Nuisance provisions of the Public Health etc (Scotland) Act 2008: guidance

6.0 - LIGHT NUISANCE PROVISIONS

6.1 The new provisions for light nuisance are included in section 110 of the 2008 Act. These controls are implemented by amendment of the 1990 Act. The provisions are as follows:-

110 Artificial light nuisance

(1) Section 79 of the 1990 Act is further amended as follows.

(2) In subsection (1), after paragraph (fb), insert-

"(fba) artificial light emitted from-

(i) premises;

(ii) any stationary object,

so as to be prejudicial to health or a nuisance".

(3) In subsection (2)-

(a) after "(1)(b)" insert ", (fba)";

(b) after "premises" insert "(or, in respect of paragraph (fba)(ii) above, a stationary object located on premises)".

(4) After subsection (5B), insert-

"(5BA) Subsection (1)(fba) above does not apply to artificial light emitted from a lighthouse (within the meaning of Part 8 of the Merchant Shipping Act 1995 (c.21)).".

6.2 It is important to note that these provisions only apply to artificial light and cannot be used in respect of direct or reflected sunlight or moonlight. The intention is to ensure that artificial light from sources such as streetlighting, domestic and commercial security lighting, advertising lighting, car parks, sports stadia, domestic decorative lighting, exterior lighting of buildings, laser shows, sky beams and even temporary works such as roadworks are included where the light is causing nuisance. It is not anticipated that ordinary Christmas lights would engage this provision but they are not specifically excluded. Accordingly, if Christmas lights were substantial enough to cause nuisance, they would be covered by this provision.

6.3 The artificial light pollution provisions go further than those implemented in England and Wales as the provision introduced by the 2008 Act will capture all fixed light installations and stationary objects (other than lighthouses and certain defence and military premises) which cause a nuisance. The regime extends the best practicable means defence to all cases of light nuisance in order to simplify the provisions. Appendix 2 provides additional guidance on the circumstances and controls that should be considered when evaluating best practicable means.

6.4 There is a specific exemption within the light nuisance for lighthouses and further exemptions for premises (or stationary objects on premises) which are occupied on behalf of the Crown or a visiting force for naval, military or air force purposes or for the purposes of the department of the Secretary of State having responsibility for defence.

6.5 Although the question of whether or not a nuisance exists is a matter for the local authority investigating the complaint, the Scottish Government considers that particular regard should be had as to whether or not the light is adversely impacting a person's reasonable use or enjoyment of their property (e.g. light shining directly into their bedroom preventing sleep) rather than the brightness of the light alone.

6.6 As the provisions are new there is little case law on the subject of light nuisance. There was a case where interference by artificial light from a tennis club disturbing the fish in an adjacent river affecting the night-time fishing was determined to be a nuisance in law and the Sheriff granted an interdict against the club (Stonehaven and District Angling Association v Stonehaven Recreation Ground Trustees 1997).

6.7 There was a further case where the council had erected powerful security lights that shone onto a neighbouring property. Complaints to the council were ignored so a claim was brought in the County Court for nuisance. The council was ordered to extinguish the lights until they had been repositioned in such a way that they did not affect the adjacent property as well as being ordered to pay costs and damages (Bonwick v Brighton and Hove Council 2000).

6.8 There are two key factors which a Sheriff is likely to take into account when determining if particular circumstances constitute a nuisance:

• Social utility of Defendant's conduct - The more socially useful the Defendant's conduct the less likely it will rank as a nuisance in law. It is probably true to say that light from factories is less likely to rank as a nuisance than, say, light from advertisements.
• Motive of Defendant - If the defender acts out of spite the court will incline to the view that the state of affairs ranks as a nuisance ( Christie v Davie 1893).

6.9 Artificial light nuisance is not necessarily the same as the term light pollution. Light pollution is often defined as any form of artificial light which shines outside the area it needs to illuminate, including light that is directed above the horizontal into the night sky creating sky glow or which creates a danger by glare. It is quite possible that some instances of light pollution would not be prejudicial to health nor cause a nuisance (as the term is used in the 1990 Act). As light nuisance requires one or both of these factors to be present, the terms are not interchangeable.

6.10 Appendix 2 includes a discussion of some of the key terms used in lighting. It is likely that the majority of nuisance complaints will either be due to excessive levels of illuminance or glare. This is often a result of bad design, operation and installation and is often associated with ineffective and inefficient lighting systems (often involving a significant waste of energy). Efficient and effective lighting installations are essential to help people to see where they are going and bring both personal and property security.

6.11 Lighting installations are capable of design so as to produce minimal impact on the environment. In most cases it is envisaged that simple solutions such as redirection, changing lighting levels or screening will be sufficient to alleviate the nuisance.

6.12 In assessing whether a particular artificial light source is a nuisance it will be necessary to consider the relevant circumstances. It may also be helpful to consider what a reasonable person would find acceptable in those circumstances. For example, many light nuisances could be mitigated by the use of ordinary curtains or blinds. A reasonable person may be content to close their curtains to mitigate artificial light during the hours of darkness. It is unlikely however that a reasonable person would find it acceptable to have to install blackout curtains if this was required to mitigate the effects of the artificial light. It is possible in these circumstances that the light would constitute a nuisance under the 1990 Act. It is important that each case is assessed on its own facts and circumstances.

6.13 There is guidance on parameters for obtrusive lighting formulated by the International Commission on Illumination ( CIE) and Institution of Lighting Engineers ( ILE). This guidance is based on research into individual sensitivity to light that may be of some assistance as a guide to the sensitivity of the 'average person'. These parameters vary depending on whether the installation is in a town or country location and there is a suggested curfew time of 23.00 after which lighting levels should be further restricted. This guidance is detailed in Appendix 2 but it is important to stress that there are no prescribed levels at which artificial light does or does not constitute a statutory nuisance.

6.14 It is sensible for abatement notices to be 'simple', requiring abatement and non-recurrence within a specified timescale. If the abatement notice is too detailed, it could be that alternate methods of compliance are denied and possibly even if the terms of the notice are met, the nuisance may remain unabated.