In this bulletin we look at rights to light, a legal issue which continues to impact developments across the city and beyond. It is bandied around as a buzz phrase in the media, but property owners and developers often receive mixed messages on how it should be dealt with. After a brief introduction to rights to light, we consider the solutions available and where you can turn to find them. Having evolved into sophisticated solutions, the different insurance options are explored in some detail.
What is right to light?
Any property in England or Wales may have, or obtain, a right to light. It is a private property right (easement) to receive light through an aperture, usually a window. Rather than being measured by a light meter, a specialist surveyor models how much sky can be seen through an aperture from a given point in a room. The relevance of rights to light and the associated risk becomes apparent when there is development of adjoining land.
A surveyor can calculate the point at which this same level of light can be seen in a room before and after the proposed development and, by reference to the altered positioning within the room, an amount of lost light can be calculated in square feet. There are several ways in which light loss can be valued but of course everything has a price, and compensation figures can range from thousands to millions of pounds. Worse still, as a property right, the Court’s view light as a precious commodity and one which should be protected by the full suite of legal defences should an affected property owner wish to pursue the matter.
The ultimate sanction is an injunction: a legal remedy requiring the property owner to restore the affected property to the position where it enjoys the same level of light. In effect they must demolish or radically alter their scheme from that envisaged, even if it has full planning approval.
Despite a Law Commission recommendation to abolish injunctions where one would be prohibitive to reasonable use or development of the land, they remain an ever present threat. The issues surrounding the development at 22 Bishopsgate are a recent and very public example. Against a backdrop of compensation, legal fees, redesign and property alterations, developers are rightly cautious against infringing neighbours’ property rights when building out.
How can the risk be avoided?
In an ideal world any development would be designed so as to have no impact on an adjoining properties’ right to light. Particularly in city developments where tall buildings are prominent, or where there is massing to existing buildings in an infill environment, this is impossible. The developer is then left with three ways to mitigate the risk of legal action:
- Obtain a release of any rights to light from any affected neighbouring land owner
- Seek assistance from the local planning authority for appropriation of the development land
- Insure against the risk.
Obtain a release of any rights to light
The next best thing to a scheme redesign is to seek the agreement of each neighbouring owner to release their rights to light. Once their right is released, an owner can have no further claim against the developer or land owner for infringement of that right. However there are several drawbacks to this approach. It:
- Takes time. Surveyors need to approach each and every party with a claim to the right to light. This can include tenants as well as freeholders. Formal legal deeds need to be drawn up, agreed, and registered at the Land Registry before the risk is removed.
- Can be costly. Negotiations cost thousands of pounds in professional advisor’s fees and begin to accrue from the time a decision is made to approach a neighbour. The sums which a third party may seek may not just be the ‘book value’ (a professional assessment of the value to their light loss) but may be based on enhanced sums several times this or even an alternative based on a share of profit.
- Is not certain. A third party may refuse to release their rights to light meaning that the injunction risk is very real.
- Highlights the issue. Whilst certain commercial owners may be aware of their right to light, some less advised owners are not, and even fewer private individuals are. Actively seeking a release from their rights may mean time is lost and money spent where otherwise there would be no claim, or even worse the uneducated owner being educated by the developer just to have them turn around to threaten an injunction.
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For more information contact Oliver Jackson, Partner on +44 (0)207558 3467 or email firstname.lastname@example.org