Right to Light Matters for Developers

Even once Planning Permission has been gained, if a legal right of light exists to neighbouring properties windows then potentially the neighbour(s) could be entitled to an injunction, or compensation, or a combination of both.

Most developers (usually larger organisations) therefore assess risk early, so that they can consider such risks and make informed decisions before proceeding with the planning process.

This usually goes hand in hand with a Daylight and Sunlight Report, often required for validation of the planning application.

If we are commissioned to assess such planning related matters, it can often be relatively easy to assess the right of light risk also, often with very little extra computer modelling required.

The advantages of assessing risk early include being able to consider making amendments to the scheme before the planning process has run its course, thus preventing you from gaining planning permission, only to later find that you have a right of light case on your hands which requires redesign, and subsequent re-submission for planning.

The other option is that it allows you to consider other options, such as insuring the risk.

Once a planning application is submitted, there is potential for neighbours to object, and if objections feature ‘loss of daylight/sunlight’ or the dreaded words ‘right to light’ then potentially the insurance option may no longer be available.

To enquire about a Right to Light Risk Assessment, please complete the form and we’ll be in touch.

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    “I worked with Adrian on a planning application for a 11-storey development in Manchester City Centre which had particularly complicated over-shadowing and right-to-light issues, including extant light obstruction notices, which previously I had known nothing about. Adrian was very friendly and forthcoming with advice and operated as an integral member of the design team, helping us to understand the impact of various scales of development and ultimately obtain planning permission for the development by allaying planners concerns.”

    Tom Partridge, Part 3 Architectural Assistant, NC Architecture

    Right to Light matters of concern for a Developer

    As a minimum, a Developer should make an assessment of the risk that a development could cause a legal injury to a neighbour in respect of Rights of Light. At Smith Marston, we are able to carry out the 3D AutoCAD modelling and undertake the complex calculations to make an assessment of the right to light issues using sophisticated computer software.

    A full right of light calculation requires accurate measurements of the potentially affected buildings, including internal room measurements. However, it might not initially be in the developer’s interests to alert all of the neighbours to the possibility of a right to light claim. Therefore, a risk assessment can be carried out based upon estimates of room sizes of the neighbouring buildings, thus allowing the developer to make informed decisions regarding the likelihood of rights of light legal injuries to the nearby buildings.

    Although a developer may need to obtain specialist legal advice at some time in the proceedings, we are able to provide assistance with assessing the likelihood of an injunction.

    In conjunction with a right of light risk assessment, we are able to provide advice and technical guidance to Developers and Architects to help maximise the site development potential.

    Following either a legal right to light action from a neighbour or, preferably, at the initial design stage, we can assist with the design of the development to maximise the external envelope whilst minimising the risk of any possible legal claim from neighbours regarding light to light issues.

    Generally a legal right to light is obtained by ‘prescription’, that is to say that a window has enjoyed uninterrupted light through it for a continuous period of at least 20 years.

    A window (or windows) within a property can be prevented from obtaining a legal right to light in this way by an interruption to the light to the window within this 20 year period.

    This interruption can either be in the form of a genuine physical obstruction, such as a fence, hoarding or even a new building. Alternatively, however, the Rights of Light Act 1959 allows for a notional obstruction to be created and registered as a Land Charge – this is known as a Light Obstruction Notice.

    Any interruption to the light to a window needs to be for a period of 12 months and so, in order to achieve this, any light obstruction (be it physical or notional) must be commenced within 19 years and one day of the start of the prescriptive period. Once a Light Obstruction Notice has been served, the affected neighbour has one year to contest it. If not, then the Light Obstruction Notice would remain for the 12 months, cancel out any preceding prescriptive period and so re-start the 20 year process necessary to obtain a legal right to light.

    It can be very useful for a landowner and/or proposed developer to prevent a neighbouring property from obtaining a right to light which might otherwise limit the size, location or extent of a proposed development on the land.

    At Smith Marston, we can assist with the service and registering of a Light Obstruction Notice or advise with regard to contesting one.

    Form 1 Application under Section 2 of the Rights of Light Act 1959
    Explanatory leaflet for applications for rights of
    light certificates

    Although most right of light disputes are settled out of Court, there are occasions where the dispute does proceed to Court and a CPR35 standard Expert Witness report will be required.

