B2/2006/1599

Neutral Citation Number: [2006] EWCA Civ 1590

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM SOUTHEND COUNTY COURT

(HIS HONOUR JUDGE YELTON)

 

Royal Courts of Justice

Strand

London, WC2

 

Friday, 10th November 2006

 

B E F O R E:

LADY JUSTICE HALLETT

SIR PAUL KENNEDY

 

YEADELL

CLAIMANT/APPELLANT

- v -

OAKWOOD CONSTRUCTION SERVICE LTD

DEFENDANT/RESPONDENT

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MR J HYAM (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Appellant.

 

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

 

J U D G M E N T

(As Approved by the Court)

 

Crown copyright©

1. LADY JUSTICE HALLETT: The applicant, Miss Gabrielle Yeadell, renews her application for permission to appeal the decision, of 27 June 2006, of HHJ Yelton. He dismissed her application for an injunction and her claim for damages in relation to alleged light pollution and nuisance. He also ordered that she pay the defendants' costs on an indemnity basis. The applicant was born and has lived for most of her life at her present home, a large and once secluded house in Hockley, number 6 Southend Road. A neighbouring property was sold and developed, despite her objections. Five houses were built upon the land. The applicant objects to what she says is light pollution emanating from eight street lamps, which come on at night and go off in the morning. Although the five houses are individually and privately owned, the development, Hawkley Meade, is operated and managed by the first and second defendants/respondents.

2. In summary, the proposed grounds of appeal, as advanced by Mr Hyam, are that the learned judge erred in law in the following ways: (1) by failing to take properly into account the evidence as to the impact of light emissions on the applicant's property when he considered whether or not a nuisance existed; (2) by holding that there was no nuisance on the grounds that the applicant was somebody who had objected to the development throughout its history; (3) by holding that the locality of the applicant's home was an urban area by reference to what Mr Hyam called "hypothetical conditions" which would apply adjacent to a public highway lit with street lights, when he himself had, in fact, found that the property was well set back and, prior to the development, very secluded; (4) by failing to take properly into account the practicability of the defendants taking mitigating measures at minimal or modest cost; (5) by failing to take into account the public interest in minimising light pollution in the interests of reducing energy use and sky glow, as recognised by a number of Government and environmental bodies; and (6) by holding that her objection to the development constituted unreasonable behaviour to the extent that her pursuit of the action should be penalised by an award of costs on an indemnity basis.

3. In his written submissions, Mr Hyam argued that this proposed appeal was significant for two reasons. Firstly, he argued that the judge has applied the law wrongly. There are two elements to the law of nuisance: firstly, substantial interference with the use of land, and secondly, the reasonableness of such interference. He submitted that the judge has wrongly taken those two elements in turn and found that there was no substantial interference. He did not go on to consider whether the actual interference as advanced by the applicant and her witnesses was a reasonable use of land.. What he should have done, according to Mr Hyam, is to approach the question globally and ask himself whether or not what interference there was could have been relieved by reasonable measures. Secondly, he argued that the proposed appeal provides an opportunity for the Court of Appeal to clarify what he said is an increasingly important aspect of the law, namely the effect of light emissions. He submitted there are insufficient decisions of the Court of Appeal which provide guidance to those who practise in the field, and of course to those in the applicant's position who suggest they have been affected by excessive light pollution.

4. In his written submissions, Mr Hyam rehearsed the judge's summary of the law, most of which he derived from the leading textbook, Clerk & Lindsell on Torts. As I have indicated, My Hyam takes no exception to that summary, say that he suggests that the judge did not go far enough, and he did not analyse the various components that constitute a real interference with the enjoyment of property. For example, Mr Hyam asserts that the judge did not adequately assess the impact of these light emissions on Miss Yeadell and visitors to her property, and he has failed to take into account at all the practicality of mitigating measures, such as fitting hoods to the street lights, fitting sensors to them, or reducing the wattage of the bulbs. Mr Hyam further criticised the judge for making what he described as two material errors of fact in his conclusion on light emissions. In paragraph 25 of the judgment, HHJ Yelton said this:

"This is street lighting, no more and no less, which is within the recognised guidelines and which is some considerable distance, most of it up to about 300 feet according to Mr Belcher, whose evidence I accept, from the claimant's property."

5. Mr Hyam protests that the judge has got the evidence of Mr Belcher wrong and that, in fact, the street lights, many of them, were far closer to Miss Yeadell's property than 300 feet . Mr Hyam took us through the expert evidence, in particular the evidence of an expert called on behalf of the claimant, a Mr Pollard. He concluded that the current lighting used by the defendants and proposed respondents was excessive and it was he who suggested there were simple actions which could be taken to bring the lighting into line with acceptable environmental guidelines. However, Mr Hyam was also forced to concede, as he most properly did, that the joint statement of the experts concluded that:

"The visual impact of the road lighting in Hawkley Meade is within the current guidelines for limiting obtrusive light surrounding a development in either an E2 or E3 environmental zone."

6. In planning terms, the experts agreed that this development came within one or other zone. However, Mr Hyam suggests that merely making a finding that the lighting came within current guidelines was insufficient and the learned judge, had never performed the task which had been set for him. He suggested that the judge should not have assessed the lighting in the way that he did, given the locality and the steps to which I have already referred which could be taken to reduce it. I hope I have done justice to Mr Hyam's submissions in what must be a very short summary.

7. I can state my conclusions briefly. In my view this is an attempt, pure and simple, to appeal the judge's findings of fact which, on the evidence called before him, it was open to him to make. Try as I may, I cannot discern an error of law on the part of the trial judge. He correctly identified and applied the principles of the law of nuisance. He accepted that a nuisance might well be created by light pollution. It is however, as he ruled, a matter of fact and degree in every case.

8. On the facts in this case, he found against the applicant. There is nothing in my view raised by the proposed appeal which requires further illumination, (no pun intended), by this court. The learned judge throughout his judgment has plainly, in my view, considered the two aspects to a private action for nuisance. He has considered whether or not there was a substantial interference with the applicant's use or enjoyment of her land and in his judgment, she failed to demonstrate that whatever interference there was was substantial and, unreasonable. He has justified his findings by reference to the evidence called before him, including the evidence of the experts. He had the benefit of plans and photographs to assist him, coupled with his own local knowledge, which appears to have been considerable. I reject Mr Hyam's submission that HHJ Yelton has misdirected himself as to the nature or extent of the locality to be considered. He plainly is well aware of the kind of area that this is and he was in a far better position than this court to decide whether or not the light emission from these particular lamps constituted a nuisance.

9. Accordingly, for my part, I would have no hesitation in rejecting the proposed appeal. The judge was entitled to find, having seen and heard the applicant, that she did have a very hostile attitude towards this development, one that many might well understand. For my part, I do have sympathy for her. I am sure she does genuinely feel that her quality of life has been affected by this development. But she took upon herself the burden of attempting to establish an action of nuisance, and on the judge's findings on the facts, that she has failed to discharge.

10. Accordingly, I would, as I have indicated, refuse the renewed application for permission to appeal the judge's judgment in favour of the defendants. Given the findings that he made that this was an unreasonable pursuit of this action and generated by the applicant's attitude towards the development, in my view, his decision on costs is also unappealable. As Mr Hyam conceded, the judge has a wide discretion on the question of costs and I, for my part, can see no real prospect of successfully appealing the orders made.

11. Accordingly, I would refuse the renewed application.

12. SIR PAUL KENNEDY: I agree.

 

Order: Application refused.