Summary: Mrs X complained about the Council’s failure to prevent floodlighting intruding on her home and garden and disrupting her and her family’s sleep. We found fault in the Council’s handling of the floodlight scheme near Mrs X’s home. However, we did not find the fault affected the Council’s decision that it could not take planning enforcement action against the floodlighting.

The complaint

1. Mrs X complained about the Council’s handling of a floodlight scheme near her home, which she said breached a planning condition. Mrs X said the floodlights shone into many rooms in her home and the light was visible through drawn curtains, which disrupted sleep. Mrs X wanted the Council to properly consider and deal with the adverse impact of the artificial light on her home and family life.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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 find fault, we must also consider whether that 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)
4. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. 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

6. I:

• considered Mrs X’s written complaint and supporting papers;
• talked to Mrs X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint; and
• gave Mrs X and the Council an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

7. Section 55 of the Town and Country Planning Act 1990, as amended (‘the Act’) defines ‘development’. Section 55 also sets out what is not development under the Act, including:

“…the carrying out for the maintenance, improvement or other alteration of any building of works which…do not materially affect the external appearance of the building…”

The Act says references to a ‘building’ include any structure or erection.

8. Most development needs planning permission from the local council. When granting planning permission, councils often apply conditions to regulate and control the development. The Government’s National Planning Policy Framework (NPPF) says conditions should be kept to a minimum. Conditions should also meet ‘the six tests’ and be: necessary, enforceable, precise, relevant to planning, relevant to the development, and reasonable. Councils must give clear and precise reasons for every condition they apply. This helps developers decide whether a condition is justified on planning grounds as they have legal rights to appeal against conditions.
9. Failure to comply with a planning condition is a breach of planning control. Councils should investigate reported breaches, but enforcement action is discretionary. The NPPF says councils should act proportionately in responding to suspected breaches. So, if councils find a breach, they may decide to take informal action or not to act at all.
10. After the grant of planning permission, developers may want to change their development. If councils consider a change is development and ‘material’, they may ask for a new application. Councils may deal with ‘non-material’ changes informally by letter. There is no legal definition of a ‘non-material’ change. Councils decide, as a matter of fact and degree in each case, whether they find a change non-material.

