Specialist legal advice for commercial right to light claims
In a commercial development context, right to light claims are very important. They can, if successfully asserted, have an impact upon both the completed development and the possible profits that may be derived from it.
In a worst case scenario of a commercial right to light claim, a developer could be ordered, via a mandatory injunction, to take down all or part of a building that infringes an adjoining owner’s right to light.
Alternatively, the Court has a discretion to award damages in lieu of an injunction, which is typically based upon an award of a predetermined share of the developer’s profits which have derived from the infringement if it is allowed to remain.
Commercial right to light claims – legal nuisance
An infringement on a neighbouring property’s right to light may be actionable as a legal nuisance.
A prospective claimant would first have to establish that there has been an actionable reduction in light passing through a window (or other aperture) in a building. That, of course, relies on the claimant being able to establish that a right to light actually exists. Such rights (which essentially exist in the nature of easements) will be present where:
- They have been created expressly (or impliedly) by deed; or
- They have arisen via long-use under the rules of prescription.
Where a right to light exists, the claimant will then have to establish that the interference (or, in the case of a “planned” development, the “proposed” interference) will amount to a legal nuisance.
The test for the interference was set out by the House of Lords in Colls v Home & Colonial Stores [1904] AC 179, where the Court explained that nuisance will be established where the reduction in light caused by the obstruction is:
“…such as to make the building a sensible degree less fit than it was before for the purpose of business or occupation according to the ordinary notions of mankind.”
Of course, the concept of “the ordinary notions of mankind” will have evolved since 1904 and since the Court, in its own analysis, link the “purpose” of the building in question to the light-level that would be appropriate, the standard of light to be delivered through any given aperture will vary depending on the use of the building.
It can therefore be quite a complex task to ascertain whether a planned development would infringe adjoining owners’ rights. As a result, it is advised that legal advice is sought.
How we can assist with commercial right to light claims
At Nelsons, our expert team of property dispute solicitors in Derby, Leicester and Nottingham have links with specialist surveyors and are able to advise developers on how to mitigate the risks associated with potential commercial right to light claims.
Our specialist team can guide you through:
- Analysing the initial risk of rights to light existing. This will usually involve considering the legal titles and seeking specialist surveyor advice to provide a view on the age of the buildings in the locality to see if any express or prescriptive rights might exist.
- Where a risk is identified, either:
- Liaise with a specialist right to light surveyor who can provide a desk-top evaluation on how any proposed development might impact upon the light being cast on to the adjoining buildings. From there, the right to light specialist will be able to predict whether any reduction in light will be “actionable” in the sense envisaged in Colls (usually achieved by applying a technical methodology known as the “Waldram” method which, amongst other things, introduced the concept of the 50/50 rule);
- Where rights have not yet accrued, seek to mitigate the risk of prescriptive rights arising by preparing and serving a “light obstruction notice”; and/or
- If rights have been identified, seek a formal release of the rights or, in some situations, it is possible to obtain bespoke insurance policies to cover possible right to light claims.
Notwithstanding the options set out above, it cannot be overstated that developers cannot insist that those with rights release them formally and very often sensitive and protracted commercial negotiations are required to try to achieve releases. Moreover, many insurance companies will only provide indemnities when the adjoining owners have not been “made aware” of the possible claims and substantial premiums are often required.
Because of this, in some cases, it is possible to request that the local planning authority exercise their statutory powers under Section 203 of the Housing and Planning Act 2016 to effectively “override” the rights of the owners of adjoining properties that may be effected. This power, however, is rarely used and will require the transfer of ownership of the land to the local planning authority and in most cases are only considered after release negotiations have failed. In such instances, expert advice can be sought from our Consultant, Ian Green, who has over 20 years’ experience in all aspects of planning, infrastructure and development law, acting for both private and public sector clients.