent light expert to assess the installation. The Council did so to ensure the installation was compliant with the planning permission and to decide if the remaining glare could be a statutory nuisance. The Council took a proportionate action to arrange for an independent assessment and I do not find fault.
  7. The independent assessment confirmed the light produced by the floodlight installation was within the recommended guidelines. The independent assessment advised it did not consider the floodlights caused an intrusion to Mr X’s property.
  8. The Council used the information from the site visit in May 2023 by its council officers and the results of the independent light assessment to decide that no statutory light nuisance existed. The Council confirmed this with Mr X on 5 July 2023. The Council has acted proportionately to investigate Mr X’s concerns and got independent professional opinion. The Council has objectively assessed the light from the floodlights in deciding that no statutory nuisance exists. Since the Council has taken suitable steps to assess the situation and reached a rationalised decision, the Ombudsman cannot dispute this decision. I do not find fault with the Council.

Planning enforcement

  1. When a council is considering a breach of planning enforcement it must look at whether a person has acted in line with the planning permission granted. A council can only take enforcement action if a person has breached the planning conditions.
  2. The Council applied specific planning conditions to the October 2022 planning permission. These conditions said the school must install the floodlights as specified in the planning documents using the agreed on lights and back-spills. The planning documents also outlined the height and positioning of the lights which the School had to adhere to.
  3. The independent lighting report completed in July 2023 confirmed the School had fully complied with the planning conditions and installed the lights as specified in the planning documents. Since the School had acted in line with the planning permission, and conditions, granted, the Council could not take any enforcement action. The Council also used the findings of the lighting expert report to lift the previous abatement notice issued. The Council could not maintain an abatement notice when there is no breach of the planning permission. I do not find fault with the Council.

Complaint handling

  1. Mr X complained the Council failed to issue him with the Stage 1, Stage 2 and Stage 3 complaint responses. The Council has already admitted it delayed in issuing the Stage 1 complaint response to Mr X and apologised for this. I do not consider the Council needs to take further action in this respect.
  2. Mr X has shown he has received all complaint responses from the Council by referencing these contacts in his complaint escalation requests to the Council. The Council has acted suitably in responding to Mr X’s complaints. While Mr X may be dissatisfied with the Council’s decisions in its complaint responses, I do not find fault with it providing the complaint responses to him.

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Final decision

  1. I have completed my investigation as there was no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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