Daylight robbery – ignore it at your peril

Sometimes the most important considerations in a property development are those which are not immediately obvious, at least to the naked eye.

Sometimes the most important considerations in a property development are those which are not immediately obvious, at least to the naked eye. Cue the ever-expanding area of the Law of Light.

The increasing level of investment in hotspots of our UK city centres leaves us living and working in closer proximity than ever before. The need to protect our livelihoods and the enjoyment of our property has never been more pronounced. The potential severity of the penalties for ignoring such rights, tells us that rights of light are not to be forgotten, even if they are not readily apparent.

Perhaps the most common basis for a right to light is through prescription. A right of light can be acquired through sunlight having shone through a window of a property for 19 years and 1 day without interruption. In practical terms, such a right is likely to have begun from the time the window was put in place (i.e. the erection of the building).

Rights of light can prove troublesome for a developer where a proposed development would interfere with such rights. Take for example, the case of Forster v The SoS for Communities and Local Government. Last year, the Court of Appeal quashed the grant of planning permission which the developer had sought in order to demolish a building in Stepney and erect a three storey building in its place. Apparently, the fact that the neighbouring pub had 360 degrees of sunlight was crucial to securing bookings.

In another case, HKruk II (CHC) Limited v Marcus Alexander Heaney, a developer began building a new sixth and seventh floor to the Toronto Square Building in Leeds, in the knowledge that their plans would infringe the neighbour’s right to light. In fact, they reportedly bought the building at a £350,000 discount for that reason; and set aside a compensation pot of £200,000 to deal with any future claims.

The Court granted an injunction in favour of the neighbour to remove the building works which had been completed. While it happens that a settlement was reached, and the injunction never enforced, this case serves as a reminder of the real danger this area presents.

Such rights can be prevented by the service of a light obstruction notice under the Rights of Light Act 1959 before the 20 year period elapses; and risks of claims under the Act mitigated by acquiring right of light insurance.

Lately, we are seeing a series of right to light issues cropping up in ongoing and proposed developments.

Where does this leave property developers?

For now, at least, you must know precisely what you are buying subject to when you plan to develop a piece of land or building. The difference between receiving the best possible advice and not can mean meeting those all important deadlines in the initial stages or not – and also being able to manage your project as it progresses. Risks can be mitigated and expenses kept to a minimum with expert legal advice.

Sophie Smith is a trainee solicitor in the Real Estate team at national law firm Weightmans LLP

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