Permitted Development and the Right of Light: What Developers Need to be Aware Of

Q: On what issues do you commonly advise developers?

We are seeing our developer clients increasingly active in the market – particularly mixed-use residential schemes. But sometimes issues will arise on a site eg. an adjoining owner may claim to have the benefit of a right to light, there may be restrictive covenant imposed on the site – which could frustrate development, and also sometimes it is sometimes necessary to secure vacant possession of the site – whether it be from residential or commercial occupiers.

Q: Have rights of light attracted significant attention in recent years?

The concern for developers is that they may be on the end of an injunction, whether that would be stopping them from getting their scheme off the ground in the first place or having started or completed the build an order compelling them to remove part of that development so that it doesn’t interfere with a neighbours right of light.

This concern was heightened by the 2010 High Court decision in the case of Henney. In that case the judge ordered that a substantial part of a new commercial building be removed because it interfered with light enjoyed by a neighbouring property. This decision left developers with the real fear that they could be ransomed by neighbouring owners and have to pay a significant sum in order to secure a release of the right of light.

Q: So is the balance of power now with the objectors?

Fortunately in March 2014, in the case of Lawrence vs Coventry, the Supreme court considered whether damages should be ordered rather than in injunction. The court suggested that a much more flexible approach should be taken towards the issue of whether damages should be awarded rather than injunction.

It should be said – there is still a danger of an injunction and they would be well advised to seek advice from both a rights of light surveyor and a lawyer to come up with the best strategy for dealing with this issue.

For further information on these matters please contact Jon Mowbray, partner and solicitor in the real estate dispute team, or one of our real estate dispute solicitors on 01895 207988 or email propertydisputes@ibblaw.co.uk. Alternatively please click here.

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