Clause 102 - Statutory nuisance: lighting

Clean Neighbourhoods and Environment Bill – in a Public Bill Committee on 1st February 2005.

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Amendment moved [27 January]: No. 57, in clause 102, page 75, line 2, after 'premises', insert

'or streetlights on public roads or public rights of way'.

_[Miss McIntosh]

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst 8:55 am, 1st February 2005

With this it will be convenient to discuss the following amendments:

No. 58, in clause 102, page 75, line 16, at end insert—

'(j) premises or apparatus used for the provision of electronic communication services.'.

No. 104, in clause 102, page 75, line 16, at end insert—

'(k) a playing field, playing pitch or other outdoor facility used wholly or mainly for sport.'.

No. 117, in clause 102, page 75, line 16, at end insert,

'; that is necessary to meet statutory requirements relating to national security or public safety, provided that reasonable and practicable steps have been taken to minimise light emissions to the minimum necessary to meet those requirements.'.

No. 105, in clause 102, page 75, line 37, at end insert—

'''playing field'' has the meaning given in Article 3 of the Town and Country Planning (General Development Procedure) (Amendment) Order 1996;''playing pitch'' means a delineated area which, together with any run-off area, is 0.4 hectares or more, and which is used for sport;'.

No. 106, in clause 102, page 75, line 49, at end insert—

'''sport'' is designated as any sporting activity which appears on the list maintained by the National Sports Councils of activities recognised by them, as applicable to Schedule 18 to the Finance Act 2002;'.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

May I welcome you back to the Committee, Mr. Forth.

On Thursday the Minister made what he was hoping would be a helpful intervention, which gives me the opportunity to respond in like manner. There is some concern about how the original clause will be amended. The Minister said:

''It is merely that a local authority would be able to treat as a statutory nuisance those particular cases that qualify as a common law nuisance or are prejudicial to health.'' [Official Report, Standing Committee G, 27 January 2005; c. 314.]

He will be aware that there is concern that under subsection (4) there are some extensive, wide exceptions to that form of statutory nuisance that many would like brought within the remit of the clause, including in airports, harbours, railways and transport facilities generally. He may also be aware that another form of statutory nuisance—general   farming practices—is causing great concern. A typical example of that would include, in the view of the National Farmers Union, situations in which a local authority deems that a nuisance is being caused by agricultural activities or farm buildings near a residential area. A case in point would be harvesting at night in good weather in July and August, which are the most intensive times of the year for arable farmers, when they often have a very small window of opportunity. There are a number of instances of statutory nuisance that could fall within the original clause.

In amendments Nos. 104 and 105, we seek to address the matter of an all-weather, all-year-round pitch that is heavily dependent—[Interruption.]

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I am most grateful to the hon. Lady for giving way, because I was waiting for her to come to the next sentence of the paragraph in Hansard from which she quoted. I said:

''I ask her not to suggest that the clause would have an impact on sports facilities—generally, it would not.'' [Official Report, Standing Committee G, 27 January 2005; c. 314.]

That was specific.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

I am most grateful for that. I read that and heard it on the day, and now I hear again what the Minister says. However, the Government, perhaps inadvertently, have set up a hornet's nest and the air is buzzing with concern. In my area, we are fortunate enough to have a limited number of all-weather pitches and sports facilities. In a rural area where transport facilities are not that great and public transport is not as widely available as in urban areas, we are even more dependent on local community football and sports facilities.

I know about and support the Government's campaign to promote fitness and fight rising levels of obesity. The Minister must be aware that approximately 7 million adults and 5 million children participate weekly in football alone. That is not just limited to Sunday morning football. In fact, week-night five-a-side football is growing rapidly as a form of exercise for a vast number of people and that facility may inadvertently be limited by the drift of the clause.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

The hon. Lady says that the air is buzzing with concern. It would be more accurate to say that it is buzzing with misinformation. I have made sure that officials have spoken to organisations such as the Football Association to make sure that they understand that those concerns are misplaced. I hope that she will not add to the mischief and concern by misrepresenting the situation and the impact of the clause.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

I put it to the Minister that his Department did not consult the Football Association, the England and Wales Cricket Board, the Rugby Football Union, the Lawn Tennis Association or other relevant trade associations, or the Central Council of Physical Recreation when formulating and drafting this Bill.  

