The Over Shadow of Rights of Light…
‘Appropriation for Planning
For Real Estate developers, Rights of Light continue to be a major financial concern– does the use of appropriated land mitigate these risks altogether?
Purposes’…
In recent years, the enforceability of and implications arising from Rights of Light issues have been continually tested and challenged in the courts – over the last eight years in particular, case law has muddied the legal waters surrounding appropriate remedy available to property owners who have suffered a reduction in the level of light that they lawfully enjoy. Rights of Light are a legal easement that can be acquired by a property in several ways; the most common method is by prescription, which arises from an uninterrupted enjoyment of the light through an aperture for at least a 20 year period. Any infringement of light can be actionable upon an offending party, with significant damages awarded or an injunction imposed as recourse. For Real Estate developers, the implications of an interference to Rights of Light could be hugely costly – a multi-million pound development constructed in a city centre could have numerous injured neighbouring properties, and just one claimant has the potential to seriously affect the ultimate profit of the project, or even prevent the development altogether.
Although not specifically defined by the Act, ‘planning purposes’ is generally understood to mean;
The facilitation of development or redevelopment The improvement of an area socially, economically, or environmentally For the interests of the proper planning of an area
The 2010 case of HKRUK II (CHC) Ltd v Marcus Alexander Heaney demonstrated the impact that a Rights of Light claim could have for the developer. The fully completed, fully tenanted penthouse floors of the Manchester development were deemed injurious upon the rights of an adjacent property, and the courts imposed an injunction for the offending section of the development to be cut-back to allow the lawful amount of light into the neighbouring dwelling. On appeal, the case was settled out of court for what are believed to be significant damages.