Somerset West and Taunton Council (21 010 626)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 29 Mar 2022

The Ombudsman's final decision:

Summary: Mr and Mrs X complain the Council failed to properly consider a planning application for floodlighting to a tennis court and will suffer from excessive levels of light intrusion and glare. We have found fault by the Council in its decision making process but consider the agreed action of an apology, £250 and an assessment of the impact of the floodlighting with any necessary mitigation is enough to provide a suitable remedy.

The complaint

  1. The complainants, whom I shall refer to as Mr and Mrs X, complain the Council failed to properly consider a planning application for floodlighting to a tennis court. In particular, Mr and Mrs X complain the Council treated the application differently to a previous application and did not meet its own validation requirements as it did not require a lighting assessment including a light spill diagram. Mr and Mrs X also say the Council did not obtain comments from its environmental health department or properly assess the impact of the proposals on her residential amenity.
  2. Mr and Mrs X say because of the Council’s fault they will suffer from excessive levels of light intrusion and glare.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. 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

  1. I read the papers provided by Mr and Mrs X. I have considered some information from the Council and provided a copy of this to Mr and Mrs X. I have explained my draft decision to Mr and Mrs X and the Council and considered the comments received before reaching my final decision.

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What I found

Key events

  1. There were previous planning applications for floodlighting at a tennis club next to Mr and Mrs X’s property.
  2. In 2010 there was an application for floodlights to courts 2 and 4 but there was an objection supported by Environmental Health about the inclusion of floodlights to court 4. This resulted in the application being amended to remove floodlighting to court 4. The report to the Planning Committee at the time provided the reason for Environmental Health’s objection to floodlighting court 4 as being the close proximity of houses to this particular court at 8 metres and 12-15 metres and despite some hedging that light spillage was likely to be greater than set out in the submitted documents as the houses were lower than the court. The report also highlighted guidance published by the Institution of Lighting Engineers that stated levels of illuminance should not exceed 10 lux through the windows of nearby houses and the information provided with the application showed this level would be exceeded for the proposed lights. Environmental Health considered floodlighting to court 2 was acceptable subject to condition (a restriction on hours of use and that light levels should not exceed the lux levels indicated in the supporting documents). This permission was not implemented.
  3. In 2016 there was an application was for floodlighting to court 2 only and Environmental Health noted its previous comments and sought the same condition on use and noted the scheme should comply with the Institution of Lighting Engineers Guidance Note on Light Pollution 2005 and should be designed for the minimum light needed to minimise potential pollution from glare and spillage. The case officer noted the nearest residential properties to court 2 were 18 to 20 metres and there was some screening from trees and outbuildings. This permission was implemented.
  4. The Council received a planning application in August 2020 for floodlighting to court 4 at the tennis club. This is the application that is the subject of Mr and Mrs X’s complaint to the Ombudsman.
  5. The Council’s Local Validation Checklist valid at the time of the 2020 application was dated 2013. This required a lighting assessment for all applications including or for floodlighting. The assessment had to include a layout plan with beam orientation and a schedule of the equipment in the design as well as the expected level of luminance and glare. It went on to say a light contour diagram with projected lux levels was required when the proposal related to an area such as a sports pitch.
  6. The 2020 application did not contain all the information set out in the Council’s validation document above. The Council validated the application in December.
  7. The Council says it was not in a position to require strict adherence to its 2013 checklist as this was significantly out of date in 2020 when this application was validated. The Council updated its validation requirements in October 2021.
  8. The Council’s current validation document sets out that all applications including or for floodlighting or a significant amount of external lighting must have a lighting assessment. This should provide details of external lighting and the proposed hours when the lighting would be switched on. The details should include a layout plan with beam orientation and a schedule of the equipment in the design plus the expected level of luminance and glare. Where the proposal involves installation of floodlights for an area such as a sports pitch the details should include a light contour diagram based on a layout of the proposed facility in its context and showing projected lux levels including backlight which where there are differences in ground levels is to be superimposed on a topographical survey of the site and its immediate environs.
  9. Despite the absence of the above information, the Council considered there was enough information to validate the application. The case officer subsequently required additional information including a layout plan with beam orientation and a schedule of the equipment in the design as well as the expected level of luminance and glare to fully assess the application. The Council received written confirmation from the applicants that the floodlights would be fully hooded with directional reflectors and single Xon bulbs and a submission of the manufacturer’s specifications which showed the suitability of the product for use in tennis courts in proximity to residential properties. The Council says these additional submissions allowed it to assess the impact of the proposals on nearby residents. However, nearby residents do not accept the Council’s position. They have noted the applicant did not provide figures or calculations to show the predicated levels of luminance and glare or that the Institute of Lighting Professionals (ILP) guidelines would be met at this location. There was also no calculation which included both the amount of light emitted from the floodlights with the crucial factor of distance to nearby properties.
  10. The Council highlights that it may refuse an application on the grounds of insufficient information and considers this is likely to have been the outcome here if the additional information had not been provided.
  11. The case officer’s report provides details of the application and surrounding area including that it is a predominantly residential area and the site itself was surrounded by residential properties. The report sets out that the tennis club had four courts and that three of these were already floodlit. The report listed the relevant planning history which included previous applications for floodlighting which had been granted.
  12. The report noted the Council’s environmental health team had been consulted but that no comments had been received. The Council says Environmental Health do not always respond to general planning consultations due to a shortage of staff and the need to prioritise statutory work. However, where comments are required from Environmental Health, the Council says the case officer will ensure these are received.
  13. The report also provided a summary of the representations received. These included:
  • existing floodlights on three courts when all lit were very bright
  • a further six lights would make it more intrusive
  • adjacent properties impacted by light and noise
  • not reasonable or necessary and will have negative impact
  • fourth court excessive so close to boundary
  • no shielding from floodlights
  • nuisance to neighbours reason previous application in 2010 withdrawn
  • negative impact on environment and mental health of nearby residents
  1. The report provided details of the relevant policies and material planning considerations and noted the main consideration was the impact on residential amenity. The report goes on to note the proposed floodlighting was for a court closer to properties on Mr and Mrs X’s street and that these properties had shorter gardens than properties adjacent to the other courts. The report explained the proposed floodlighting would be about 7 metres from the rear of the nearest properties. The report noted information from the applicant which claimed there was minimal light spill to the rear of the floodlights and a condition had been included to restrict the hours of use. The report also considered in relation to the objections received about both noise and light that the floodlighting of the additional court would not significantly exacerbate the existing situation of three floodlit courts.
  2. Residents provided the Council with calculations to show the impact of the floodlighting of court 4 would significantly exacerbate the existing situation and that the light spill from this court would be 10 times greater than from court 3.
  3. The Council granted planning permission in February 2021 subject to conditions included a restriction on the hours of use to 4pm to 9pm.
  4. During subsequent complaint correspondence, the apparent different treatment of another application for floodlighting for a multi-use games area was raised as the Council had required full details as set out in its validation requirements. The Council confirmed the decision to approve the multi-use games area application highlighted by the complainants was made on the basis of the information supplied with the application by the applicant at the time of its submission. The Council did not seek further information for the multi-use games area application but did so for the application the subject of this complaint although not at the validation stage.
  5. As part of my investigation, I asked the Council to arrange for Environmental Health to provide its comments on the most recent application based on the submissions at the time. Environmental Health noted the application did include some information about the proposed lighting but that it would have wanted the applicant to provide a lighting impact report, including plans, to show the level of lighting and in particular any overspill onto nearby residential premises. This would then have been compared to the relevant guidance and criteria (for example, the Institute of Lighting Professionals Guidance) to assess whether or not the lighting could unreasonably affect the amenity of nearby residents.

