Yudu - RIBA September 2011

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.