Dan Tapscott, Head of Rapleys Neighbourly Matters team comments on important reminders and lessons learned from a recent Rights to Light case.

Rights to Light case law moves at a relatively slow pace. It has been 10 years since the notable HKRUK II (CHC) Ltd v Heaney [2010] judgement, where the courts awarded an injunction against a constructed and occupied scheme in favour of a neighbouring office rather than allow compensation to be paid. We then had Coventry v Lawrence [2014] which questioned whether the courts’ willingness to opt for an injunction first before allowing compensation was correct or has been adopted too readily. Scandia Care Ltd and another v Ottercroft Ltd [2016] reminded us of the importance of the conduct of the parties. Now we have the outcome of Beaumont Business Centres Limited v Florala Properties Limited [2020] to consider.

It is a case where Rights to Light matters have been rumbling along for quite some time between the parties, but in brief:

• Beaumont’s property is a serviced office building which was refurbished and extended by a further storey in 2011/12.

• Florala purchased their property in 2013 and raised concerns over their Rights to Light because of Beaumont’s building work, with a reciprocal agreement tabled for Florala’s impending development of their building.

• Discussions surrounding this continued, but in 2015 Beaumont sold its freehold interest and a sale and leaseback agreement resulted in another Beaumont property taking on a leasehold interest in the property. The original Rights to Light claim remained with the new freeholder which resulted in Florala arguing that the end goal was therefore a ransom demand rather than a preservation of light.

• Meanwhile, in 2015 Florala obtained planning permission for the redevelopment of their own building into an apart-hotel. In 2017/18 Florala proceeded with these works which included a vertical extension of 11.25m. Beaumont had objected to the proposals and although proceedings for an injunction began, they did not apply for an interim injunction for the works to be paused. Florala sought a summary judgement claiming that Beaumont had no grounds for the injunction but this was dismissed.

• Beaumont’s proceedings reached the High Court which led to an injunction being granted requiring Florala to pull down part of its offending development which had been completed almost 2 years ago.

The court considered a wide variety of aspects of Rights to Light and there are a number of key conclusions and reminders for the industry. These can be summarised as follows:

1) The primary remedy the court will use is awarding an injunction before damages via compensation. Developers should not assume compensation in the commercial world is the natural default;

2) The pre-existing Rights to Light Deed between the defendant and the landlord of the claimant’s property didn’t help the defendant even with changes in ownership to contend with. Careful consideration of such documents needs to be paid, when relying on them or on the drafting when entering into them;

3) The claimant’s neighbouring property was poorly lit to begin with therefore the court found the remaining light received to be precious and worth protecting. The fact that there was a previous reliance on artificial light in these offices was irrelevant;

4) The analysis used in the case to quantify the levels of interference was Waldram analysis (based upon the calculations of Percy Waldram in the 1920s). Comparable analysis was submitted considering ‘Radiance testing’ which is more advanced and, in our opinion, more holistic, considering reflected light bouncing off adjacent surfaces. However, this was largely ignored by the court;

5) If damages via compensation were to be accepted (by Beaumont choosing not to join the tenant) then the basis of these calculated by the court was again a third of the developers profits from the offending parts of the massing; and

6) The matter was dealt with over a long time and on a reactive basis. Hindsight is a great thing but ‘neighbourliness’ at the outset seemed to be thrown out of the window. Conduct of the parties remains key, proceeding at risk of is unadvisable. The ‘high handed’ manner the courts regarded of the developer pressing on when there were clear and unresolved objections did not help them. Florala has sought to appeal this decision. It will be interesting to see what arises from this or whether the matter is resolved ‘on the steps’ as was the case with the appeal for HKRUK II (CHC) Ltd v Heaney leaving the construction industry to either proceed at risk or to prudently tread carefully.

Rapleys Neighbourly Matters team operate throughout the UK providing Rights to Light, Daylight & Sunlight, Party Wall and Access Arrangement services for both developers and neighbours to development.

If you are planning a development where we can be of assistance, please do not hesitate to contact Dan Tapscott or a member of the Neighbourly Matters team at Rapleys.

Dan Tapscott, Head of Rapleys Neighbourly Matters team comments on the Government’s “Planning for the Future” guidance [published in March 2020] and considers the direction of travel regarding vertical extension rights.

It is applauded that the Government are looking at ways to enable ‘innovative’ development to happen, including building upwards with vertical extensions. However, we know this is an area that will still warrant detailed consideration by developers in order to avoid Rights to Light objections. These could be quite costly or make developments unviable, even if they get a green light in terms of planning.

A Right to Light (or Right of Light; there is no difference) is an easement, similar to a Right of Way. This enables the passage of diffuse skylight through a defined aperture such as a window to be protected by law. If the level of light received is reduced to an unreasonable degree, then the relevant owners of the property who can make use of the right can raise an objection. The remedy to an objection would either be damages via compensation or the awarding of an injunction to forbid the offending construction commencing, or for its removal, even if the new building is occupied.