What happened

11. Over 20 years ago, the Council granted planning permission for development including external floodlights. The Council placed a condition on the planning permission saying, before installing the lights, the developer had to get its approval to a floodlighting plan (‘the Condition’). The Council’s reason for the Condition was, “to protect local amenity interests by ensuring that no light penetrates beyond the site”. The Council now has little information about its approval of a floodlighting plan but, the developer later installed external floodlights on the site.
12. A few years ago, the developer contacted the Council about whether it needed planning permission to replace the floodlights. The Council said the Condition did not refer to a particular specification. So, the planning test was whether the replacement lights would be materially different in appearance to those on the site. The Council recognised the replacements would look different but would probably be smaller, more efficient and might result in less light spill. (Light spill is artificial light that projects into places where it is not wanted.) The Council said it might find planning permission was not needed if the developer provided information to confirm the replacement lights would not affect light outside the site.
13. About a year later, the developer sent the Council details of replacement lights. The developer said it would keep the light columns in their current positions but change the light heads from Halide to LED lights. The developer also provided a technical report about the replacement lights that included information on light spillage.
14. The Council considered the details and, given the technical report, decided the replacement lights were unlikely to result in a materially different level of illumination. So, while the LED light units would look different, as the Council understood there would be no conflict with the Condition reason, it said the developer did not need planning permission.
15. The developer replaced the lights. Mrs X found the lights significantly brighter than before and badly affecting her home and garden. Mrs X contacted the Council and asked it to enforce the Condition so ‘no light penetrated beyond the site’. The Council opened a planning enforcement investigation and contacted the developer.
16. Later, the Council told Mrs X that, unless the new light heads materially changed the external appearance of the floodlighting, they were not subject to planning control. Mrs X asked the Council to explain what it meant by ‘materially change’ and repeated the Condition said light should not penetrate beyond the site. The Council told Mrs X it could only enforce the Condition and not the reason given for it. The Council then confirmed it found no breach of planning control as the replacement lights were not materially different from the old lights.
17. Mrs X complained and, setting out the differences between the old and replacement light heads, said there had been a ‘material change’. The Council again said the replacement lights were not materially different from the old lights. However, it reopened its enforcement investigation and made night-time visits to the site and Mrs X’s home.
18. On visiting the site, the Council did not see light spill beyond the site boundary and the lights nearest Mrs X’s home were not emitting any backwards light. On visiting Mrs X’s home, the Council found lights on the site ‘appeared to give some light intrusion’, which would likely worsen as the night darkened. (Mrs X said, when it visited her home, the Council said the lights were, ‘clearly a problem’.)
19. Meanwhile, the developer made changes to the lights and use of the site. Mrs X told the Council the developer’s actions had not resolved the light problem. The developer told the Council there were no further changes it could make and reminded it that it had said the replacement lights did not need planning permission.
20. The Council sought legal advice. It was told there was no basis for enforcement action for breach of the Condition. But the Condition might be inadequate to mitigate the impact of the floodlighting. However, that was not an enforcement issue, and the developer did not need to satisfy the Condition reason.
21. The Council wrote to the developer and Mrs X telling them it would not take enforcement action. The Council again told Mrs X the replacement lights were not materially different from the old lights and so in line with the planning permission. The Council suggested Mrs X consider making a nuisance claim.
22. The Council also sent Mrs X a final complaint response saying it had negotiated with the developer but could not satisfy the advisory Condition reason. And, on legal advice, could not take enforcement action. The Council signposted Mrs X to the Ombudsman.
23. Mrs X said the Council had not explained why the replacement lights were not ‘materially different’ and did not need planning permission. Mrs X also said the Council had agreed during the site visit that a problem existed, and so it needed to resolve that problem.

Consideration

Introduction

24. We are not an appeal body and do not tell councils what decisions they must make and have no view on whether a decision is ‘good’ or ‘bad’. We consider if there is evidence of fault in how councils reach their decisions. Where we find fault, we consider if it affected the decision and caused significant injustice to the complainant. Without fault, we cannot question a decision however strongly a complainant disagrees with it. (See paragraphs 2 and 3 to this statement.)
25. Here, there was no dispute the replacement lights impacted Mrs X’s home. So, my investigation focused on whether there was fault in how the Council reached its decision that it could not address that impact. In making its decision, the Council had considered whether the replacement lights needed planning permission and if there was a breach of the Condition.

Planning permission

26. When the developer contacted the Council about changing the floodlights, it had to decide whether the proposal was development needing planning permission. The Council considered the original permission, including the Condition, and advised planning permission might not be necessary subject to more detailed proposals (see paragraph 12). These are steps I would expect a council to take in responding to such an enquiry about the need for planning permission.
27. The developer later provided details, and confirmed the only physical change would be to the light heads with the light columns remaining unchanged (see paragraph 13). The details did not include any images of the replacement light heads. The Council took the expected step of considering the details, which included a technical report. The Council understood the technical report showed the replacement lights were unlikely to materially change existing light levels. It also accepted the replacement lights would look different from those on the site. The Council decided, despite their different appearance, as the replacement lights would not conflict with the Condition reason, they did not need planning permission.
28. I found no fault with the Council’s overall approach. But, as it had no image of the replacement lights, I recognised why Mrs X would question its view there was ‘no material change’ to the lighting. The evidence included before and after photographs. These showed clear differences in the appearance of the old and replacement lights. The differences included the lighting unit being visible for the replacement lights while hooded in the old lights.
29. It was for the Council to decide whether, as a matter of law, fact and degree, altering the light heads ‘materially affected’ the external floodlighting and so was ‘development’. However, a small physical change could materially affect the appearance of a building or structure. With no images of the replacement lights, the Council could not properly assess whether the new light heads would materially affect the appearance of the floodlighting. I therefore found the Council’s decision was taken with fault.
30. So, I then considered what, on balance, was most likely to have happened if the Council had decided the replacement lights were development needing planning permission. The lighting columns and their positions remained unchanged. So, on balance, I considered the Council would have dealt with the replacement light heads as a non-material change (see paragraph 10). In deciding permission was not needed, a key consideration for the Council was the technical report. The technical report would also have been key to its consideration of the non-material change. The Council would therefore have reached the same view, that illumination levels would not materially differ. It was therefore more likely than not to have approved the replacements as a non-material change to the floodlighting. Overall and on balance, I therefore found the fault I identified at paragraph 29 did not cause significant injustice as the Council’s decision would be unchanged (see paragraph 3). Mrs X would therefore find herself in the same position living near the replacement lights.

