Illuminating tale

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

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 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.

Stacy Sinclair is with Fenwick Elliott LLP