Planning laws do not override common or civil law and therefore it is important that before detailed design work progresses, developers ensure they are aware of where the risks are and their strategy for dealing with them. The use of Rights to Light Envelope Studies is an area that could prove invaluable to help guide a design team to work within certain parameters, to avoid unreasonable levels of interference to the neighbouring properties. We believe that in taking this course of action prior to considering what can be achieved via any relaxation in planning laws for Permitted Development, would be the best all-round approach.

The remaining options for developers to deal with matters arising are negotiation with the effected parties in a proactive manner, ignore the issue and wait six years after the injury has been triggered for an objection to arise or consider an insurance based approach.

There has been talk of reform in the Rights to Light industry since the issuing of the Law Commission report in 2014, although nothing has progressed since then. As and when this comes back online (when we hope that the advances in technology for calculating light loss are taken into account), it will be interesting to identify areas of joined up thinking rather than those which conflict.

Rapleys Neighbourly Matters team operate throughout the UK providing Rights to Light, Daylight & Sunlight, Party Wall and Access Arrangement services for both developers and neighbours to development.

If you are planning a development where we can be of assistance, please do not hesitate to contact Dan or a member of the Neighbourly Matters team at Rapleys.

Women make up around 14% of construction industry professionals and this number can only be set to rise with more and more women choosing construction jobs. Misconceptions about gender specific roles are gradually diminishing with the industry and a growing number of women choosing a career in construction.

Women in Construction are helping to challenge the diversity divide and reshape the industry. Each year they hold a summit at The London Build Expo and last year Natasha Bray was selected as a Woman in Construction Ambassador.

Natasha joined Rapleys in November 2017 and is the lead contact for Neighbourly Matters services in London. She specialises in Daylight & Sunlight and legal Rights to Light. Last year Natasha was selected as a Women in Construction Ambassador to help reshape the gender imbalance of the construction industry. Natasha has a strong background in Compulsory Purchase and s.203 Housing and Planning Act 2016 with Council related schemes. She also has experience in managing large scale developments and schemes with a large number of potentially affected neighbours.

We spoke to Natasha to find out more about her experiences as a woman in the construction industry and what that has meant for her since the start of her career and her role in here at Rapleys.

What does a typical day involve?
My day is always extremely varied, one day I could be meeting clients discussing the best strategy for their sites, the next I could be at the other end of the country taking measurements of a property. A lot of the work is heavily reliant on technology so you will always find me with a laptop in hand.

What makes you proud of your work?
Many of the clients I have worked with tend to find the Neighbourly Matters area particularly problematic. I am therefore always proud to be able to find a solution to a problem that seemed impossible to begin with.

What personal qualities help you succeed?
As a person I am very goal orientated, if I have a list of tasks to do for either the day or the week, I do not feel satisfied until they are complete. This really helps me keep on top of my work and allows me to provide the best service I can to my clients.

What perks are there about working in this industry that not many people know about?
For me the biggest perk is the variety of people and work I get involved with. No two days look the same and that really helps to keep the day to day interesting.

What was it about a career in the construction industry that appealed to you?
I have always like the idea of being part of creating something out of nothing. My role allows me to be part of solving the problems that come along with that.

What advice would you give someone interested in a career in construction?
Work experience is worth its weight in gold. I would encourage everyone looking at construction as a career prospect to get experience in as many different roles as possible. Even if you decide you do not like a good number of them, it is better to start ticking off things you don’t like that to fully commit to something you may not enjoy.

How do you think the construction industry can attract more women?
This is a question that in my opinion has many different answers. However, for me personally I think that an active effort to celebrate the women in the construction industry currently is very important.

In order to open the field up to more women it makes sense to make the current women more visible. The sooner we can spread the message that the industry has plenty of jobs women would enjoy, the sooner young women will realise this industry is an option.

What are the challenges, if any, that you face as a woman in a male-dominated field?
Aside from the occasional comment of “oh are you not feeling well” on the days where I have decided not to wear makeup. I luckily have not faced any substantial challenges as a result of being a woman in a male dominated field. I do however recognise that this is likely a result of my personality.

I have over the years called out any occasions where I have felt that actions or comments have occurred because I am a woman and that the same treatment would not have been received if I were a man. This has certainly reduced the number of similar comments I would have received than if I had just laughed them all off.

I think as a woman in this industry it really benefits you to be confident enough in yourself and your convictions to speak up in uncomfortable situations. Hopefully the more people that speak up, the easier it will be to reduce the amount of these situations.

How do you think women are leading the charge on improving diversity in the construction workplace?
Being one of the largest groups of underrepresented people in the industry I think a lot of women have made it their mission to improve access to the industry for those that would normally not look to construction as a viable career route. This is certainly something that I myself am keeping under constant review.