Planning enforcement

31. Unfortunately, the replacement lights did impact Mrs X’s home despite the Council seeing no backwards or spilling light when visiting the site (see paragraph 18).
32. The evidence showed the Council opened an enforcement investigation when Mrs X reported a breach of the Condition. At the enforcement stage, the Council could see the replacement light heads. It again told Mrs X the replacement light heads were not subject to planning control as they did not materially affect the appearance of the floodlights (see paragraph 16).
33. Mrs X asked the Council to explain how it reached this view and pointed to differences in the old and replacement light heads. However, having seen the replacement light heads, it was a matter of planning judgement whether they materially affected the appearance of the original floodlights. While Mrs X may strongly disagree with the Council, it was not for me to arbitrate on differing views that go to the merits of planning proposals and development, including issues of ‘materiality’. The Council was entitled, in considering the overall development, to reach its view the replacement light heads, although of a different design, did not materially affect the appearance of the external floodlighting.
34. However, in response to Mrs X’s complaint about its enforcement decision, the Council reopened its investigation. The further investigation included more contact with both Mrs X and the developer and visits to both Mrs X’s home and the site. During the investigation, the developer adjusted the lights and site activities, although these actions did not resolve Mrs X’s concerns. The Council also sought legal advice and was told it had no basis for taking enforcement action for a breach of the Condition.
35. The Council’s actions were in line with those any council might reasonably be expected to take to investigate an alleged breach of planning control. And, given Mrs X’s concern about non-compliance with the Condition reason, the Council took the added step of seeking legal advice. I therefore found no fault in the Council’s enforcement investigation and so had no grounds to question its resulting decision (see paragraph 2).

The Condition

36. The Council’s legal advice questioned the adequacy of the Condition to deliver its ‘reason’ of effectively mitigating the impact of the floodlights beyond the site. And the impact of the replacement lights on Mrs X’s home lies at the heart of this complaint. With hindsight, to avoid what happened here, the Condition wording needed to be more robust and clearer to ensure the floodlights did not cause unacceptable planning harm outside the site.
37. However, Mrs X did not complain about the Condition itself. And it is more than 20 years since the Council granted the planning permission including the Condition. Too much time has passed for me now to properly and effectively investigate how the Council came to draft and apply the Condition and whether it acted with fault in the 1990s. Even if there was evidence of fault, the Condition would still exist as drafted (see paragraph 11). Any further investigation into the origin and use of the Condition would not therefore lead to a different planning enforcement decision. And the outcome Mrs X seeks, of preventing the floodlights impacting on her home, could not realistically be achieved. (See paragraph 4.)
38. In responding to the Ombudsman, the Council recognised that, by today’s standards, the Condition was not precise (see paragraph 8). The Council provided evidence of planning conditions it currently uses when dealing with ‘light' issues. The Council also said it now reviews planning conditions to ensure they remain in line with current standards and policies. I therefore found no good reason to recommend now any service improvements to the Council about the use of ‘lighting’ planning conditions.

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Final decision

39. I completed my investigation finding the fault I identified did not affect the Council’s planning enforcement decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman