R (Broxbourne Borough Council) v North and East Hertfordshire Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 03 April 2009 |
| Neutral Citation | [2009] EWHC 695 (Admin) |
| Docket Number | Case No: CO/6010/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 April 2009 |
[2009] EWHC 695 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before : MR JUSTICE MUNBY
Case No: CO/6010/2008
Mr Alex Goodman (instructed by Gavin Miles, Head of Legal Services) for the Claimant
The Defendant and the Interested Party were neither present nor represented
Hearing date: 20 March 2009
Mr Justice Munby :
Mr Alex Goodman applies on behalf of Broxbourne Borough Council (“the Council”) for judicial review of decisions of justices (“the Justices”) sitting at North and East Hertfordshire Magistrates' Court on 29 April 2008 and 5 November 2008. The application succeeds. Both decisions must be quashed.
The Justices were exercising their civil jurisdiction, hearing an appeal by the Interested Party against an Abatement Notice served on him by the Council alleging a statutory nuisance by artificial light. The costs of the proceedings to date are out of all proportion to the amounts at stake, for the Interested Party's costs before the Justices were in excess of £13,000 whilst the evidence before them indicated that the nuisance – if such it was – could be abated for an expenditure of no more than about £100. The unhappy consequence of my decision is that yet more money will have to be spent – spent, as we will see, because of serious errors by the Justices – unless the matter can be resolved without recourse to further litigation.
Statutory nuisance – the relevant legal framework
I can take this quite briefly because, as will appear, although this litigation is all about nuisance by light I do not have to decide whether or not there was in fact a nuisance.
Section 79(1)(fb) of the Environmental Protection Act 1990, inserted by section 102 of the Clean Neighbourhoods and Environment Act 2005, provides that:
“artificial light emitted from premises so as to be prejudicial to health or a nuisance”
constitutes a statutory nuisance for the purposes of the 1990 Act. Section 80 of the 1990 Act provides that, subject to a discretion to try and obtain a voluntary abatement of the nuisance, a local authority which is “satisfied” that a statutory nuisance exists “shall” serve an Abatement Notice. Section 80(3) provides for an appeal to a magistrates' court. Section 80(4) makes it a criminal offence to fail to comply, without reasonable excuse, with the requirements of an Abatement Notice.
Whether or not something is a “nuisance” for the purposes of section 79(1)(fb) depends upon the common law. The principles are well known and need no exposition here. It is sufficient to refer, as the Justices were referred, to the speeches of Lord Hoffmann and Lord Millett in Southwark London Borough Council v Tanner [2001] 1 AC 1.
Guidance on sections 101 to 103 of the 2005 Act was published in 2006 by DEFRA, the Department for Environment Food and Rural Affairs: 'Statutory Nuisance from Insects and Artificial Light'. This is a lengthy document. For present purposes, and to indicate the kind of issues which the Justices in this case had to address, it suffices if I refer to only a few passages:
“18 'Nuisance' is not defined in statute, but is rather based on the common law concept of what is to be regarded as an unreasonable interference with someone's use of their own property; … ultimately, it will be for the courts to decide whether a statutory nuisance exists, should an appeal be made against an abatement notice within the 21 day period from its being issued … As for all statutory nuisances, when assessing a case of potential statutory nuisance the Environmental Health Practitioner should take account of a range of factors including:
* Duration
* Frequency
* Impact – i.e. material interference with use of property or personal well-being; …
* Local environment
* Motive – i.e. unreasonable behaviour or normal user
* Sensitivity of the plaintiff – statutory nuisance relies on the concept of the average person, and is not designed to take account of unusual sensibilities.
87 We anticipate that much artificial light nuisance will be caused by excessive levels of illuminance and glare, which is inappropriate to its need and which has been poorly designed, directed, operated and maintained. Simple remedies, such as re-aiming or screening, should be sufficient in many cases and, although light nuisance is not a matter of light levels per se, light meters are available and affordable for taking measurements in order to quantify the scale of the possible nuisance.
93 It is sometimes suggested that a complaint of artificial light nuisance could easily be mitigated by the use of curtains or blinds, even blackout curtains or blinds, by the complainant. It is for the Environmental Health Practitioner to exercise discretion over what is reasonable and what is not. It might be reasonable to expect a complainant to use curtains or blinds of everyday standard if they are bothered by unwanted light in their home. It might not be reasonable to require a complainant to purchase and install blackout hangings which might be expensive, and/or impair that person's enjoyment of his property. Few would wish to have their curtains drawn on a hot summers night. It is not reasonable to leave the solution and cost of abatement to the complainant rather than the perpetrator.
94 Technical parameters on obtrusive lighting, formulated by the International Commission on Illumination (CIE) and Institution of Lighting Engineers (ILE) from research into individual sensitivity to light, may be helpful in considering the level of sensitivity that might be considered that of the 'average person' without unusual sensitivities. These parameters vary depending on whether the installation is in town or country (there are four suggested environmental zones), and there is a suggested curfew time of 23.00 after which lighting levels should be further restricted. However, there are no objective levels at which artificial light does or does not constitute a statutory nuisance.”
That all seems unexceptionable and entirely consistent with the common law approach.
The background
Mr Geoffrey Oliver and Mr Paul Nipper are the occupiers of adjacent premises on the south side of Turners Hill in Cheshunt. Mr Oliver's premises, the Toddbrook Veterinary Centre, are to the east of Mr Nipper's premises, the flat in which he and his partner live. They are separated by a private driveway leading to a car-park at the rear of Mr Oliver's premises, the flank walls of the two properties being some 11 metres apart. The entrance to Mr Oliver's premises is on the western (flank) wall facing Mr Nipper's flat. Attached to the wall immediately to the right of the door and at head height is a light, designed according to Mr Oliver to ensure safe entry to the surgery by his clients in the hours of darkness and also security against burglars. The window of Mr Nipper's bedroom is on the second floor opposite the light on a slight diagonal.
Mr Nipper complained to the Council that the light was on all night and disturbed his and his partner's sleep. He said that he had asked Mr Oliver to turn it off, but it had not been turned off. His complaint was received by the Council on 19 February 2007. One of the Council's Environmental Health Technical Officers, Mr Paul Busz, visited the site to investigate on 31 March 2007 and again on 11 April 2007. On 11 May 2007, a Senior Environmental Health Officer, Ms Barbara Goult, visited the site and made observations of the effect of the light on the interior of Mr Nipper's flat. In the light of subsequent events it is appropriate to set out the account she subsequently gave in her witness statement to the Justices. Mr Nipper showed her his bedroom and:
“explained that the light on the flank wall of the surgery and opposite the bedroom window was on all night and lit the room sufficiently to disturb him and make it difficult to sleep. The window opening in this room was a V shaped recess with two opening casements with clear panes of glass. Each was hung with a wooden slatted Venetian blind. When we arrived the blinds were closed with the slats directed upwards. I asked for the bedroom light to be switched off and the bedroom door to be shut. I observed that the room was illuminated around the window recess and across the ceiling directly above the bed. Light also was reflected off the top of the venation blind top mounting bar. My colleague Mr Ken Read went outside and held a newspaper over the light. This had the effect of removing the illuminated areas around the window and across the ceiling. When he removed the paper these reappeared. I asked the complainant to adjust the blinds so that the slats tipped down. In this position the light was not directed across the ceiling but continued to trespass into the room and continued to illuminate the window recess. The complainant explained he did not use the blinds in this position overnight as they then directed the morning sun at the bed head. In my opinion the light trespass into the bedroom from the external light mounted on the wall of the Toddbrooks veterinary surgery was a statutory nuisance.”
Following a meeting with Mr Oliver on site on 22 May 2007, Mr Busz wrote to him on 23 May 2007 setting out his “recommendations” and making clear that failure to carry them out “will” result in the Council serving a statutory notice under the 1990 Act. Mr Busz returned to the site on 2 July 2007 and noted that the light was still in use.
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