My consideration

  1. Based on the information provided, I am not persuaded the Council was prevented from seeking all the information set out in its Local Validation Checklist in place at the time of the 2020 application. I note the applicant did provide further information when requested. In any event, it was fault for the Council to have a validation checklist so out of date it considered it could not be properly applied.
  2. I also note the current validation document still includes the requirement for a light contour diagram for this type of application. It says this should be based on a layout of the proposed facility in its context and show projected lux levels including backlight which (where there are differences in ground levels) is to be superimposed on a topographical survey of the site and its immediate environs. It is clear the Council considers this information to be important but it was not part of the 2020 application and so could not form part of its consideration of the proposals.
  3. I also consider the Council should have ensured it obtained up to date comments from Environmental Health in the light of its comments on the previous applications. In the light of the particular planning history here, I consider the failure to do so constitutes fault. I am particularly concerned given the views previously expressed by Environmental Health about the impact of floodlighting to court 4 given the closer proximity of houses to this court and that light spillage was likely be greater than set out in the documentation as the houses were lower than the court.
  4. I am satisfied the above fault has caused Mr and Mrs X an injustice both in terms of her time and trouble in pursuing the matter and her uncertainty about the outcome of the planning process.

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Agreed action

  1. The Council will take the following action to provide a remedy to Mr and Mrs X:
      1. write to Mr and Mrs X to apologise for the failures in the way it considered this planning application within one month of my final decision;
      2. pay Mr and Mrs X £250 for their time, trouble and uncertainty within one month of my final decision;
      3. use its best efforts to obtain the further information from the applicant set out in its validation document including the expected level of luminance and glare and detailed light contour diagram showing projected lux levels including backlight taking into account the distances and differences in ground levels for review and assessment by Environmental Health about the acceptability or otherwise of the proposals within three months of my final decision;
      4. if the Council is unsuccessful in obtaining the additional information from the applicant, it should arrange its own assessment of the relevant floodlighting within three months of it being implemented against the ILP guidance and criteria to establish if there is an unacceptable impact on the residential amenity of Mr and Mrs X; and
      5. if the additional information from the applicant at (c) above or the Council’s own assessment at (d) above identifies an unacceptable impact from the new floodlighting, the Council should use its best efforts with the developer to mitigate the impact to an acceptable level or issue an abatement notice if a statutory nuisance exists or is likely to exist within three months of the lighting being established.

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Final decision

  1. I have completed my investigation as I have found evidence of fault but consider the agreed actions above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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