By John Spence, Partner
We are currently witnessing unprecedented amounts of development everywhere across the South East of England. However, getting over the legal and planning hurdles for developers to get a project off the ground can still be difficult. Many developers overlook the fact that although they have acquired a site, have all the funding in place, and received planning permission, private rights of light enjoyed by adjacent property owners could still put a project at risk.
No longer are such rights of light claims confined to developments in London and other cities. Developers, large and small, ignore rights of light at their peril. Without the right professional advice (from solicitors and light experts) and insurance arrangements in place, rights of light claims can delay and add substantial expense to a development project.
A right of light is a valuable property right, known as an easement, to enjoy natural light that passes across another party’s land entering existing apertures in buildings such as windows and skylights. Such rights of light may be expressly reserved in a property owner’s title deeds. Alternatively, such rights can arise over time under the legal principle of ‘prescription’, where the light has been continuously enjoyed without interruption for a period of at least 20 years.
Any substantial interference with a property’s light can result in the property owner seeking an injunction to abate the nuisance, sometimes halting building works or even requiring buildings to be partially demolished, or significant damages in compensation.
Developers are well advised to get professional advice on rights of light at an early stage of their project to either try and defeat any claims or minimise the risk of claims for compensation.
For larger projects, developers have a statutory right to apply for Light Obstruction Notices (LONs) preventing neighbouring owners of new buildings from acquiring 20 years enjoyment of light. However, LONs can also be used to defeat existing rights of light of older buildings, as owners of adjoining buildings served with LONs must assert their rights by issuing proceedings within one year or lose their rights.
Indemnity insurance can sometimes be obtained, both at a pre-planning and post-planning stage, to cover against the costs and expenses of defending or settling any claims brought against developers for injunctions and damages for interference with neighbours’ rights to light.
If neighbouring owners are assessed to enjoy rights of light, then settlement negotiations can often result in adjoining owners formally releasing their rights of light for all time, in return for modest compensation pay outs; albeit tax advice is needed in such cases.
By considering these issues at an early stage, developers will avoid the risks of being held to ransom by light claims.
If you would like to discuss any of the issues mentioned above or otherwise, you can contact John on 01892 515022 or js@cooperburnett.com
