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Don't overlook rights of light, sunlight and daylight

Wed 30 January 2013, 9:26 am

Bromley building surveyor and national authority on light issues Dr Peter Defoe of calfordseaden looks at a key issue for future development.

In the next few years Bromley can look forward to a considerable level of development, and this will include some quite large buildings in residential areas.

Before developers can commence these works they will have had to obtain planning approval and in some cases, but not all, will have submitted their assessment of the impact on daylight and sunlight to the existing surrounding properties, to the planning authority. These assessments may be challenged if they fail to take proper account of the surrounding amenity, but the Planning Committee are entitled to disregard adverse impact if there is an overall benefit in allowing the development.

However, whilst a development may receive planning approval this does not mean that the right to light is lost.

Nearly all properties will have, at Common Law, the right to receive an adequate amount of light from across a neighbour’s land, as does your neighbour from across your land. Any obstruction to this right by a proposed development could require the development to be altered, or in the worst case - or best case dependent upon your viewpoint - stopped altogether.

Given the proposed level of development in Bromley, it is inevitable that some properties will suffer loss of amenity and possibly an actionable loss of light. Both developers and property owners need to be aware of this and of their rights and responsibilities and to take appropriate action at the right time.

Some recent high profile court cases have demonstrated the risks to developers who proceed with construction whilst ignoring the protests of adjoining owners, assuming that they can settle any issues through the payment of compensation. This is clearly not the case but equally the adjoining owners must act reasonably at all times. They cannot ‘ambush’ the developer when the works are nearly completed.

From a developer’s perspective, a development can result in a significant amount of light, daylight or sunlight being lost before the adjoining owner or the Local Planning Authority can insist on any changes being made.

Knowing how large a building can be constructed without having an affect on their neighbour could significantly increase the chances of a successful development, both financially and aesthetically.

Where an adverse affect is inevitable then the developer must consider options such as negotiations with adjoining owners or obtaining insurance cover.

From an adjoining owner’s perspective, it is important to understand whether a report has been submitted to planners and what the significance might be or whether there may be errors in the report that could be challenged before approval has been granted.

The measurements employed for daylight and sunlight reports for planning are not the same as those used for rights of light and this difference can prove to be important.

Where planning approval has been granted, there may still be the possibility that the loss of light may be actionable and it is important to have professional advice, firstly as to whether the loss may be actionable and then on the best course of action to take.

Property developers may be able to afford such advice, but ordinary homeowners may not and it is worth noting that some household insurance companies do cover the costs of an action, so it is well worth consulting insurers if an actionable loss is predicted.

calfordseaden have invested heavily to ensure that professional help and assistance can be made readily available to advise whether a problem may exist, how serious it may be, and the available options to either the developer or the surrounding owners. We have acted on behalf of both sides and the insurance companies.  We have an enviable track record of successful negotiations where actionable losses were predicted.

Dr Peter Defoe of calfordseaden LLP is co-author of the Royal Institution of Chartered Surveyors Guidance on Rights of Light and the Guidance on Daylight and Sunlight; he was also a contributor to the Building Research Establishment Report on Site Layout Planning for Daylight and Sunlight. He can be contacted at calfordseaden's Orpington office on 01689 888222.

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