Posted on October 21, 2021 by Stuart Simington and 8

How is light pollution regulated in NSW?

It has been claimed that artificial light at night is the fastest growing pollutant in the world.  And whether or not that is demonstrably the case, it does seem that relatively little has been written about how law and policy is or can be used to deal with it. The lack of literature may well be a predicament for regulators faced with  dealing with it.

This post delves into this developing area of regulation and outlines the legal measures which are currently available to address light pollution in NSW.

How is light pollution currently regulated?

Environmental law

At the Commonwealth level, an action which will or is likely to have a significant effect on a matter of national environmental significance (for example, listed threatened and migratory species) because of light pollution is required to obtain environmental approval under Chapter 4 of the Environment Protection and Biodiversity Conservation Act 1999.

Similarly, in NSW, if development or activity is likely to significantly affect threatened species because of light pollution, then, under Chapter 7 of the Biodiversity Conservation Act 2016, a development application or environmental impact assessment under the Environmental Planning and Assessment Act 1979 (‘EPA Act‘) must be accompanied by a species impact assessment or biodiversity development assessment report, as the case may be. Light pollution may also arise for consideration in a review of environmental factors under Division 5.1 of Part 5 of the EPA Act.

However, light pollution is not covered by the Protection of the Environment (Operations) Act 1997, the main pollution law in NSW. This is unlike other jurisdictions which include light in its statutory definition of pollution such as the ACT (see the Dictionary to the Environment Protection Act 1997 (ACT)).

Planning instruments

While light pollution can and often is regulated through planning controls, it is generally ad hoc.

The most significant light pollution planning control in NSW is for the Siding Spring Observatory, which is located near Coonabarabran in NSW. To protect the observatory from light pollution, cl 5.14 of the Standard Instrument—Principal Local Environmental Plan 2006 (‘Standard LEP‘) imposes mandatory light pollution considerations on consent authorities and prohibits certain kinds of development within and beyond 18 kilometres of the observatory (see also cl 92(1)(d) of the Environmental Planning and Assessment Regulation 2000).

Planning controls addressing light pollution can apply even at the scale of a single lot. For example, to protect the Dubbo Observatory, the Dubbo Local Environmental Plan 2011 has a light pollution control applying to a specific site. The clause prevents Council from granting consent to dwelling houses with skylights and restricts the number, control, direction, shielding, and luminosity of any outdoor lighting proposed.

In urban areas, light pollution control through planning instruments is generally lacking. However, the Ryde Local Environmental Plan 2014 is one example. As part of its planning controls for environmental sustainability, the City of Ryde has included in cl 6.6(2)(e):

Development consent must not be granted to development on land in a business or industrial zone if the development is 1,500 square metres in gross floor area or greater unless the consent authority is satisfied that the development has regard to the following— … emissions reduction, including reduced flow to sewer and light pollution, …

Some state environmental planning policies (‘SEPPs‘) also deal with light pollution. For example:

• There are eight Australian Standards which have been incorporated into the ‘Lighting for Roads and Public Spaces Standard‘ under State Environmental Planning Policy (Infrastructure) 2007, which classifies lighting in places like roads and parks as ‘exempt development‘ if certain requirements to minimise light pollution are met (see also Schedule 1)
• There are also light-related provisions under the Advertising and Signage Exempt Development Code (see Division 2 of Part 2 of the SEPP (Exempt and Complying Development Codes) 2008) and the assessment requirements under Clause 7 of Schedule 1 of State Environmental Planning Policy No 64—Advertising and Signage.

Conditions of development consent

Conditions of development consent imposed under s 4.17 of the EPA Act can be used to address light pollution on an ad hoc basis.

For example, a  condition of the consent in Lot 11 Neil Street Pty Ltd v Cumberland Council [2021] NSWLEC 1037 reads:

5. Lighting
Any lighting on the site shall be designed so as not to cause a nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with AS 4282-1997 Control of the obtrusive effects of outdoor lighting.

