Summary: Ms X complained the Council failed to control light pollution from a development on her property causing harm to her amenity. The Council failed to properly discharge planning conditions concerning lighting at the development. That did not cause Ms X injustice as the Council assessed the impact of the lighting did not unduly affect her amenity, and did not cause her a statutory nuisance.

The complaint

1. Ms X complained the Council failed to control light pollution from a development as required by its planning conditions for that development. She complained it caused unacceptable light pollution, severely affecting her amenity and safety.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’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

5. I spoke to Ms X about her complaint
6. I considered the Council’s planning officer report and asked it questions about its actions regarding enforcement. I considered the officer’s site visit notes.
7. I gave the Council and Ms X the opportunity to comment on my draft decision. I considered Ms X’s comments before making my final decision.

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What I found

Planning permission and enforcement

8. Planning permission is required for the development of land. Permission may be granted subject to conditions relating to the development and use of land.
9. When granting permission, a council can use planning conditions to require a developer to get its approval for particular detailed plans. This could, for example, require the developer to provide details on the type and arrangement of lighting.
10. Once a council decides that a developer has complied with a planning condition, it can discharge that condition. This means the council is satisfied the developer has complied with the condition. Once it has done so the council loses any further control over the matters covered by that condition. It can then only try to influence the developer through negotiation, rather than through enforcement. The council has no power to enforce conditions it has discharged.

Statutory nuisance

11. Councils have powers to investigate and take action against statutory nuisances. These can include artificial light from premises. For the issue to count as a statutory nuisance and for the council to take formal action it must decide whether the light:
• Unreasonably and substantially interferes with the use or enjoyment of a home or other premises
• Injures health or is likely to injure health.

Background

12. Ms X lives near to a former public house site which has been redeveloped as flats in a three-storey block with car parking and associated street lights.
13. The Council gave planning permission for the site’s redevelopment in 2016. Permission was granted subject to various conditions.
14. One condition required the developer to submit an external lighting scheme for approval by the Council. That was to include details about location, height, type and direction of light sources and intensity of illumination. That condition was to “ensure the proposed development will preserve and enhance the visual amenities of the locality”.
15. The Council subsequently discharged this condition. It did so without seeing or asking for a lighting scheme proposal from the developer as the condition required.

Complaint

16. Ms X complained to the Council in 2018 about the impact of lighting from the scheme (now built) on her amenity. She said it was severely affecting her, and the other residents’ safety and amenity.
17. The planning enforcement officer visited the development in October 2018 and assessed the external lighting columns. Their record of the visit showed the officer considered the impact of the new lights was not unduly detrimental to the visual amenity of the local area.
18. Council environmental services officers then visited Ms X’s property to assess the impact of the lighting on her property and whether it was a statutory nuisance. The officer’s note of the visit states “The purpose of our visit was to assess if the lighting in the parking area… was causing a Statutory Nuisance inside [Ms X’s] property”.
19. The environmental services officers said that as the light was not causing a nuisance inside her property (but rather that its glare affected her garden) it could not be a statutory nuisance. They said that as Ms X lived nearest the new development, external lighting was not unduly detrimental to the residential amenity of other local residents. Ms X has told me she is not the nearest property.
20. Later that month the Council told Ms X the developer was ordering rear deflection shrouds for the lights. She said this would not have any impact on her property as she was to the side, rather than behind the lights. She said she understood that the Council and developer had later met to discuss side shrouds but had not heard any more from this.
21. The Council’s reply to Ms X’s complaint:
• Referred to the officer visit and decision the light was not a statutory nuisance
• Explained it had wrongly discharged the planning condition without having any details of external lighting.
• Said a subsequent enforcement investigation found that the police “design out” crime officer thought the lighting was appropriate from a safety perspective.
• It would likely have approved the implemented lighting scheme, had it been submitted and considered before construction, as required by the planning condition.
• It had assessed the implemented lighting scheme and decided it was not unduly detrimental to the residential amenity of local residents.
22. Ms X then complained to the Ombudsman. She said the lighting did not meet secure by design requirements, the lights affected security, caused pollution and distress to her.
23. In early 2019 the Council met with the developer to discuss lighting. The developer said it fitted back shrouds on columns close to boundaries but would not install side shrouds because they would affect lighting levels in the car park.

My findings

24. The Council discharged the planning condition without requiring submission of its lighting scheme, as required by the condition. It therefore lost planning control over that aspect of the development. That meant it could not take enforcement action about the lighting. That was fault.
25. The Council’s planning enforcement officer visited the development and assessed the lighting. They decided the height and design of columns complied with the intended outcome of the condition to preserve and enhance local visual amenity. They specificially considered the impact of the lighting on Ms X’s property and decided it was not “unduly detrimental” to the visual amenity of the local area.
26. Ms X strongly disagreed but there was no fault in how this decision was made. The Council considered the impact of lighting, as constructed, on Ms X and other local residents. Because the Council properly considered the matter I cannot question the decision the officer reached. Therefore, the Council’s fault in losing planning control did not cause Ms X an injustice.
27. The Council’s environmental services officers then considered whether the lighting caused Ms X and other local residents a statutory nuisance and decided that it did not. It did this by visiting and observing the impact of lighting. There was no fault in how the Council made this decision.
28. The Council consulted with the relevant police officer who advised the development satisfied secure by design standards. I cannot investigate the actions or decisions of a police officer. The Council appropriately consulted with the police as required though it should have done so before discharging the condition.

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Final decision

29. I have completed my investigation. There was fault by the Council, but that did not cause Ms X personal injustice.

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Investigator's decision on behalf of the Ombudsman