Building Up - Chapter 7: Let there be light (or better still hope there isn't...)

Whilst many characteristics of an airspace development are not dissimilar to any other type of development, one aspect that airspace developers need to consider early on is whether their proposed development has any rights of light implications. This is particularly important as it can be one of the greatest constraints to a development if not considered and managed early on in the program.

Here, we take a closer look at the potential impact of rights of light and options available to developers.

A right of light is a right (easement) to enjoy natural light that passes across another person's land and enters apertures (such as skylights or windows) in an adjoining building.

More often than not, airspace developments will be undertaken in high density, urban locations, and therefore, the subject building will be surrounded by other properties which may have, over time, acquired rights of light over the building being developed. It is also important to note that if a building that has a right to light is redeveloped, it does not necessarily abandon its right to light.

The existence of rights of light poses a potential risk of an injunction to restrain the development or require it to be "cut-back".

So how would a developer know whether their proposal will infringe another party's right to light?

• The first step is to appoint a specialist rights of light surveyor to undertake a review of the proposed development, carry out an analysis of surrounding buildings and calculate any likely costs and compensation that may be payable to adjoining owners as a result of an infringement of their rights of light.
• Whilst a rights of light survey can provide an excellent starting point for potential right of light issues for a developer, we would always recommend that a solicitor undertakes a title review and local searches of the affected properties. It is not only freehold owners of surrounding properties that can acquire rights of light; the tenants of those properties may also have acquired rights of light over the building being developed. There may be existing registered Light Obstruction Notices which can affect the position.

What if the proposed development will infringe someone's rights of light? Can the development still proceed?

• Armed with professional advice, the developer needs to decide what action (if any) to take- there are several options available:
  • take no action
  • take out rights of light indemnity insurance
  • negotiate with the affected parties
  • serve a light obstruction notice.

It is important that specialist professional advice is sought before deciding how to proceed. For example, if following unsuccessful negotiations with affected parties a developer seeks to take out insurance, some insurers may refuse to provide cover (or exclude that claim as a risk under a policy) on the basis that the affected parties have already been put on notice that their rights have been breached.

Insurance brokers will require professional reports in order to be able to scope cover. Sometimes an insurer will allow a developer to negotiate terms with affected parties, but this is usually dealt with on a case-by-case basis.

Look out for our next post when we look at the Party Wall etc. Act 1996 and how this ties in with airspace developments.