Photo of Paddy Tipping Paddy Tipping Labour, Sherwood

Will the hon. Lady check her facts? My understanding is that the Department met the FA just last week, and the meeting was satisfactory. The issues were explored, and reassurances were given.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

That makes my point; if the Department met the FA for the first time last week, even though the Bill is in its Committee stage, that speaks for itself.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

No, it does not speak for itself. I do wish that the hon. Lady would stop misrepresenting the situation—inadvertently, I am sure. The fact is that the FA wrote a letter to Members of Parliament, and I immediately acted to make sure that officials met the FA to correct the misapprehensions. I offered to meet the FA personally, should it have any concerns following that meeting. Of course, we consulted the Department for Culture, Media and Sport and Sport England on the measures. The reason why the concerns have not been addressed in meetings is that the bodies will not be affected in the way that the hon. Lady suggests.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

If the Minister is going down that path, can he give the Committee a categoric assurance that the clause will not be interpreted by local authorities or the courts as applying to sports facilities and playing fields? In the spirit of good intentions and co-operation, will the Minister see fit to support amendments Nos. 104 and 105, and will he write into the Bill something to say that such sports facilities and playing fields will not be damaged and affected in the way that they fear? All the bodies to which I referred sought early consultation with the Minister. Perhaps this misunderstanding, as he calls it, would not have arisen if that consultation had taken place at the earliest possible stage.

What possible reason could there be for not writing such an assurance into the Bill? Why rely on departmental guidance that has no statutory basis, is not enforceable and may well lead to an interventionist local authority or housing association targeting sports facilities under the provisions, even though the Minister says that that is not his Department's intention? Surely this is exactly the role that primary legislation should play. It may be for your convenience and that of the Committee, Mr. Forth, if I say now that I wish to press amendments Nos. 104 and 105 to the vote.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

Will you advise me, Mr. Forth? Are we dealing with amendment No. 57 or the whole string of amendments?

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

Thank you for your guidance, Mr. Forth.

Certainly, we support anything that would mitigate a new source of street lighting, which is an enormous cause of nuisance. It pollutes the night sky and creates red glow. Increasingly, good design is reducing that problem.

I referred on Second Reading to my visit to Gatwick airport, which has started to consider the light that it emits. That was a very positive experience because, although in areas such as car parks adequate lighting was needed for people's safety, there was no need for 500,000 neon bulbs across the whole of the airport. Phasing those out and bringing in renewable energy that gave out softer lighting and reduced light pollution was extremely welcome.

We have real problems with light pollution. The National Society for Clean Air and the Campaign to Protect Rural England both support measures to ensure that the places exempted still have to make a reasonable effort to limit light pollution. We need the energy efficiency; a ridiculous amount of energy is burned up by excessive lighting. Artificial lighting is a nuisance, and that needs to be said. However, we ought to make sure that when a statutory undertaking emits a large amount of light, there are codes of practice that it has to adhere to. The list of exemptions could have the perverse effect of implying that the issue does not matter for organisations such as airports or ports and that they can emit however much light they like. The Minister is shaking his head; I look forward to hearing his argument.

We welcome the measures being taken by the Government on light pollution, because it is such a nuisance. We are losing our night skies. In some ways, there do not seem to be the same grounds for exemption for organisations such as airports and ports; they do not have to conform as ordinary citizens have to in managing what they do.

During the Second Reading debate, we talked about freight depots and ports. Poole ferry terminal is visible from 30 miles out into the English channel; the light can even be seen from below the horizon. Why is that necessary? There are areas in which there are considerations of national security and public safety, and they are legitimate concerns. People recognise that security is of paramount importance. However, the Campaign to Protect Rural England has been asking how we can work with the Government. The Campaign for Dark Skies says that we need to recognise that light pollution is taking place.

