Adam Keith by

Posted on September 1, 2016

“Questions of Ancient Lights occupy a most important position with reference to building enterprise in large towns, and most of all in London.  As the value of house property has increased, disputes of this class have become more common than ever, more difficult of settlement and more expensive”.

– On Ancient Lights: And the Evidence of Surveyors Thereon by Robert Malcolm Kerr (1865)

The above statement, written in 1865, is as relevant today as it was then. Rights of Light have been a thorn in the side of developers since the decision in HKRUK II v Heaney (2010).  Since then, the law surrounding them has changed significantly with major changes including:

  • Coventry v Lawrence (2014)
  • Ottercroft v Scandia (2016)
  • The Abolition of Section 237

What are Rights to Light?

A right of light is an easement which allows owners of properties who have had access to light the ability to protect that level of light.  This is based on the Ancient Lights law and is usually gained via prescription (20 years continued use), but can exist if granted expressly by deed, or granted implicitly, for example under the rule in Wheeldon v. Burrows (1879).  Once a right to light exists, the owner of the right is entitled to “sufficient light according to the ordinary notions of mankind” as per Colls v. Home & Colonial Stores Ltd (1904).

To determine what is considered “sufficient” light, experts use a method initiated by Percy Waldram in the 1920s. Waldram suggested that ordinary people require one foot-candle of illuminance (roughly ten lux) for reading and other work involving visual discrimination.  This equates to a sky factor (similar to the daylight factor) of 0.2%.

The infamous case of HKRUK II (CHC) Limited v Heaney (2010) changed the landscape beyond recognition.  In that case an injunction was granted after completion of the property and it was ordered that the offending area of the building would have to be removed. Injunction risks are the most serious potential consequence from breaching a Right to Light.    Damages can also be awarded and these can be substantial depending on the injury caused.

Coventry v Lawrence

The case of Coventry v Lawrence involved nuisance, but also changed the approach to Rights to Light.  The case stated that the conduct of the defendant and public interest should be included when deciding whether an injunction is appropriate.  This lowered the potential risk of injunction and added a degree of flexibility to the previously rigid ‘Shelfer Test’ which stated that an injunction should be granted unless the infringement was minor.

Ottercroft v Scandia

Ottercroft was not, on the face of it, a traditional Right to Light case.  When most people consider Rights to Light they often think of London and its skyscrapers which continue to rise.  Ottercroft involved a small damage to light caused by the construction of a metal fire escape staircase which blocked the light to a window of a neighbouring restaurant.  The damages were roughly £886 and the cost of amending the staircase would likely have cost £6,000.  Despite this, the court held that the misleading behaviour of the defendant was the key factor and granted the injunction.  This not only upholds the doctrine seen in Coventry v Lawrence, but embeds in the Court process that developer behaviour is key in mitigating Rights of Light claims.

Another potential outcome of Ottercroft is the rise in ‘small’ Right to Light claims.  This is particularly relevant for anyone who wishes to extend their property.  As Rights to Light claims become more prevalent, they cease to become solely the concern of large city developments.

The Effect on Insurance

Originally, insurance would take a ‘let sleeping dogs lie’ approach to Rights to Light.  The idea being that most people would be unaware of such an obscure law.  Heaney changed that, but Coventry and Ottercroft practically removes this as an option.  This will come as little shock to any well-advised developers who will continue to plan with communication with neighbours’ at the forefront.  Insurance has been moving in this direction for some time. Policies which insure the property on a ‘no approach’ basis are now extremely rare.  Any developer considering a project with the potential for a light infringement should plan their strategy carefully.  Engaging a broker and insurers early will allow for the creation of a strategy which enables the developer to manage their exposure.  However, insurance is not a panacea. It will not ensure the development goes ahead and does not make the risk disappear, but with careful management and inclusion of consequential loses, it can help mitigate the risk greatly.

The Abolition of Section 237

Where light issues were too great to overcome, some developers were able to turn to S.237 of the Town and Country Planning Act 1990 in order to allow them to proceed.  Famous examples include the Walkie-Talkie, Tottenham Hotspur FC’s new stadium and, more recently, 22 Bishopsgate.  This gave Councils the ability to override easements and other rights.  It was the weapon of last resort and used sparingly, often to force parties to negotiate or lose their right.  Most developers would not have been able to avail themselves of this power unless their project was particularly prestigious.

The Housing and Planning Act 2016 came into force on 13th July and repealed S.237, replacing it with Section 203.  This is largely the same, but there are some subtle and substantive changes to note. S.203 will allow interference with rights of light and other easements when carrying out building or maintenance work on, or using, land which has been vested in or acquired by a “specified authority”.

There are a number of qualifications:

  • As before, planning permission must have been obtained for the building or maintenance work/use of the land;
  • The specified authority must have the necessary powers in legislation to be able to acquire the land compulsorily for the purposes of the work;
  • Work must be related to the purposes for which the land was acquired or appropriated by the specified authority. This was case law, but has now been codified;
  • The land must have become vested in or acquired by a specified authority after S.203 comes into force or be “other qualifying land”. This means developers should not have to worry about S.237 provisions lapsing.

It is notable that a “specified authority” not only includes local authorities but other public bodies, such as government departments, and bodies with statutory functions, including statutory undertakers (this will include utilities/telecoms companies/nationalised companies like Network Rail).

S.203 has many areas which have yet to be clearly defined, but as far as developers are concerned, nothing much will really change, although there is the possibility the local authority may be more open to use of the powers.

Conclusion

Light continues to be an issue for developers of all sizes. The recent changes in law would appear to suggest that there is no political will to abolish it.  This may change, but seems unlikely in the near future. Developers will need to continue to plan carefully in order to ensure they are fully protected.  Insurance is an extremely helpful tool, but needs to be engaged early in order to be as effective as possible. It also needs to be paired with a communication and approach strategy which keeps the developer on the right side of Coventry and Ottercroft.

If you would like more information on this subject please contact Adam Keith:

Tel: 020 058 2536
Email: [email protected]

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