Guides & Advice

Rights of light - the hidden costs of building up, up, up!

Rights of light - the hidden costs of building up, up, up!

As Birmingham City Centre continues to see more plans being put forward for tall, striking buildings, Broad Street is being dubbed Birmingham’s Skyscraper Alley, with at least five new mixed-use towers proposed for Broad Street, and more proposed for the Eastside too.

Many will find the proposals exciting and they undoubtedly show an impressive resilience to the current difficult circumstances we all find ourselves in. There can however be hidden costs and consequences of looking up to the sky, including rights of light.

What are rights of light?

Put simply, rights of light are easements of natural light passing over someone else’s land for the benefit of windows/doors in a building. The rights can arise from enjoyment of light for 20 years and the rights are based on fairly technical areas of law.

Often, such rights are regarded as complicated and relegated to the ‘too hard pile’. However this can prove hugely costly for a developer, who has perhaps ‘closed its eyes’ and ‘hoped for the best’, or even for those who have taken a calculated risk. Similarly, owners of adjoining or nearby buildings risk allowing significant property rights being rendered worthless if they do not raise their concerns and, if necessary, follow up by issuing court proceedings in time.

Light obstruction notices

Rights of light/potential rights of light can be interrupted and light obstruction notices are a very handy device under the Rights of Light Act, 1959, used by developers to put up a ‘notional’ obstruction with a neighbouring owner’s rights of light (sometimes years before planning permission has been sought and well before a spade is put in the ground).

If the notional obstruction remains unchallenged on the register for one year from registration, the developer will have either successfully stopped the acquisition of a right to light for a further 20 years or, if an affected owner already had 20 years’ use of the light, made it considerably harder for that owner to bring a claim.

However, making best use of light obstruction notices (obtaining, registering and fending off any suggestions of a challenge for one year) can be tricky, and not for the faint hearted.

When to use light obstruction notices

The best time to deploy light obstruction notices is quietly before any suggestion of development hits the press. At that point, developers are hoping that an innocuous looking envelope containing a notification to adjoining owners of such a notice will go unnoticed or, more frequently even if noticed, will not be formally challenged before it has been on the local land charges register for one year.

Conversely, land owners will routinely become aware of developments close to their premises, which might at first glance raise a few eyebrows, but not much more. However, it might be worth tasking someone with assessing the impact of the development on your property to prevent, what can be, a permanent interruption of your property rights.

Perhaps, unsurprisingly, the courts’ have regularly accepted that all property rights are a valuable asset, which can be protected from infringement to preserve the value of property. If rights of light have arisen, and have not been successfully managed by use of a light obstruction notice, a developer risks an injunction being obtained by an adjoining owner who can show a significant infringement of its rights.

Each case will turn on its own particular circumstances. However, the courts have shown themselves willing to make an injunction, effectively requiring a developer to cut back its building (even after it has been built), or to pay damages ‘in lieu’ of an injunction - which can include an element of the developer’s profit arising from being allowed to keep its building intact!

Beaumont Business Centres Ltd v Florala Properties Ltd

In a recent rights of light case, Beaumont Business Centres Ltd v Florala Properties Ltd (March 2020) which has received widespread attention, we’ve been reminded by the High Court that the primary remedy for an infringement of a property right is an injunction. The fact that the building is already completed, or mid-build, has not prevented courts from granting an injunction.

Here, the Court was persuaded that there was evidence, that by virtue of the reduction in light, Beaumont’s premises had been made “substantially less comfortable and convenient than before”. Consequently, it was prepared to grant an injunction for the new building to be cut back to avoid the nuisance.

It was then for the developer to demonstrate to the court why an injunction should not be awarded and that, using its discretion, the court should award damages in lieu of an injunction. In this case, if Beaumont was not entitled to an injunction in the first place, common law damages would have been £240,000.

However, where the court was persuaded to grant an injunction, as an alternative to an injunction, Beaumont was entitled to damages in lieu of an injunction - which were based on the profit to the developer in being allowed to retain the building as developed, without having to cut it back. In this case, those negotiated damages were assessed at £350,000.

Communication is key

This case is widely being considered to be a warning to all parties to engage reasonably with each other before and during any proceedings. The decision to award an injunction was, to a large degree, influenced by the fact that the developer on this occasion went ahead with the development, knowing of the potential concerns raised by Beaumont and the risk that it was taking. It had acted in a high-handed, or at least an unfair, and un-neighbourly manner.

The lesson to take away must be for all parties to keep rights of light firmly on the agenda. This way, developers will not be surprised by court proceedings that could stop the development in its tracks, or, even worse, require further work to remove parts of the building and adjoining owners taking the necessary steps to protect their property rights being significantly infringed.

The Florala case also makes it clear that the Court expects parties to behave in a neighbourly way, and that affected parties should make their concerns known at an early stage - and avoid any suggestion that they’re simply in it for the money!

While this case does not represent new law, it does serve as a timely reminder that these matters are far from routine and, if mishandled, can be very costly indeed for the wrongdoer both in terms of time and outcome.

New permitted development rights from 1 August
From 1 August 2020 a new permitted development right is being introduced, allowing an additional one or two storeys to be constructed on top of existing blocks of flats. Read more about the changes here. For advice and support on the new ‘upward extension’ permitted development rights, or any other planning query, contact a member of our planning consultancy team, Marrons Planning. 

Contact us

Our experienced property disputes team can help you manage and resolve any issues you face quickly and efficiently, whether you’re a developer or an adjoining owner.

If you have concerns around property rights, including rights of light, then speak to Pia Eames by phone or email, or James Fownes by phone or email.  

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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