The clause is important. What would happen in the case of existing sites—trading estates, for example? I used to live near a mini trading estate, with a wood yard and a couple of other things, that was dark at night. This week I have suddenly found that there is a   Renault garage close to my home. It blares light across an area of semi-rural countryside that formerly did not even have street lights. What will happen to existing legislation? Will the Bill give more opportunity for councils to take note of residents' complaints? The residents understood that the Renault garage was coming, but not that there would be a ridiculous amount of light through the evening and from midnight until dawn.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

It is clear that, yet again, I have to steer a careful course between Scylla and Charybdis—I refer to the hon. Members for Vale of York (Miss McIntosh) and for Guildford (Sue Doughty). Between them, they ask me to do more and less. Both requests are, as I hope to persuade the Committee, based on misapprehensions. The exceptions in clause 102(4) refer specifically to areas where safety is a paramount priority for transport, and where movement and safety are at a premium. The two other examples in the list are lighthouses and prisons, and I am sure that the safety considerations necessary for them are obvious to all. We do not want the Bill to be used in such circumstances; the Bill has a very clear focus on local circumstances. The hon. Member for Guildford referred to existing legislation. I will come to that in a moment, because there is a need to consider the interface between the proposals before us and the existing legislation. It may be helpful if I start by setting out the scope of this measure—what it does and does not do.

The clause does not provide local authorities with new general powers to control artificial lighting. Rather, local authorities will be given the ability to treat as a statutory nuisance particular instances of artificial lighting that qualify as a common law nuisance or are prejudicial to health. These terms have been used for many years, and there is extensive case law on their meaning. The need to achieve a reasonable balance between the interests of individuals who are adversely affected by an activity and the need to carry on that activity is integral to the law on statutory nuisance. For artificial lighting, local authorities will need to balance the nuisance caused by particular lights against the need for adequate lighting on, for example, security or safety grounds.

The law on statutory nuisance also contains a specific defence of having used ''best practical means''—I shall refer back to those three words—to prevent or suppress the effects of certain statutory nuisances, particularly those arising on trade, business and industrial premises. Clause 103 deals with the availability of this defence for both artificial lighting and nuisance insects. This provision, in effect, permits an activity that might be otherwise be unreasonable to continue where those who are responsible for it have used the best means available to them to prevent it, or to reduce its impact.

Photo of Paddy Tipping Paddy Tipping Labour, Sherwood

In the case of floodlit sports facilities, is my hon. Friend telling us that if the sports club is using the ''best practical means'' and the latest   technology, then there is no threat whatever? Will he repeat his assurance that he is prepared to meet the FA, and make the position absolutely clear to them? I am sure that there is some mischief-making going on here.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I share my hon. Friend's concern. I was coming to the situation of sports facilities, which is precisely as he has set out. In the light of these points, I do not think that this clause poses any threat to the floodlighting of sports facilities, and in my view amendments Nos. 104, 105 and 106 are unnecessary.

I have indicated, both last week and again today, that I am aware of the Football Association's concerns on this point. My officials had a useful meeting with the FA last week. The FA said that they were most concerned about the effect restrictions on artificial lighting might have on the provision of new floodlit facilities. The planning process for such facilities, however, already takes full account of the impact of artificial lighting, and enabling local authorities to treat artificial lighting as a statutory nuisance will have no implications for the planning process for new facilities.

Let me underline once more the fact that passing this Bill in its current form, which will enable local authorities to treat artificial lighting as a statutory nuisance, will have no implications for the planning processes for new facilities.

While there is a theoretical possibility that a local authority might try to challenge existing floodlighting on the basis that it was a statutory nuisance, in reality this would be highly unlikely. There is a strong public interest in encouraging community football and sports facilities, and any adverse effects of floodlighting on individuals living near a sports ground will need to be balanced against the interests of all those who use that ground. That is already the situation. In most, if not all, cases I would expect the provider of the floodlighting to be able to make use of the ''best practical means'' defence. It is difficult to envisage that those operating a sports ground would deliberately, for example, aim their floodlights at a particular row of properties. That would be the sort of perversity that anybody would want to see dealt with firmly.

In any event, we will make it clear in the guidance that we do not expect floodlit playing fields and other sports facilities to fall foul of the provision in practice.

Photo of Paddy Tipping Paddy Tipping Labour, Sherwood

Is my right hon. Friend willing to discuss the practice guidance with interested bodies? Will he ask his officials to do that?

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs 9:15 am, 1st February 2005

Yes, I can give a cast-iron assurance on that point. I have already said that guidance will be a matter for consultation, but we do not see any problem with it. The target is not that perceived by the hon. Member for Vale of York. There might be occasions when badly sited lights cause unnecessary   hardship to those in the vicinity, but in such cases we would expect the problem to be resolved through discussion between the local authority and those responsible for the lighting.

