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Don't let rights of light cast a shadow over your development

Just after UK wide lock-down in March 2020 the high court issued an important decision for developers in respect to rights of light.

Beaumont Business Centres Limited v Florala Properties Limited was the first decision since the ruling of the Supreme Court in Coventry v Lawrence back in 2014 to declare that an injunction requiring demolition of an interfering part of a building was an appropriate remedy in a rights of light case.

The decision is likely to be of concern to developers who had previously hoped to rely on the assumption that they would be able to agree a sum of damages in lieu of an injunction being granted.

Of even further concern for developers is that in this case, an injunction was deemed to be appropriate even where construction had already been completed and where the building was badly lit to start with.

So what should a well advised developer seek to do in order to avoid being on the wrong end of a rights of light claim?

Firstly, prior to the first contractor even entering a development site where there is to be an increase in height or change in layout to any existing buildings or a new building erected, a rights of light surveyor should be instructed to carry out a review. The surveyor will be able to identify potential risk areas and usually rank them in order that a developer can consider where best to focus further resource.

Secondly, it may be appropriate, particularly (but not solely) where a developer or their group own some of the land surrounding the development site, to obtain a legal review of the title documentation. This can assist with eliminating or reducing risk for the developer where for example, occupational leases contain sufficient reservations which prevent a tenant from obtaining rights to light. Where this is the case a developer may only need to approach a freeholder to obtain a release rather than dealing with each and every tenant in the block.

Thirdly, a developer may wish to involve their insurers. One option where it is acknowledged that an adjoining owner enjoys rights to light, is to insure against the risk of that party bringing a claim. Whilst this does not prevent such a claim, at least the developer would be able to recoup some of the costs.

Finally, and possibly most importantly, developers should engage with their architects and design consultants over the potential issues with rights to light. It can often be possible with modern engineering to improve design so as to minimise loss of light to adjoining buildings.

16 November 2020

This article first appeared in Property Week in November 2020.

 

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