13 minute read
Rights to Light
GIA Surveyors (GIA) has worked on a range of iconic and prestigious developments including Battersea Power Station, the London Shard and the American Embassy in the UK, alongside leading architects, planning consultants, legal experts and developers.
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Now, the firm is seeking to meet ‘the growing and immediate demand for experienced Daylight/ Sunlight and Rights of Light consultants in Ireland following the relaxing of building heights, as well as increased density and other forms of intensive development that are currently being undertaken’. Newly opened in the Capital, the company plans to grow its Dublin-based team across 2021/2022.
‘Good urban design is essential in supporting the economic, social, cultural, and sustainability goals of Ireland’s cities and is integral to ensuring that Dublin maintains its competitive edge as a place to live, work and play,’ says Kevin Francis, managing partner, GIA Ireland. ‘However, Rights of Light disputes are growing more common in larger cities. While Ireland has begun to slowly break the cycle of low-density buildings in Dublin, Cork, and other areas, Rights of Light is now becoming an important consideration for developers and other key stakeholders. ‘A lack of readily available and often contradictory information has seen Rights of Light consulting only being called upon when an issue arises.
Costly
‘This can prove to be costly for developers, funders, and end-users, and can lead to delays, expensive legal
Putting light on the subject
GIA Surveyors (GIA), a specialist multi-disciplinary surveying and design consultancy recently announced the launch of its new Dublin office. Over the past twentyfive years the company has amassed significant experience in the area of Daylight/Sunlight and Rights of Light. Kevin Francis, managing partner with GIA Ireland, spoke with Construction Management Ireland.
costs and in the worst-casescenarios, a cease to the build.’ So, let’s go back to basics with the Right to Light; is it something we all have as individuals?
ABOVE: Kevin Francis
‘It is not an automatic right in Ireland,’ says Kevin, ‘but in simple terms a right to light is an easement.
‘It is a property right – a right which exists in favour of a property. And obviously the owners of the property will, by extension, benefit from that right.
‘A right to light is a
negative easement.’
A negative easement? ‘Meaning it’s not a right for you to do something but a right for you to stop someone else from doing something.
‘It’s a right to receive light through an aperture in a building and to stop someone interfering with it.’
How do we acquire it? Kevin explains: ‘There are criteria. And it is worth pointing out here that there are a lot of crossovers form UK law which stems back to the 1832 Prescription Act.
‘In Ireland the law changed in 2009. There was a piece of legislation called Land & Conveyancing Reform Act 2009.
‘The intention of the Act was to simplify how easements and property rights can come about.
‘It did a number of things. Fundamentally it changes the prescriptive period of twenty to twelve years in Ireland.
‘That’s the amount of time you’d have to demonstrate you enjoyed the uninterrupted access to the light. That dates from December 2009.
Interesting time
‘It is a really interesting time to be having this conversation because, in Ireland – as the ‘09 act is effectively repealing the 1832 act and this twentyyear criteria – there is a transition period of twelve years which comes to end at the end of this year.
‘The old laws are gone and new are fully effective then.’
The other thing about the ‘09 Act is that, unlike in the UK, there is an opportunity within the Act to go and register your right, says Kevin.
‘The ability to register the rights acquired through the old 20-year rule will expire on 30 November this year.
‘The ability to register your rights through this act is effectively allowing people to protect rights acquired through the old rules. After 30 November, the new long user period of twelve years will apply to any rights accrued or in the process of being accrued from December ‘09.
Hot topic
‘In the UK Rights of Light are a hot topic and we are one of the first names on the developer’s team sheet,’ adds Kevin. ‘Because they want to understand the issues.
‘With a Right to Light Survey report,’ he says, ‘we can show clients where the issues are and how to resolve them.
At the end of the day, ‘each development site in any dispute,’ says Kevin, ‘will turn on its own merits.
‘If an issue goes the whole way to court the judge will ask a number of questions of course. But recently, in the UK, a big area has been to do with the conduct of the parties to a dispute.
‘So it is one thing to say: “the developer is going to build in a way that will block light,” but how has the developer conducted themselves?
