Shedding light on rights of light

A successful right of light claim can have catastrophicconsequences to a development not only in terms of cost and delay butpotentially requiring a developer to revise or even abandon a development. Itis therefore imperative that well in advance of commencing any development, acomprehensive strategy is agreed upon in conjunction with appropriatespecialist advisors to deal with rights of light.

So what is a right of light?

It is a right to enjoy natural light coming from the sky toa building and through windows in that building so those owning or using thebuilding can enjoy an acceptable level of light in the building. It does notapply to open spaces. It only relates to light coming through aperturesintended to admit light. It is only a right to light and not to sunlight, aview or air and it is not a right always to receive the same amount of lightbut rather an acceptable level.

Those with such a right are entitled to take action toprotect that right if a development would interfere with it by bringing thelevel of light below what is legally acceptable. What is acceptable and how thereduction is measured are based on numerous factors and complex calculationscarried out by a rights of light surveyor.

1.The first step for any developer needs to be to obtain asurvey of all surrounding and adjoining buildings to the proposed developmentto establish where the risks may lie. Rights of light are considered both byindividuals and corporations as important – particularly in towns and citieswhere light can be a very precious commodity indeed.

2.In addition to the picture on the ground, lawyers need tobe engaged to search through and assess the deeds and Land Registry records forboth the details of the various property interests in the surrounding and adjoiningbuildings should compromise agreements need to be struck, but also for evidenceof any rights to light agreements or deeds which may either assist or detractfrom such negotiations or to be used at Court.

3.The next step is to decide whether to take a pro-activestance and contact the owners of the various interests highlighted to commencenegotiations, whether to rely on insurance, and/or to go down the LightObstruction Notice route. Some of these options will be to the exclusion ofothers. For instance, not all developments will be insurable. Insurance wouldgenerally not be available if the affected neighbours have already beenapproached or are aware of their rights. A positive decision either waytherefore needs to be made at the outset.

The Light Obstruction Notice process is an alternative towriting direct to owners where it is not clear that sufficient time has elapsedto give the owners a prescriptive right of light. It is also a useful means offlushing out who may have or is willing to protect a right of light. In verybroad terms, the developer is able to register a Light Obstruction Notice as alocal land charge and if it remains unchallenged for 12 months the 20 yearsprescriptive clock is turned back to zero.

Where the advice is instead to open negotiations with a viewto reaching agreements to compromise the rights of light with the relevantowners, any compensation payments are a matter of individual negotiation. It isimportant that these agreements are legally enforceable and binding both on theowner and its successor in title. It also should be widely drawn to includeboth the proposed development and, potentially, any alternative developmentwithin the same envelope.

Developers need to realise that even these initial steps cantake many months to complete and should be in place before work begins on site.To do otherwise is a risky strategy bearing in mind the consequences to whichwe now turn.

If it is not possible to rely on insurance, to extinguishrights by Light Obstruction Notices and/or to reach settlements with all thoseaffected and the owner is insistent on protecting its right, then the mattercould reach the doors of the Court. The broad principle is that an aggrievedowner is entitled to an injunction i.e. a Court order preventing the developercarrying out that part of the development which infringes the owner’s right oflight unless the Court is satisfied that the owner would be adequatelycompensated in damages.

There is a high threshold which the developer will have toovercome to persuade a Court that damages will be an adequate alternativeremedy. In order to decide this, the Court at this stage will look at theconduct of the parties throughout any preceding negotiations and will becritical of any developer who has ignored the rights of neighbouring owners andhas not made an effort to accommodate them. Other factors relevant will includethe extent of the interference, the effect on the development of an injunctionand also the nature of both the development and the affected premises.

A warning to developers

Not so long ago the general consensus was that injunctionswere inappropriate in rights of light cases. This in turn gave some comfort todevelopers that most likely the worst case scenario would be having to paydamages if a claim was mounted. However this line of thinking was shaken by thecase HKRUK -v- Heaney which resulted in an injunction requiring the removal oftwo floors of a development already completed. This was despite the developerseeking to resolve matters with Mr Heaney, and Mr Heaney failing to seek aninjunction, before the development was completed.

Emboldened by the Heaney case, adjoining owners with rightsof light are less likely to settle at least in the early stage of negotiationsand developers should commence their rights of light strategy at an evenearlier stage - to allow sufficient time to conclude all negotiations, the use(where appropriate) of Light Obstruction Notices and to obtain (if necessary) adetermination from the Courts.

Town and Country Planning Act

The above may make more attractive the power under Section237 of the Town and Country Planning Act 1990 which enables developers of landacquired for this purpose by local authorities to develop free from any rightsof light claims (but with compensation being payable). In the light of recentcase law, more interest in this power has been shown recently, but even thisoption is not a risk free option and is open to challenge ultimately by way ofjudicial review.

It is a brave developer who does not include right of lightissues near the top of his agenda for his proposed development.

 This article first appeared in Law-Now, CMS CameronMcKenna's free online information service, and has been reproduced with theirpermission. For more information about Law-Now, click here.