Policy Briefing: How rights to light and daylight guidance affect development

These two lighting principles are often confused, but both prompt concerns among developers, says Tim Fogarty.

London: right to light on developers' agendas
London: right to light on developers' agendas

Q. What is the right to light and how is it different from daylight and sunlight assessments?

A. These are two distinct principles that are often confused. There is a fundamental difference between the common law right to light, and daylight and sunlight assessments that are undertaken as part of the planning process.

Rights to light are private law rights that entitle the owners of many (but not all) buildings to receive a certain level of light passing through apertures, usually windows, in their property. Though dependent upon various legal principles, the rights most commonly arise if windows have been in situ for more than 20 years.

Daylight and sunlight assessments are used to identify the levels of direct sunshine enjoyed by a proposed development and the existing adjacent buildings. The local planning authority uses them to assess the likely impact of the proposed scheme on both its occupiers and existing neighbours. Authorities and applicants most commonly refer to national daylight and sunlight guidance published by Building Research Establishment (BRE).

Q. How do daylight and sunlight and right to light requirements impact on development?

A. If a proposed development will infringe on a neighbour's right to light, the neighbour can seek an injunction to stop it, or part of it, from being built, even if planning permission has been granted.

Similarly, if the daylight and sunlight assessment identifies too great an impact within the scheme or nearby buildings, the local authority can ask applicants to limit these impacts to an acceptable level. If not, the council may refuse to support the application. In practice, daylight and sunlight requirements tend to have a greater impact on a scheme's evolution, particularly on its density and massing, during the pre-application stage when there is still design flexibility.

Q. Have arguments or challenges over rights to light become more frequent in recent years?

A. There has been a significant increase in neighbours' awareness of right to light, and subsequent claims against developers, since a high-profile court decision in 2010 (HKRUK II (CHC) Ltd v Heaney). An injunction was granted that required the developer to remove the top two floors of an already constructed building. Although the developer eventually agreed a financial settlement allowing the two stories to stay in place and the judgment has been superseded in part by subsequent cases, the case gained a lot of attention. Consequently, developers now have right to light high on their agendas - particularly in London, where it often has significant implications for proposed high-rise schemes.

Q. Are there any recent or impending policy or legal changes that may affect these two lighting principles?

A. In 2014, the Law Commission issued a detailed report on proposed reforms to rights of light law. These included introducing a statutory deadline within which neighbours would have to tell a landowner if they intend to seek an injunction to protect their right to light. These proposals were consulted on, but have not been progressed by government.

In May, business group London First and surveyors GIA published a report, 'Unlocking London's Residential Density', which called for specific daylight and sunlight guidance for London and other cities. This would allow for more flexibility in the density and scale of new developments than BRE's guidelines.

The report echoes government proposals set out in the Housing White Paper.

This indicated an intention to amend national planning guidance to support higher-density developments and to consider alternative methods for assessing daylight impacts. However, the government's precarious mandate and focus on Brexit may delay change.

Q. Why do some argue that these two lighting principles can negatively impact on development?

A. Some developers argue that we should consider reforming both principles. Rights to light remain a key risk factor for most major schemes in high density locations. An injunction threat can create delays and additional expense. However, residents' associations and local amenity groups may be concerned that relaxing these guidelines could lead to high density schemes that compromise residents' wellbeing and place additional pressure on infrastructure and local services.

Tim Fogarty is a partner in the Winckworth Sherwood planning and development risk team

*Note: This article was amended on 3 July 2017 to restore the author's original explanation that the developer never had to act on the injunction, which would have required it to remove the top two floors of an already constructed building.

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