Changes to the National Planning Policy Framework announced last month are designed to help meet the target of 1.5 million new homes by 2030 that the government has set.
Areas with the greatest issues of unaffordability are being assigned higher housing targets. As these are generally urban areas, which also have the least developable space, the reforms also aim to make it easier for developers to ‘build up’ on top of existing buildings.
“While it can be straightforward and cost-effective to develop on top of an existing block of flats using modular construction methods, developments that ‘build up’ can fall foul of ‘rights of light’ enjoyed by the owners of neighbouring properties,” said Mustafa Sidki, commercial property partner at law firm Thackray Williams.
“The previous relaxation of planning laws in 2021 created some rights of light disputes, and we anticipate that this will escalate as councils and developers push to hit the government home-building targets in already crowded urban areas,” he said.
Right of light is established if a property has enjoyed the light for 20 years without interruption. Once established, a right of light entitles the beneficiary to receive sufficient natural light to allow a room or space to be used for its ordinary purpose. Rooms used for different purposes will be entitled to receive different levels of light, for example, a greenhouse requires more light than a store room.
To prove a right of light infringement, a claimant has to demonstrate that any loss of light amounts to a nuisance and that their property has been made substantially less comfortable and convenient than before.
“We have an ongoing case arising from the modular construction of penthouse apartments on top of existing blocks in Bromley and Beckenham, made possible by the 2021 relaxation of planning laws,” Sidki said.
“The developers in these cases obtained planning permission and utilised rights they enjoyed in their leases to develop roof spaces,” he explained, “but they did not consider that there could be any loss of light to neighbouring properties. It’s an oversight that can ultimately prove both time consuming and costly.”
However, it is possible to manage rights of light infringements proactively, so that a planned development can go ahead with the agreement of neighbours, he said.
The 12-storey, £500m extension of the British Library, due for completion in 2029, is an example of this. The developers, Stanhope and Mitsui Fudosan UK, approached the owners of neighbouring properties that might suffer a loss of light. Technical surveys were conducted with their agreement to understand how the development might impact the light enjoyed, with an offer of compensation being made by the British Library and the developers.
“The offer has been made as a gesture of neighbourly goodwill, without any admission of actionable injury,” said Sidki, who is representing owners of flats affected by the development. “The British Library and the developer also agreed to pay our client’s legal and surveyor fees. We instructed our own surveyors to review the developer’s technical analysis using computer modelling to quantify the right of light being lost, which enabled us to negotiate an acceptable compensation for our clients, which in turn has enabled this flagship development to proceed.”
An alternative approach for developers to facilitate building up while minimising the risk of rights of light challenges is to serve a ‘light obstruction notice’, Sidki suggested, which creates a notional obstruction (before any construction work actually happens) that is registered as a local land charge. Affected parties then have one year in which to object.
This can flush out potential objections to development in advance and eliminate possible objectors who fail to respond within the 12-month timeframe. Light obstruction notices can also be used tactically, to prevent a building that is nearing 20 years of age from acquiring prescriptive rights of light in the first place.
Right of light indemnity insurance against potential claims is also an option. While policies usually last in perpetuity and benefit successors in title, the insurance is not generally available if negotiations over potential loss of right of light have already begun.
“The relaxation of building-up restrictions will inevitably mean that some neighbouring properties in dense urban areas will suffer a loss of light, said Sidki. “We are braced for more of these cases as the construction sector starts delivering on government house-building targets.
“The worst-case scenario for developers and property owners is that you could be ordered to remove the extension, but handled properly it is possible for developments to proceed with right of light issues addressed and managed in advance.”
