THINKING AROUND CORNERS: RIGHT TO LIGHT

Neon Mavromatis, Managing Director, Construction for Kerry London, discusses Right to Light

A construction project, whether commercial or residential, can be full of complexities. Despite the fact you may have done your due diligence and have all necessary safeguards in place – from architects, to planning consultants, surveyors and lawyers – it’s impossible to predict every eventuality. Even ‘minor’ issues have the potential to derail a schedule or halt a project entirely. One of the more common claims that may be lodged by a neighbouring property owner is that their right to light has been infringed by the development.

What are ‘rights to light’?

In law, a right to light is an easement: similar to having a right of way over a neighbour’s land. Laws surrounding rights to light in the UK go back several centuries.

As a property owner, if you have a right to light it means you are legally entitled to receive sufficient light through an opening so that you may enjoy ordinary, comfortable use of your dwelling, or ordinary, beneficial use and occupation of other buildings, such as a greenhouse or warehouse.

It’s important to note that a development which blocks light to a garden or grounds will not normally amount to an infringement of a right of light unless it also prevents light from passing through a window into a building. That’s because there is no such thing as a ‘right to light’ for open ground.

As part of any development, factors which could affect light levels include:

• the height, size and orientation of the proposed development,

• the distance from the neighbour’s boundary,

• the topography of the surrounding site.

Acquiring a right to light

A right to light can be acquired in several ways. One of the most common is simply to occupy a property which has experienced uninterrupted access to daylight for at least 20 years, openly and without threat. Another route is by way of an express legal agreement.

It should be noted that owning a property which was constructed more than 20 years ago doesn’t automatically grant a right to light. In the cases of older properties, it is necessary to check the history of the building and its surrounding area.

UK rights to light and planning requirements

Planning applications may not resolve all issues around rights to light in the UK. When local authorities consider an application for a development, they will usually consider the effect it may have on any neighbouring properties, including levels of sunlight and the duration of exposure to daylight. It is important to note

this is not the same as resolving a right to light issue, and is not a guarantee of protection in the event a legal claim is brought against the developer at a later date.

How much light is a property entitled to?

Surveyors have established best practice guidelines, known as the Building Research Establishment (BRE) guidelines. These include something called the ‘45-degree guide’ which helps planners determine the impact a development may have on a property. However, this should not be confused with how a court may decide a right to light issue.

Due diligence and right to light indemnity insurance

Due diligence on the part of the property developer is essential and should begin before purchasing land or property for development. It’s important to check the proximities of any nearby land or properties, particularly with the height and dimensions of the development in mind.

This can require complex calculations and physical inspections. It may also be necessary to check the title deeds. Even if the land is vacant, a right to light may still exist if there was a building on the site which has since been demolished.

If there’s any risk of right to light issues arising, you should consider renegotiating the purchase price and reconsidering your financial plans for the project. In some cases, you may decide not to proceed with the purchase.

Right to light insurance policies

If there’s a chance your development may be at risk due to r ight of light issues, you should consider right to light insurance. The earlier you do this the better; ideally it should be well before you know of any issues. Once you’ve been made aware of a specific right to light issue, it will be much harder to get appropriate coverage.

A right to light indemnity insurance policy will protect against potential claims and, depending on the policy, can cover a few different costs. These normally include:

• the legal costs of either settling the case or defending the case in court,

• compensation settlements and payments,

• abortive design and construction costs,

• loss of land value if the development cannot proceed.

In order to obtain cover, you will normally need to provide a right to light report with details of the location and development.

The consequences of not taking out right to light insurance

Right to light issues are not uncommon; the courts will form a robust opinion, based on close scrutiny of the associated factors. As a developer, right to light issues introduce a distinct risk to your project. The need to mitigate or eliminate that risk cannot be ignored; a development can end up being altered or abandoned, incurring significant financial loss. A right to light insurance policy can be the difference between a project’s success or failure.

Call Email Visit 020 7623 4957 info@kerrylondon.co.uk kerrylondon.co.uk