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.

 

Permitted development rights from 1 August 2020: additional storeys can be built on top of existing blocks of flats

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.

This is alongside engineering operations, replacement or installation of additional plant, construction of safe access and egress and construction of ancillary facilities, where necessary.    

The ‘upward extension’ measure is being introduced to increase housing delivery across the country in a bid to protect ‘greenfield’ land.  

What are permitted development rights? 

Permitted development rights allow you to make certain changes to a building without needing to apply for planning permission.  

Are there any restrictions? 

The permitted development right is limited in the buildings in which it can be applied to. The right will only apply to blocks of flats that: 

  • are detached; 
  • are at least 3 storeys in heightand 
  • were constructed between 1 July 1948 and 5 March 2018. 

It is important to note that the right does not apply to listed buildings, scheduled monuments or buildings within the curtilage of such. Nor does it apply to buildings within Conservation Areas, National Parks and the Broads, areas of outstanding natural beauty, or sites of special scientific interest.  

If buildings do fulfil all of the criteria above, then an ‘upward extension’ can be built under permitted development. There are, however, still restrictions on what can be built out.  

A full copy of the legislation can be found here. 

To summarise, the restrictions are as follows: 

  • The extension has to be constructed on the principal part of the building; 
  • The extension cannot exceed 30 metres in height;
  • The overall roof height of the extension cannot be more than seven metres higher than the highest part of the existing roof; and 
  • The internal ceiling height of each storey cannot exceed three metres, OR more than the floor to ceiling height of any of the existing storeys (whichever is the lesser height). 

Prior approval 

 An application for prior approval will have to be made to the Council, accompanied by comprehensive floor plans and elevations. Submitting these details will satisfy the council that the design of the proposals is acceptable, in addition to adequate light being achievable. The council will then have eight weeks to determine the prior approval application. 

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. 

Get In Touch

Pia specialises in the full range of property based disputes including management issues arising between landlords and tenants as well as disputes affecting developers. This includes as lease renewals, service charges, break notices, easements, rights of light and site assembly issues.

Written By

Published: 13th July 2020
Area: Real Estate & Planning

How We Can Help

Property Disputes

We’re known as skilled and confident litigators for all types of real estate disputes – We’ll help you weigh up the risks and rewards – and push for the result that makes good business sense.

Residential Development

Committed to understanding your commercial objectives and providing you with solutions to enhance your business, we don’t just identify problems, we solve legal issues.

Our Latest Real Estate & Planning Updates

HEIs telling it like it is – correcting false or misleading public statements

12 Apr

Education

HEIs telling it like it is – correcting false or misleading public statements

Read article Right Arrow

Shakespeare Martineau Partner Becomes A Fellow Of The Agricultural Law Association

22 Mar

Uncategorised

Shakespeare Martineau Partner Becomes A Fellow Of The Agricultural Law Association

Read article Right Arrow

Nature Capital Insights

18 Mar

Corporate

Nature Capital Insights

Read article Right Arrow

Duchess of Bedford House Case: Have We Gone Parking Mad?!

15 Mar

Real Estate & Planning

Duchess of Bedford House Case: Have We Gone Parking Mad?!

Read article Right Arrow

Our experts are here to answer any questions you might have

If you’d like to speak to a member of our team, please fill out the enquiry form. We will aim to reply to your query within 2 hours

Need to talk to someone sooner? You can call use at the number below

Call Us: 0330 024 0333