Rights of Light - dark days ahead for developers?
Despite our fair island containing some of the most glorious countryside and open space, the majority of us insist on living in a single corner. There are, no doubt, various complex reasons for concentration of our population, but as our numbers swell (along with sea levels) there is mounting pressure to generate more and more living and working space from the same portion of mud. The pressure is pushing land use in a very clear direction - skywards.
Of course, the UK has its fair share of ancient tall buildings - for example, St Pauls, the Satanic Mills and the Four Graces in Liverpool - but never in our history has there been such pressure to maximise land use. Moreover, in this climate, landmark buildings, offices and multi-storey residential buildings are becoming ever taller to accommodate more people on the same footprint. Planning authorities are also acutely aware of their duty to facilitate the provision of new offices and homes to meet the targets handed out by central government.
While modern methods of construction help architects to maximise height, neighbours more frequently find that these constructions maximise their loss of light.
It is established law that we all have a right to receive daylight through the windows of our homes and offices. A right accrues in a number of ways, being either expressly granted when the building was first built, or accumulated over time. When compared with other property rights, there have been relatively few high-profile attempts to enforce rights to light.
So, why are the courts beginning to fill with applications for injunctions to stop interference with light? Well, the typical building height is on the up - developers couldn't build the structures that we now see springing up all around us sufficiently cheaply to warrant their use in anything other than landmark projects. Add to this the fact that many disputes involving issues of light have, in the past, been settled long before court because the degree of interference caused to the light in question was relatively small.
Rulings in a number of reported cases have highlighted the right to receive light. This is good news for the individual; many of us are oblivious to our ancient property rights until they receive publicity in the daily paper. But for developers, commercial and residential alike, high-profile rulings of this nature are problematic; they risk hampering ambitious and well intended regeneration schemes by providing yet more ammunition to the NIMBY (Not in my Backyard) crowd.
Do these recent decisions enlighten, or cast a shadow over, developers and their looming projects?
The rulings in these cases reassert that an injunction is the proper remedy for someone whose light is interfered with. A developer who interferes with other peoples' rights to light faces the prospect of having to down tools or, in the worst- case scenario, bring down an offending building so as to re-establish the light.
This should not come as a great surprise - the draconian injunction has always been the normal means by which the courts will protect an individual's property rights. However, in legal circles it was felt there had been a shift in the courts favouring compensation as a remedy, unless the interference with an individual's light was severe. Some felt that the courts were beginning to acknowledge that developers play an important role in the regeneration of our towns and cities. In fact, the courts have clarified that unless a developer has acted entirely reasonably throughout a project, they will be held accountable. Developers will not be allowed to prevail over individuals' rights to light by assuming that the court will allow developers to pay for the interference post facto with compensation
Rulings such as these frequently serve a different cause - that of the NIMBY brigade, intent either on protecting their own back yard without regard for the greater good served by developments or, worse, ransoming developers for their hard-earned profits.
Even the compulsory purchase route may not afford developers the protection they need. A recent ruling now suggests that while there is statutory protection from an injunction during the construction phase of a development, the subsequent use of a development which interferes with an individual's rights to light will constitute an actionable interference for which an injunction or compensation may be sought by individuals affected.
So can insurance help? Certainly, insurers are not going to insure a behemoth that will plunge neighbouring properties into pitch darkness. But, insurers can assist with those projects in which the degree of interference is not entirely unconscionable but the developer cannot risk the time, money or uncertainty of entering into lengthy negotiations with scores of adjoining owners, some of whom may have an agenda far less well-meaning than that of a developer looking to invest in an area and help regenerate it by providing new and exciting living and working space.