    To be valid for inclusion within a Court submission, an Expert Witness report must be in compliance with the Civil Procedure Rules part 35 (CPR35).

    At Smith Marston, we are able to provide Right to Light Expert Witness reports and have had disputes proceed to Court in the past.

    Philip Smith, one of the two Directors at Smith Marston, has over 20 years of experience of producing Expert Witness reports and he has been accepted onto the RICS Expert Witness Registration Scheme, confirming the necessary level of expertise to act in this respect.

    It is possible for a developer to take out insurance to cover themselves against the risk of legal action in respect of a right to light claim from a neighbour to the development.

    In recent years a relatively small and specialist range of Insurers have created Right to Light Indemnity policies available to developers to protect them from the risk of any possible future claim in respect of an infringement of a neighbour’s Right to Light. Recent prominent cases such as Regan v Paul Properties (2006) and HKRUK II v Heaney (2010) have highlighted the legal system’s increasing willingness to award an injunction against the developer rather than compensation. The costs of compensation/damages can be significant, often being based upon a percentage of developer’s profit, but this is still very significantly less than the cost of an injunction requiring the demolition of the offending structure, possibly following completion and occupation – as in the HKRUK case, where the cost has been estimated at £2.5 million.

    As a consequence, in order to allow a development to proceed without the delay of awaiting the conclusion of discussions and negotiations in relation to Right of Light matters, a developer can take out an insurance policy to protect themselves from the range of potential costs and diminution in value associated with a legal claim and any consequences of its outcome.

    Policy contents and cover can be refined to meet the specific needs of the developer and the site. In the majority of cases, the cover would extend to the developer, successors in title and any lenders with a financial interest in the development building.

    If you are a developer considering such insurance cover, however, it is very important to note that, under no circumstances should you discuss the possibility of insurance cover with any potentially injured parties – this would automatically prevent insurance cover in respect of those properties.

    The first and most important pre-requisite of any insurer’s consideration of providing cover will always be a full Right of Light assessment from a specialist Right to Light Surveyor – to discuss any issues at all with regards to these matters, please do not hesitate to contact us. We can also suggest specialist Insurance Brokers dealing with Right of Light policies who can advise regarding specific policy issues.

    The Potential Costs

    The potential costs associated with not fully and adequately assessing the right to light risks early on in the design process are potentially enormous.

    At the best, a successful right of light claim might result in a compensation payment to a neighbour. Alternatively, an injunction would necessitate some re-design and probably re-submission for planning permission plus all associated delays and costs.

    The very worst case scenario would be an injunction following completion and occupation of a development, such as a court ruling against Highcross in Leeds.

    The developer in this case had appealed against the ruling of an injunction against them but, just a few days before the appeal was due to be heard, an out-of-court settlement was agreed. This means that the original court judgement of an injunction remains as unchallenged case law.

    Technical Information on Right of Light Matters

    Buildings can obtain a legal right to light which then allows an owner to take legal action against a development which would cause a specific loss of light through existing windows of affected rooms.

    Most commonly, a right to light will be acquired by anyone who has enjoyed uninterrupted light through an opening (without specific consent, openly and without threat, and without interruption) for more than 20 years. However, there are alternative means of obtaining a legal right of light such as by express grant or implied grant; these alternatives can mean that a new building can immediately have rights of light without having enjoyed light through openings for 20 years.

    The Law

    A legal right to light is protected in England and Wales under common law, adverse possession or by the Prescription Act 1832. If a development limits the amount of light coming in through a window and if, as a consequence, less than approximately half of the room remains adequately lit, this would constitute a legal injury which would mean that the neighbour to a development would be entitled to compensation or an injunction against the developer.

    Right to Light is a specialist area that many Surveyors, Architects and Planning Officers are relatively unaware and, as a consequence, a scheme can pass through the design, drawing and tendering phases without anybody even considering legal rights of light – we are regularly involved with projects where exactly this has happened. It should be noted that, just because a scheme has planning permission does not mean that there might not be legal right to light issues.

    The possible remedies for a successful action in respect of a legal right to light claim are an injunction and/or compensation. The fact, though, is that, if it can be demonstrated that there has been a legal injury then, at a minimum, compensation would be payable to the neighbour. There are some notable cases where a Judge has ordered for the partial demolition of a completed development as a result of a successful right of light action.

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