Shedding some light
Developers need to bear ‘rights to light’ in mind to avoid costly challenges, says Ben Halsey, senior associate at Lewis Silkin
Redevelopment in densely populated urban areas has always been challenging, and recent changes in the courts’ approach to ‘rights to light’ have increased that challenge.
A right to light is a right to receive natural light across someone else’s land into a window or other opening. Consultants should say whether any windows overlooking a potential development site enjoy a RTL, and if they do the project may be prevented from building as high as originally planned, or at all.
What are the implications?
Upon the application of the owner of the affected window, the court can not only stop development but might also order any part of the development to be taken down - known as an injunction. More common, but less draconian, is an order for damages to be paid to compensate third parties for the development proceeding. Sometimes, both remedies apply.
Case law shows the threat of an injunction has increased - there have been cases where developers have been forced to take down buildings. Recent decisions of the courts serve as a reminder that one can’t assume that RTL owners will always be happy to be bought out (even after a development has been completed) or that, perhaps more worryingly, parties who don’t bring RTL proceedings in a timely manner will lose their ability to obtain an injunction - the court can exercise discretion in such matters. This is pushing up the costs of indemnity insurance and, in some cases, it’s simply not available.
Where a local authority owns surplus land that is intended for sale and development, it may agree to co-operate and appropriate - set aside - the development site for planning purposes. Appropriation can unlock projects because it has the effect of permitting interference with third party rights (including RTL) and thereby removes the threat of an injunction - although the ‘injured’ party will have a claim for compensation.
While this is all good news, parties seeking to rely on the ‘magic wand’ of appropriation should proceed with caution: don’t take it for granted that the local authority will exercise its powers of appropriation - there isn’t an obvious (statutory) appropriation procedure to follow.
It is also important to make sure the council has identified a proper ‘planning’ purpose for the appropriation, beyond the parties’ desire to make the development proceed, otherwise it may be set aside by a court. This
may be straightforward, for example meeting the demand for new housing, but it is important to avoid future challenges.
Developers need to ensure they see written evidence of why the local authority intends to appropriate, the formal resolution to appropriate and a properly executed appropriation memorandum.
Developers need to ask themselves: am I protected if the local authority gets it wrong (for example, through a contractual indemnity)? And am I expected, and can I afford, to pay or indemnify the local authority if there are any compensation claims from third parties whose rights have been overridden?