With land in short supply in our towns and cities, property developers and town planners are acutely aware of the need to construct high rise buildings – often on small, overlooked plots of land to make a development profitable.
Notwithstanding the struggle to secure development funding and all necessary planning consents which increases overall costs, developers are also being stung by claims that the construction of these high rise buildings are blocking out the natural light reaching neighbouring properties.
Compensation or Injunction
Rights of light (gained either expressly or by long use) allow a building to receive adequate natural light through windows in a building across land owned by third parties. Builders are well aware of these rights but previously weren’t too concerned, provided the cost of compensating neighbours had been factored into the overall cost of the development.
Neighbours would not normally be able to stop the development if the builder was prepared to adequately compensate them, except where the developer had acted particularly deviously or unconscionably. However in recent years the pendulum has swung against builders.
The courts are far more willing to grant injunctions preventing buildings from blocking out natural light when developers continue to build – despite protestations from their neighbours – knowing full well that any profits will far outweigh any compensation payment to third parties.
Even if reputable builders complete a development before a neighbour decides to make a claim for loss of light, it is possible for that neighbour to secure an injunction to force a re-modelling of the building, or a reduction in the number of floors in the building so as not to infringe the neighbours right of light.
What Now for Developers?
Where does this leave you if you are a developer? You could try to negotiate a waiver of the rights but be warned – a well advised neighbour will want recompense not on the basis of compensation for loss of their rights, but will be looking for a share of profits to allow your development to go ahead.
Council Intervention?
Increasingly, councils are more aware of the benefit that such developments can bring in terms of increased jobs, housing and potentially contributions that the developer may have to make toward education and recreational facilities in a local area.
In certain circumstances, councils have been known to exercise their statutory rights of appropriation under section 237 of the Town and Country Planning Act 1990 to extinguish rights which would otherwise prevent development, although these powers only seem to be used in central urban locations.
If you think the natural light to your property is being affected by a neighbouring development, it is important that you seek legal advice as to the nature of any rights benefiting your property and act quickly and fairly in notifying the builder of your concerns.
Sanjeev Shah – Head of Commercial Property at Rollingsons Solicitors
