changed in 2009. There was a piece of legislation called Land & Conveyancing Reform Act 2009. ‘The intention of the Act was to simplify how easements and property rights can come about. ‘It did a number of things. Fundamentally it changes the prescriptive period of twenty to twelve years in Ireland. ‘That’s the amount of time you’d have to demonstrate you enjoyed the uninterrupted access to the light. That dates from December 2009.
Interesting time
negative easement.’ A negative easement? ‘Meaning it’s not a right for you to do something but a right for you to stop someone else from doing something. ‘It’s a right to receive light through an aperture in a building and to stop someone interfering with it.’ How do we acquire it? Kevin explains: ‘There are criteria. And it is worth pointing out here that there are a lot of crossovers form UK law which stems back to the 1832 Prescription Act. ‘In Ireland the law
‘It is a really interesting time to be having this conversation because, in Ireland – as the ‘09 act is effectively repealing the 1832 act and this twentyyear criteria – there is a transition period of twelve years which comes to end at the end of this year. ‘The old laws are gone and new are fully effective then.’ The other thing about the ‘09 Act is that, unlike in the UK, there is an opportunity within the Act to go and register your right, says Kevin. ‘The ability to register the rights acquired through the old 20-year rule will expire on 30 November this year. ‘The ability to register your rights through this act is effectively allowing people to protect rights acquired through the old rules. After 30 November, the new long user period of twelve years will apply to
‘It’s about being a good neighbour and developer
any rights accrued or in the process of being accrued from December ‘09.
Hot topic ‘In the UK Rights of Light are a hot topic and we are one of the first names on the developer’s team sheet,’ adds Kevin. ‘Because they want to understand the issues. ‘With a Right to Light Survey report,’ he says, ‘we can show clients where the issues are and how to resolve them. At the end of the day, ‘each development site in any dispute,’ says Kevin, ‘will turn on its own merits. ‘If an issue goes the whole way to court the judge will ask a number of questions of course. But recently, in the UK, a big area has been to do with the conduct of the parties to a dispute. ‘So it is one thing to say: “the developer is going to build in a way that will block light,” but how has the developer conducted themselves? ‘Have they knowingly reduced the light (and therefore value) to a neighbour’s property and remained silent, or have they approached their neighbours and said: “I
know I’ll remove your light and profit from that so can we do a deal?”’
Good conduct Judges have been really hot on developers showing good conduct, says Kevin. ‘If a developer does not show good conduct and tries to build in ignorance of the fact they are walking over rights, a judge can look poorly on that. ‘And it might be that, instead of a financial settlement by way of damages, a judge can award an injunction to stop the development, or even an injunction to make the developer tear the building down. ‘The courts are being abundantly clear on what they want to see – a proactive approach from developers, a demonstration of good conduct. ‘At the end of the day a lot comes down to how they approach it all; how they demonstrate good faith, good conduct and preparedness to work with others. ‘It’s about being a good neighbour and developer and trying to cover as many bases as you can.’
Any site One thing is for certain, says Kevin. ‘Rights of Light can be one of the greatest constraints to developmental potential. ‘Issues can arise on any site too’, he cautions, ‘not just with sky scrapers – and that is a point worth remembering. ‘One brick course can interfere with a right to light.’
‘We believe the market is brimming with opportunities to make a positive, sustainable impact on the built environment and its surrounding communities.’ Summer 2021 | Construction Management | 21
