Rights of Light: current landscape for developers
By way of reminder, where a right of light has been infringed, the person with the benefit of the right can bring a claim against the infringing party, either seeking compensation in damages, but more often an injunction preventing the infringement – which, if the building has already been completed, could involve a substantial redesign or even demolition.
In order to avoid a claim for rights of light arising, one method sometimes used by local councils is to acquire the freehold of the building, and then for the council to use its powers under s.203 of the Housing and Planning Act 2016.
These powers override easements such as a right of light, blocking the neighbour from seeking an injunction and forcing them to instead accept a compensation payment - calculated on the same basis as a compulsory purchase order.
Councils can be reluctant to exercise these rights, however, due to the risk of judicial review. There are also the implications this route has in terms of overriding local residents’ rights.
Timing is often everything in these situations. In the recent dispute concerning the Bankside Yards development in Southwark, part of the development - known as ARBOR - was already under construction and therefore that part fell outside the protection of the s.203 powers.
As a result, a resident has issued a claim in the High Court, alleging that ARBOR infringes their right of light and requesting an injunction requiring its demolition or alteration. The claim is scheduled to go to trial between May and July 2024.
The case is likely to be heavily contested and the owners of ARBOR have already stated that they do not believe that the neighbouring resident suffers an actionable loss of light or that they should be entitled to an injunction.
Were this matter to go to trial, then it would be provide further important guidance as to the circumstances when an injunction may be granted – particularly when the claim is brought after the development is complete.
In any event, the combination of high value residential accommodation and significant development in Southwark means that this is a location that seems likely to produce further legal conflicts.
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