Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I ask if EH have given any reasons for their assessment that the light is not a nuisance in their view please?
They have said that it does not consider it to be a statutory nuisance as it is not severe. Copy of email sent:
To reiterate, what I explained to you during my visits, in assessing light as a statutory nuisance, I am looking for there to be a severe material effect at your property, due to the lighting and must consider whether the “average person” would consider the effect of the lighting at their property to be entirely unreasonable. I am aware that you would prefer to sleep with your bedroom curtains open and of course you are free to sleep with the curtains open if you wish, however when I am asked to assess a light complaint in terms of statutory nuisance I have to take into account that an “average person” (in terms of the legislation) would most probably have their bedroom curtains closed, at night.
Thanks. The officer is not applying the correct test if he will only consider a light nuisance that is severe. That is not what is required to establish statutory nuisance. The test for what constitutes a nuisance under the Environmental Protection Act is the same as a common law test, namely whether the act of complained of "…is an inconvenience materially interfering with the ordinary physical comfort of human existence". In addition to this, the reasonableness of the act or omission complained of, must be determined by factors that include the motive, duration, intensity and time of offending activity, sensitivity of the complainant and nature of the locality.
However what he goes on to say after using the word severe is largely correct.
We have always slept with our curtains open but now have to close them and this light spills aound the curtians. We would have to have blackout blinds fitted to stop this coming in. I have further advise EH and still no action as although he agrees that the light is a problem it is not severe enough to enforce a notice
In order to establish that the light is a nuisance you need to be able to demonstrate that the light causes a substantial interference with your use and enjoyment of your property - here sleeping in your bedroom
Generally it would not be reasonable to expect pitch blackness outside your bedroom. You would need to be able to show that the light is shining at your window sibstantially or is otherwise reflecting into your window sufficiently to cause an unreasonable level of light beyond what one might expect from a nearby streetlight in order to demonstrate a nuisance is being caused. If you believe you can demonstrate this then if the council will not take action themselve it is perfectly possible for you to take steps yourself.
You can seek an application for injunctive relief against the neighbour in the County Court. If you decide to deal with the matter yourself through the County Courts, you will need to consider first serving a notice on your neighbour of the statutory nuisance they are causing and ask them to cease and desist within say five days notice failing which you reserve your right to apply for injunctive relief together with costs the County Court for statutory nuisance together with damages for loss of amenity of your land for the period in question
in order to do so, you will need to complete form N16A
I have taken pictures of the light and how it shines into my home, would this be suficent. I realise that I am not entitled to toal darkness, but would like to not have a light shining into the front of my home
The courts apply the same test the councils must use though here it would be a judge to decide rather than a council officer. Remember that a judge cannot make allowances of any sensivitivity to light - the test is the ordinary person. Accordingly it follows that no allowance would be made for sleeping with curtains open at night but rather the test would be based on curtains being closed unfortuately.
Yes photos are very helpful as well as statements from you and any partner. In addition observations on practical measures the neighbour could take to take account of your concerns and whether there are any justificable reasons for the light - e.g. could the angle the light differently or place it in an other angle or use a lower wattage or is it needed at all.
We now sleep with the curtains closed, but are unable to stop the light spilling into the room without fitting blinds. Is this something that i would find difficult to persue through the courts?
No it is something that you can quite confidently pursue yourself and it may be that the business will back down rather than risk a court application if there is a practical measure you can agree. The application can be made using the above form together with evidence and your statements. You must first write to your neighbour as above giving them a final opportunity to take steps and you may suggest steps that may allow you to resolve your difficutlies amicably. Business are ultimately interested typically in making money and if there are simple steps that they can take it is likely they will prefer this to defending an injunctive relief claim however there is no way to be sure. In addition of course it has to be said that a judges decision will be to some extent subjective in that it will turn on whether he feels the light is in his view unreasonable in terms of interference with your property.
However if you believe the light would be unreasonable to the "average person" and you are not being overly sensitive to the issue then you have the basis of a claim.
Is there anything above I can clarify for you?
Thank You for your help
A pleasure. I hope you are able to achieve a workable resolution. If I can assist any further as the situation develops please do not hesitate to revert to me
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