(Reason: Protect amenity of surrounding area)

A condition in Anglican Community Services v Campbelltown City Council [2019] NSWLEC 1600 reads:

Lighting
Illumination of the site is to be arranged to provide an appropriate level of lighting and in accordance with the requirements of Australian Standard 4282 (as amended) so as not to impact upon the amenity of the occupants of adjoining and nearby residential premises or traffic, or to avoidably impact upon wildlife.
Any lighting of external areas within the development such as the rooftop shall be designed and located in a manner to prevent light spill and/or glare impacts on neighbouring premises.
Lighting shall be designed to minimise all forms of light pollution and must not use bright “blue-white” LED lighting outside in order to avoid harmful effects on insects which has flow on effects for microbats and birds.

For an example of the impacts of light pollution being considered in a review of the merits of a modification application to change a consent for print advertising to allow digital displays, see Outdoor Systems Pty Ltd v Georges River Council [2021] NSWLEC 1338.

Nuisance

As far as disputes between private individuals are concerned, the tort of nuisance may be relevance.

A claim in private nuisance may be made where one person substantially and unreasonably interferes with the property right of another. Such an interference could take the form of light pollution. For example, in Raciti v Hughes (1995) 7 BPR 14,837, private nuisance was made out where a person concentrated bright lights into their neighbour’s backyard.

Alternatively, where light pollution substantially and unreasonably interferes with a right of the public at large (for example, the use of public parks or roads), a public nuisance claim may be made. Public nuisance is both an offence in criminal law and a tort in civil law. In NSW, councils are empowered to deal with public nuisances through orders under s 125 of the Local Government Act 1993. A failure to comply with such orders is also an offence.

Australian Standards

Lighting practitioners will generally refer to the Australian Standards in the first instance to ascertain whether any given artificial light is a problem.

The most relevant Australian Standards are made by two committees:

• LG-002: Lighting for Roads and Public Spaces (see, eg, AS/NZS 1158.3.1:2020, which deals with light pollution in pedestrian areas); and
• LG-010: Obtrusive Effects of Outdoor Lighting (see, eg, AS/NZS 4282:2019, which recognises the impact of light pollution on biodiversity).

Australian Standards are not legally enforceable per se. However, they may (and do) become enforceable if they are incorporated through a mechanism with the force of law, like a condition of development consent or a provision in a State Environmental Planning Policy (see above).

Australian Standards may also assist as evidence in proceedings for nuisance.

Guidelines

Technical guidelines are important sources of information. However, they are also not legally enforceable in and of themselves.

For biodiversity, the most important guideline is the National Light Pollution Guidelines for Wildlife (January 2020).

There is also the State Planning Guideline 2016 for the Siding Spring Observatory, which is a mandatory consideration for all councils which adopt cl 5.14 of the Standard LEP.

What are councils doing to change how they deal with light pollution?

Some councils are already taking steps to change laws and policies to deal with it light pollution more effectively.

The most common approaches so far seem to be to change local planning controls and to seek a designation by the International Dark Sky Places Program. For example, just this year:

• In August 2021, Northern Beaches Council resolved to proceed with an application for an Urban Night Sky Place at Palm Beach Headland and made news Australia’s first urban night sky park.
• In April 2021, Lane Cove Council resolved to approach the authors of the Program to work with the Council to develop a standard based on recommendations for ‘appropriate planning instruments to reduce the impact of light “spill” on urban bushland‘. These are intended  to build on the Council’s bushland protection objectives in its development control plan.
• In February 2021, Waverley Council resolved to consider incorporate dark sky principles and strategies in an updated Creative Lighting Strategy and consider a Dark Sky Reserve in its parks and along the coast.

Intergovernmental agreements and advocacy are also options for councils looking to protect areas managed by others. For example, having resolved to deal with light pollution in October 2019, the Blue Mountains City Council in February 2020 resolved to support Dark Skies certification for the Linden Observatory and wrote to the Environment Minister urging him to seek certification for a Dark Sky Park over the Blue Mountains National Park or Greater Blue Mountains World Heritage Area (as in Warrumbungle National Park near the Siding Spring Observatory).

Light pollution is an area of law and policy in a state of flux . We expect the regulation of light pollution to become increasingly sophisticated in the years ahead.

To discuss this blog, please call  Stuart Simington on (02) 8235 9704 or Lachlan Penninkilampi on (02) 8235 9719.