98
Intelligence | Practice
LEGAL
Rights of light has moved up the agenda, forcing architects to settle potential disputes with neighbours at the start of design for a project, writes Stacy Sinclair
ILLUMINATING TALE
RIGHTS OF LIGHT legislation is an increasing concern for developers and architects alike, forcing parties to consider and deal with these issues right from the outset of the design. This stems from the case of HKRUK II (CHC)
v Heaney. In September 2010 the High Court found that a developer who refurbished a 1980s building in Leeds had infringed the rights of light of a neighbouring commercial property.
Roof extension In October 2007, before commencement of the construction works, the developer notified the owner of the adjacent building of his intention to redevelop the property, which included the addition of two new floors on the top of the existing building. No agreement was ever reached between the parties. Works began in February 2008 and were completed in July 2009. That August the developer applied to the Court for a declaration that it was not liable to the adjacent owner for any loss of amenity, who then counterclaimed for an injunction. The developer agreed that the adjacent owner had a right to light and that he had
COINCIDENCE IN PLAIN ENGLISH
interfered with that right. However, he argued that payment of damages was the appropriate remedy, rather than an injunction. Even though the development had been
completed, the Court awarded the injunction. Along with other considerations, the Court held that it would not be oppressive to grant the injunction as the infringement was not trivial, was not inadvertent as it was carried out in the knowledge that it was actionable, was committed with a view to profit, and that the developer could have very easily reduced the dimensions of the additional two floors. Granting the injunction then left open the
question as to what demolition or alterations to the building would be required. Ultimately the parties settled out of court rather than proceeding to the Court of Appeal, which would have further clarified the law in this area.
Injunction surprise Before this, it had commonly been thought that obtaining an injunction in relation to commercial buildings would be difficult, particularly where construction had been
completed. However, this case clearly provides a warning to developers and designers that these issues must be addressed early on in the design. If not, the built works could face demolition and/or a costly redesign if an injunction is granted. The implications of the Heaney case arose
at Rafael Viñoly’s Walkie Talkie tower at 20 Fenchurch Street in London. The scheme achieved planning permission, yet possible claims for an injunction and/or damages from neighbouring owners threatened it. The owner of 20 Fenchurch Street felt the Heaney decision was a risk, but the City of London stepped in.
City steps in On 11 May 2011, the City of London Corporation agreed to invoke section 227 of the Town and Country Planning Act 1990 which would enable acquisition of the land at 20 Fenchurch Street. This gives it power under section 237 of the Act to override property rights, including those of light, ending the threat of an injunction. Though rarely used, this legislation enables protection of developments which will bring economic benefit to the area. Architects must therefore be aware of rights
of lights issues at the outset of the project and either take these easements into account when developing the design, or advise the developer that to minimise its risk, an agreement must be reached with neighbouring properties before finalising the design. The fact a development has been completed does not mean the Court will not grant an injunction. n
Stacy Sinclair is with Fenwick Elliott LLP
Even if you replace a whole wall, proof of old window positions will keep your right to light
A RIGHT OF LIGHT is a right to enjoy light which passes over someone else’s land and is for the benefit of windows which have acquired this right. The most common way to
establish this right is under the Prescription Act 1832. In short, to acquire the right windows need uninterrupted enjoyment of light for at least 20 years. However, if their position, shape or size is altered, the right may be lost unless a coincidence is maintained. This means the position of at least part of the old and new windows must
correspond. Facade alterations which move windows completely are likely to extinguish the right. So when redesigning a facade
or even constructing a new wall in the position of an older one, accurately documenting the placing of the original windows and alerting the client to any changes in them is imperative. In the case of News of the
World v Allen Fairhead & Sons (1931), NoW replaced its existing building but kept no proof of the position of windows on the old building. The Court held that though there may have been some coincidence between the new and the old windows, the extent was not clear and therefore it could not establish its right of light for the new facade.
WWW.RIBAJOURNAL.COM : SEPTEMBER 2011
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117