‘Have they knowingly reduced the light (and therefore value) to a neighbour’s property and remained silent, or have they approached their neighbours and said: “I know I’ll remove your light and profit from that so can we do a deal?”’
Good conduct
Judges have been really hot on developers showing good conduct, says Kevin.
‘If a developer does not show good conduct and tries to build in ignorance of the fact they are walking over rights, a judge can look poorly on that.
‘And it might be that, instead of a financial settlement by way of damages, a judge can award an injunction to stop the development, or even an injunction to make the developer tear the building down.
‘The courts are being abundantly clear on what they want to see – a proactive approach from developers, a demonstration of good conduct.
‘At the end of the day a lot comes down to how they approach it all; how they demonstrate good faith, good conduct and preparedness to work with others.
‘It’s about being a good neighbour and developer and trying to cover as many bases as you can.’
Any site
One thing is for certain, says Kevin. ‘Rights of Light can be one of the greatest constraints to developmental potential.
‘Issues can arise on any site too’, he cautions, ‘not just with sky scrapers – and that is a point worth remembering.
‘One brick course can interfere with a right to light.’
Aright to light is a right which is enjoyed over neighbouring land which allows a landowner to receive light through defined apertures in buildings on its land. Easement
It is a form of easement which can be acquired by express grant, implied grant or by prescription.
Historically, a right to light was acquired by prescription under the Prescription Act 1832.
Prescription allows for the creation of an easement which is akin to a formal grant on the basis of long enjoyment for a period at least twenty years without interruption (unless defeated by oral evidence) or forty years for a right to be absolute or indefeasible.
Section 3 of the 1832 Act specifically applies to easements of light and provides that any claim to the use of a right to light which is enjoyed for a period of twenty years without interruption shall be an absolute and indefeasible right.
Distinct from other easements, there is no requirement to establish user as of right in relation to easements of light.
Abolished
Section 34 of the Land and Conveyancing Law Reform Act 2009 abolished prescription at common law and acquisition on the basis of the doctrine of lost modern grant.
A key aspect of the 2009 Act was the reduction of the requisite period of use to a fixed term of twelve years.
The 2009 Act provided that a court order could be obtained within a transitional period of 3 years in relation to a right to light enjoyed prior to 1 December 2009.
By virtue of section 38 of the Civil Law (Miscellaneous Provisions) Act 2011, that transitional period was increased to twelve years.
Effect
The effect of this increased transitional period is that a right to light claim acquired by prescription prior to 1 December 2009, or in the process of being acquired, can still be established until 30 November 2021.
Additionally, section 35(1) of the 2009 Act, as amended by section 37(1)(b) of the 2011 Act, states that an easement by prescription may be acquired pursuant to section 49A of the Registration of Title Act 1964.
This allows for an application to be made directly to the Property Registration Authority, however this will only be appropriate if the right is not contested by a third party.
Construction lawyer Georgina Wallace (left) of Ronan Daly Jermyn writes here on the law relating to the right to light, case law in this area, and the relevance of this topic for developers Let there be light!
The impact on development: buyer beware
Claims of a breach of this right typically occur where a claimant argues that the building of a structure on their neighbour’s land materially impacts on a person’s right to natural light.
For a landowner to be successful in such a claim, they would have to prove that there was a substantial diminution of light through particular apertures as a direct result of the adjacent landowners building activities.
It is crucial that any developer is aware of the serious implications which this right may have on the future development of land.
At planning stage, an objection could be lodged which could halt a development in its tracks at a significant cost to a developer who may have expended significant amounts of money in purchasing the lands and engaging professionals to create site plans/prepare documentation for planning applications.
Significant risk
There is a significant risk of neighbouring landowners instituting injunctive proceedings at any stage during the build or, more problematically, after
the structure is complete.
A developer may be forced to apply for a new planning permission with a reconfigured development so that the neighbouring landowner’s rights are not infringed.
In worst case scenarios, developers may be forced to demolish structures already built or pay significant amounts of compensation to compensate landowners for the decrease in light.
This issue not only affects developers; it can impact on any buyer who intends to build on a site in the vicinity of another landowner.