As for new facilities, I was talking to my right hon. Friend the Minister for Sport and Tourism last week, before we received the letter from the FA. He referred to the way in which technology has moved on. It allows much better targeting of light in new facilities, so that there is not much impact on those in the area and the best possible quality of lighting is provided for those who take part in sporting activities.

For many years before entering Parliament, I spent much time as a youth worker and a councillor, improving and increasing the facilities available in my area, so I am not without knowledge of the discussions that are necessary to provide such facilities. More generally, the guidance will make it clear that the provisions on artificial lighting should be introduced in a reasonable and proportionate way and that every effort must be made to resolve problems by negotiation, with enforcement action taken only as a last resort.

Many of the same arguments apply to amendment No. 58. Like many other industrial facilities, premises or apparatus used for the provision of electronic communication services clearly need adequate lighting for operation and security purposes. The law on statutory nuisance recognised the need for industry to be able to carry out its usual functions, and that is further protected by the defence of ''best practical means''. I shall return to those three important words. For those reasons, it is not necessary to single out communication services for particular protection.

Amendment No. 57, which would extend the provision to apply public nuisance legislation specifically to street lights on public highways, is in a different category. Local authorities are responsible for street lighting and for applying the law on statutory nuisance. 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.

The Government made £300 million available in private finance initiative credits in 2003-04 to help local authorities in England—those outside London—to modernise their street lighting. In London, a further £85 million in PFI credits will be available for street lighting over the next three years. That is additional to support provided through the revenue support grant.

Amendment No. 117 would create ambiguity, which would complicate the provision. For example, what is the minimum amount of light necessary to meet statutory requirements? Most of the exemptions are   for transport facilities and are necessary because we need to put it beyond doubt or further qualification that artificial lighting used at the premises does not qualify as statutory nuisance. Moving vehicles represent a danger to health and safety. Movements are often complex in the sort of facilities referred to under the clause, and lighting outside and at night must be used. Ports and airports have international obligations that require the provision of adequate lighting for safety and security. Moreover, transport tends to operate at all hours and requires essential maintenance at night to ensure that vehicles and the infrastructure are operational during the day.

I appreciate some of the points made by the hon. Member for Guildford about the way in which some transport facilities operate, but those matters are best dealt with elsewhere rather than in the neighbourhood considerations under the Bill.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I am listening carefully to the Minister. He said that such matters are best dealt with elsewhere. How does he suggest they can be dealt with?

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I was about to make the point anticipated by the hon. Lady. The exemptions mean that, for transport facilities, the status quo will apply. Although they will not be subject to the statutory nuisance regime, and so subject to regulation by local authorities under this heading, it will not prevent individuals from taking private nuisance actions in cases in which they feel that artificial lighting is causing them a severe problem. A private action can, for example, be taken by a person whose land adjoins a transport facility from which artificial lighting is

''unduly interfering with that person's comfortable or convenient enjoyment of his own land.''

We often legislate in respect of transport facilities—such as the arrangements that are dealt with in the exceptions—but it is not appropriate to go into the complexities of the arrangements for ports, airports and other transport facilities in this Bill. That is why the measure, which is intended to deal with the local nuisance that was strongly highlighted by our consultation, should be appropriately targeted. The guidance will make the application clear.

In response to the comments of the hon. Member for Vale of York, sometimes it is not appropriate for things to be clarified in the Bill because of the law of unintended consequences. The exceptions that are listed are clear and comprehensive. That is the correct way in which to deal with the matter in the Bill, and I hope that the amendment will be withdrawn.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

I heard the Minister's response with great interest. One issue that we did not discuss, and which might have to be covered at a later stage, is that of nuisance lighting from Christmas tree decorations. That can lead to the very type of vexatious and malicious complaint to which the Minister referred. The official Opposition do not think that it is good enough simply to say that the issue is best dealt with by other means or elsewhere. It is right and proper to state in the Bill exactly how the provisions will apply to utility companies such as British Telecom, to railways and to individuals who might feel that they have cause   for complaint. For all that I am a non-practising advocate, I believe that it is much better for all concerned that the Bill speak for itself. As little as possible should be left to interpretation and guidance.

