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Author: Russell Price
Date: 21 February 2018
Chelsea F.C. now know what many commercial developers have learnt to their cost over the past decade or so - that right to light issues can have a significant impact on development schemes – especially those that are city based.
Neighbours can obtain court orders, known as injunctions, to prevent interferences with their rights to light and be awarded significant damages to compensate them for the loss of their rights. In some cases, these claims can destroy the viability of a development scheme or require a project to be altered significantly.
Over the years, various statutes and cases have sought to clarify how and when rights to light can arise or be extinguished and what should be the appropriate remedy for interference with the rights. The issue of rights to light remains an uncertain and usually highly contentious area of risk for most development schemes.
What is a right to light?
A "right to light" is an easement that gives a landowner the right to receive light through defined apertures in buildings on his or her land.
What is not covered by a right to light?
However, many of the above are public law considerations for the grant of planning permission.
A family’s dispute with Chelsea F.C. regarding their right to light
The Crosthwaite family had taken out an injunction in May last year, arguing that the proposed new Chelsea football club stadium would seriously reduce the amount of natural light that would reach their property.
The Crosthwaites have lived in their west London cottage for 50 years and it is so close to the Premier League club’s ground that you could almost kick a football from their doorstep onto the pitch.
The new stadium was granted planning permission one year ago and has been signed off by the Mayor of London, but Chelsea have called on the local council to intervene and take advantage of planning laws to stop the injunction, which jeopardised the planned development.
What is the family’s argument?
The Crosthwaites own a large house in an expensive part of west London. The family has said via their lawyers that they are not opposed to the redevelopment of the stadium, but have suggested the east stand in question could be “cut-back or re-designed so as not to cause interference”.
The family also believe Chelsea’s attempt to effectively sidestep the injunction with the help of Hammersmith and Fulham council is not in the public interest and possibly illegal.
Their house sits in the neighbouring Royal Borough of Kensington and Chelsea, which they say has been firmly opposed to the development.
How have Chelsea responded?
Premier League champions Chelsea have outlined that the planning and development of their new stadium has been above board on every aspect.
A public consultation of 13,000 local residents earned 97.5% support, and they have paid compensation to other homeowners who have been affected by losing their ‘right to light’.
Chelsea also claim that the new stadium will “further enhance the economic, cultural and social services they provide”, including £6m worth of educational programmers, a £7m improvement to local infrastructure and an additional £16.3m spent in local businesses as 2.4 million people visit the area annually.
That forms the key argument in the part of the law being disputed – section 203 of the Housing and Planning Act 2016.
Developers must tread very carefully as to how and when they deal with the potential impact of rights to light claims on their scheme. The injunctions that can be awarded can result in the developer having to cut back their proposed scheme and/or stop work altogether.
A neighbour who may be entitled to an injunction is under no constraints as to when it must issue proceedings for an injunction except that the courts will generally not assist a party who seeks an injunction after the event, if it can be shown that they had the opportunity to act sooner.
Possible Changes to the Law
There are two significant changes to the law being proposed by the Law Commission:
2. A Notice of Proposed Obstruction procedure by which a developer can put its neighbours on notice as to the proposed development. Following service of the notice, the neighbour must issue injunction proceedings within eight months otherwise it will only be entitled to claim damages for any interference with its rights to light.
Since the proportionality test is very similar to the approach previously commended by the Supreme Court, it seems highly likely that the courts may be inclined to adopt a similar test in upcoming cases even if the adoption of the test is presented as part of the courts’ general consideration as to how to exercise their remedial discretion. This may mean the courts are less likely to award injunctions in the future but developers should remain vigilant as there are a number of criteria for the courts to apply and the existence of artificial light and planning consent are unlikely to tip the balance in favour of damages in every case.
Once adopted, the proposed changes should enable developers to manage rights to light risks with greater certainty. Some industry commentators have suggested that the NPO procedure should be regarded as a last resort in the event that negotiations fail as it can appear to be aggressive. However, it seems to this author that, if and when available, the NPO may in fact be a sensible step for developers to take at an early stage so they can establish which neighbours are in fact going to seek injunctions and which will settle for financial compensation.
While we await the introduction of the recommendations, parties must continue to deal with rights to light matters under the current regime and take care to engage a proper and effective rights to light strategy. Different schemes require different strategies. The key is to be vigilant, aware and flexible.
Russell Price - Published 21st February 2018
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