Case law
There is a limited Irish authority in this area however recent persuasive case law in the UK has highlighted the obstructive nature of such claims.
In the case of HKRUK II (CHC) Ltd vs Heaney [2010] EWHC 2245 (Ch), an injunction was granted against a developer who infringed a neighbour’s right to light despite the fact that the development was complete and the owner of the affected building delayed in taking action for 18 months.
The court held that an easement of light existed through the windows of the defendant’s building, the former head office of the Yorkshire Penny Bank.
The claimant built an additional two floors which obstructed the defendant’s right to light. £225,000 was awarded to the defendant to solve lighting issues within his building and HKRUK II (CHC) Limited was ordered to demolish the upper two floors of their building.
The demolition did not subsequently arise and the matter was settled out of court.
In Andreas Pavledes & Anor v Theodoros Hadjisavva & Anor [2013] EWHC 124 (Ch), the court determined that it would be just in the circumstances to grant declaratory relief to the claimants despite the development not being carried out.
The defendants obtained planning permission to build a twostorey addition at the rear of their property and a one-storey addition at the front of their property.
In 2009, the claimants’ surveyor informed the defendants that he had undertaken a right of light assessment which proved that the proposed development would infringe the neighbouring landowners’ rights and sought that the development not be carried out.
There was substantial correspondence between the parties and the defendant contended that the right to light would not be infringed by the development.
Proceedings were issued in March 2012 seeking a declaration as to the existence of the right to light and an injunction to restrain the defendants from interfering with it.
In its defence, the defendants admitted, on foot of reviewing the claimant’s report, that the development would interfere with the claimants alleged right to light ‘on the assumption that the technical analysis was correct’ and stated that they would not carry out the development ‘for the foreseeable future’. The court held in granting the relief that there was nothing to prevent the defendants from re-asserting their prior position and carrying out the development in the future and therefore granted the relief.
Another recent case in this area is Ottercroft Ltd v Scandia Care Ltd & Anor [2016] EWCA Civ 867. Ottercroft Limited and Scandia Care Limited, which was controlled by Dr Mehdad Rahimian, were the owners of adjoining properties in Buckinghamshire.
A dispute arose between the parties arising out of Scandia Care Limited’s proposed erection of a metal staircase in place of an existing wooden one.
Ottercroft Ltd claimed the development infringed their right to light and sought an injunction to restrain the development. Dr Rahimain had provided a personal undertaking not to interfere with alleged right to light to the ground floor window and signed a similar undertaking ‘for and on behalf of Scandia Care’.
Despite the undertakings the defendants continued with the works.
The court held that the staircase had infringed Ottercroft’s right to light and was also not built in accordance with planning.
He granted a mandatory injunction to alter, replace or remove the staircase despite the damage being relatively minor in nature.
A core factor in granting the injunction was the manner in which Scandia Care Limited had acted, in an un-neighbourly fashion by continuing with the works in breach of their undertaking. This decision was upheld on appeal. ‘recent persuasive case laW in the uk has highlighted the obstructive nature of such claims.’
Right to light insurance
Right to light insurance has become increasingly popular in the UK and though not so popular in this country we will undoubtedly see a rise in the use of such insurance policies in the coming years.
Although right to light insurance policies are not common in Ireland, they may be found in select specialised insurance brokers.
It is advisable for a landowner to engage a surveyor to provide a right to light report pre-planning so that any potential issues can be addressed at the outset of any proposed development.
This report can also be used to obtain insurance quotes to protect against financial liability should a claim arise.
Policies
Right to light policies can cover legal costs in addressing claims, settlements or damages awarded, demolition or rebuilding costs and any loss in land value.
In the UK, Fairweather Insurance Services Limited have estimated that right to light insurance premiums start at approximately £3,000 and could typically cost £10,000 plus for a £1,000,000 house development.
The cost of maintaining such a policy will of course need to be weighed against the cost of the development and its potential demolition and reinstatement costs on a claim being successful.
Many thanks to Georgina Wallace and to Irish Legal News: https://www.irishlegal. com/ where a previous version of this article originally appeared. For more stories related to construction law check out www. irishlegal.com/tag/construction