The Minister is moving in the right direction, but it is not satisfactory that he is leaving the matter to guidance, given that, regrettably, there was not the early and lengthy consultation that many of us would have liked. At a later stage, we will seek clarification on agricultural and horticultural practices. I think that the Minister will agree that they have not been subject to a plethora of complaints. Bearing in mind that we have seen so much success as a result of grants from the Football Foundation—areas such as Poppleton in Vale of York have benefited from football pitches and in other ways—it is incumbent on the Committee to make the Bill as clear as possible.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

The hon. Lady strays into new territory when she refers to Christmas decorations. Perhaps I ought to respond briefly to that point, because it is important to understand the way in which that would be dealt with. If the local authority is satisfied that a statutory light nuisance exists, it will have to issue an abatement order. That will require that nuisance to be abated, prohibited or restricted, and can require that works and steps be undertaken to achieve those ends within a time scale. Christmas lights could be covered in that way, although it is unlikely given their temporary nature.

Again, it is a question of striking a balance between enjoyment given and nuisance created. As in many such instances, judgment has to be used if we are to succeed in protecting the public against a genuine nuisance while avoiding excessive restrictions. That is what is meant by the best possible means. That point also applies to agricultural and horticultural activities: are they undertaken in a way that ignores the interests of those affected—are those responsible being cavalier about the impact on others or even deliberate in those actions—or are the best possible means being used? If it is the latter, agricultural and horticultural activities will be able to continue without impact from this or previous legislation.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

Referring back to our amendment and having listened to the Minister, I seek some clarity. We have no disagreement about the need for safety on industrial and commercial premises and in transport and so on, or about the fact that such places operate 24 hours a day. He referred to the opportunity to take a private action, but with a large installation such as an airport or a ferry terminal, the nuisance may be the totality of the light from sites such as Poole ferry terminal, which has been mentioned.

The cause of the problem can be lights on tall columns, which should be directed more to the area that they are supposed to illuminate but in fact cast light unnecessarily far and wide. Of course one wants safety—that is not disputed—but some areas in a airport, such as sheds, do not need large amounts of light. I have already mentioned car parks. We have   some voluntary agreements, but I am still concerned about how we mitigate the unnecessary light coming from those installations. Although I am minded not to press the amendment, I would do so only following some reassurance from the Minister that everything possible is being done to minimise the pollution from those large installations.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

The hon. Lady puts her point reasonably, but in a way she also answers it. As she says, big transport installations such as ports and airports are not just about the direct light nuisance but about the volume of the activity. However, as she also said—I think that this is another point of agreement—the economic value of those activities, their importance to the infrastructure of the nation and the safety considerations that she acknowledged mean that they are not the intended target in a Bill that concerns local neighbourhood nuisance and the direct impact that I spoke of earlier.

There are issues to be addressed; she is right about that. It is one of the Government's concerns to see technical improvements and the minimisation of the impact of large installations, but that is way beyond what it is possible for us to deal with in this Bill. In the spirit in which the hon. Lady made her comments, I acknowledge that there are issues to be dealt with, but her amendment is not the way to address them.

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 8.

Division number 5 Nimrod Review — Statement — Clause 102 - Statutory nuisance: lighting

Aye: 3 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendment proposed: No. 104, in clause 102, page 75, line 16, at end insert—

'(k) a playing field, playing pitch or other outdoor facility used wholly or mainly for sport.'.—[Miss McIntosh.]

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 8.

Division number 6 Nimrod Review — Statement — Clause 102 - Statutory nuisance: lighting

Aye: 3 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived. 

Amendment proposed: No. 105, in clause 102, page 75, line 37, at end insert—

'''playing field'' has the meaning given in Article 3 of the Town and Country Planning (General Development Procedure) (Amendment) Order 1996;''playing pitch'' means a delineated area which, together with any run-off area, is 0.4 hectares or more, and which is used for sport;'.—[Miss McIntosh.]

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 8.

Division number 7 Nimrod Review — Statement — Clause 102 - Statutory nuisance: lighting

Aye: 3 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 102 ordered to stand part of the Bill.

Clause 103 ordered to stand part of the Bill.