Light pollution now subject to the criminal law of statutory nuisance

The full text of the Clean Neighbourhoods and Environment Act 2005 is available at the Office of Public Sector Information website.

Authors:
Martin Morgan Taylor, Department of Law, de Montfort University, Leicester
Bob Mizon, Co-ordinator, BAA Campaign for Dark Skies

In the Queen's Speech of November 23rd, 2004, Her Majesty announced that the Government would proceed with the Clean Neighbourhoods and Environment Act, intended to cover a number of issues of increasing public concern. The Act was passed in April 2005. This stems from a chain of events over the last three years: the "Night Blight" initiative of the Campaign to Protect Rural England (CPRE), adding its considerable voice to that of the CfDS; the Science and Technology Select Committee's deliberations on light pollution in 2003; the Office of the Deputy Prime Minister's decision to insert an additional light pollution clause in Planning Policy Statement 23; and DEFRA's consultation paper (2003) on the subject.

The Clean Neighbourhoods and Environment Act 2005 makes light nuisance subject to the same criminal law as noise and smells. It applies to "artificial light emitted from premises so as to be prejudicial to health or a nuisance". (section 102, Clean Neighbourhoods and Environment Act, which amends section 79 of the Environmental Protection Act 1990).

All forms of exterior lighting can, if badly angled, cause two broad types of problem, namely light pollution and light nuisance. Light pollution can be defined as every form of artificial light which shines outside the areas it is intended to illuminate, including light which is directed above the horizontal into the night sky, creating the skyglow which has erased the stars over both urban and rural areas during the last half-century. CPRE figures showed that light pollution increased nationally by 24% between 1993 and 2000 (see the CPRE maps). Bad lighting can also cause glare or other nuisance, for example by shining into bedroom windows. It is this second avenue of nuisance that is legislated for under the new Act. It must be noted that light nuisance is often referred to as "light trespass" in non-legal materials. Of course the distinction between nuisance and trespass is that trespass, in law, requires an intentional physical intrusion, and light has not been tested under the law of trespass.

On the face of it, the new law is welcome news for the thousands of sufferers of light nuisance. However, the Act provides for major exclusions listed in section 102(4), which exempts a wide range of public transport buildings (airports, harbour, railway or tram premises, bus stations, public service/goods vehicle operating centres), as well as lighthouses and prisons. Sports facilities are not excluded, however. Nuisance floodlights from neighbours are now most definitely covered. However, there has been confusion as to whether street lighting (a significant source of light nuisance) is covered. DEFRA certainly intended to exclude street lighting from the new law's remit (Full Regulatory Impact Assessment of the Clean Neighbourhoods and Environment Bill, DEFRA, December, 2004 p. 67). Even so, the Daily Telegraph considered that street lighting would be covered (Switch That Light off or Face a Fine, Charles Clover, Daily Telegraph, 9th December 2004, p1.) Moreover, a member of DEFRA's bill team remarked "(a) nuisance can also only be caused by the emission of light from premises, and will therefore only apply to street lighting in exceptional circumstances." (House of Commons Library Research Paper 05/01, p. 68, from personal communication, Wildy, DEFRA Bill Team, 21 December 2004),

The Minister of State, Alun Michael, commented on the unsuccessful amendment 57, tabled expressly to include street lighting in Committee:
"Rather than giving local authorities the theoretical ability to issue abatement notices on themselves, it is better to deal with light pollution from street lighting by other means. Modern lighting design can already provide street lighting that does not waste energy and directs light only where it is wanted. That is used increasingly when lighting is replaced and is common for new lighting schemes." (Alun Michael, Standing Committee G 1, Feb 05, FN 42.)

However, local authority lighting such as that in car parks will most definitely be covered as "premises", so it is unclear as to why this justification has been used when it does not apply across to board to all local authority lighting. Perhaps the answer is that street lighting continues to be a major source of light pollution and nuisance. This is borne out by the large number of complainants suffering from new higher-powered street lighting. Whilst good schemes may be common, not all new schemes are good ones. The following sentiments of a Leicester resident, though choleric, echo across the country:
"My local council last week installed new street lighting along my road. My front bedroom is now bathed in permanent light and the shadows cast by my driveway gate reach the back of the house with light right into my back garden! I'm going to write to the council ... though I doubt whether it will achieve anything, as councils these days seem to be able to do anything they like with MY money, with no accountability".

The statutory definition does not expressly include streetlights, but neither does it expressly exclude such lighting. It is possible that a court may deem such lights to be covered, however, the path to such a judgment would be subject to a long and expensive appeal as to whether street lighting amounts to "premises".

The provisions are further diluted by the availability of the defence of "best practical means" to light emitted from "industrial, trade or business premises, or "the purpose only of illuminating an outdoor relevant sports facility". (Section 103 (2 b) inserting a new section 80(8) (as amended) to the Environmental Protection Act 1990.) This archaic phrase means that the utility of such lighting trumps the nuisance if, and only if, all reasonable steps have been taken to abate it. This will involve consideration of location and the cost involved in reducing the nuisance. However, the question is, of course, where the line will be drawn in practice.

The result is that all consumer lighting is covered, but the inclusion of street lighting is dubious, and there is a general defence open to all business premises and sports facilities.

Complainants need to report the lighting to their local authority~Rs Environmental Health Department, who will then have the same powers as for other statutory nuisances given under section 80, Environmental Protection Act 1990. That is, to issue an abatement notice, but the person served with the notice may appeal to the Magistrates' Court within 21 days (section 80(3)). Failure to comply renders a consumer party liable to a fine of £5,000, or a business party £20,000 (section 80 (5&6)). However, injured parties may take proceedings themselves in the Magistrates~R Court under section 82, with similar penalties for non-compliance with an abatement order.

In the words of DEFRA, the new law "provides a first step towards reducing light pollution, although the Act could not possibly have dealt with all sources of light pollution. The (Act) is designed primarily to give local authorities new powers to deal with anti-social behaviour that affects the local environment, and a new licensing scheme for lighting, for example, would have been out of place in this particular piece of legislation" (private correspondence from Jon Lartice, DEFRA. Department for Environment, Food & Rural Affairs, Nobel House, 17 Smith Square, London SW1P 3JR).

This is an important step in what has been a long and arduous campaign, and is of great interest and utility to anyone concerned about an eventual environmentally sound lighting policy in the UK. However, it is not a "quick fix" for the problems caused by misdirected light, whether here below or in the night sky. The next steps for CfDS will be:

1. to target vigorously the kind of over-bright lighting which causes much of these problems: for example, the typical 500-Watt domestic "security" light, half as bright as the UK's brightest lighthouse, the Longstone;
2. to press for a coherent Government policy specifically including the night sky as part of the environment which DEFRA is charged to protect;
3. to continue to educate all concerned (the public, retailers, manufacturers and decision-makers) about the need to save energy and money while helping the environment through sane lighting practices.