A nervous disposition
As a Chelsea fan, I had assumed that the likes of Manchester United and Manchester City would prove to be my team’s most formidable opponents this season. However, a family of four have sought to scupper Chelsea’s plans and in doing so, have demonstrated that rights to light remain an important consideration and a potentially expensive hurdle.
After numerous failed attempts to move away from Fulham Road, Chelsea decided to stay put and planning permission for a reported £1 billion redevelopment of Stamford Bridge was granted. The difficulties in searching for a new home were no more, but the decision to redevelop invited fresh problems.
A family of four, who live a stone’s throw away from Stamford Bridge, obtained an injunction to prevent the redevelopment on the grounds that it would infringe their right to light.
A right to light is a right to enjoy the free passage of natural light over another’s land (though it is not a right to direct sunlight) and can be expressly granted, implied or prescribed over time. In other words, land that has the benefit of this right is protected from buildings on the land that has the burden, preventing them from substantially obstructing the passage of light.
The remedy for rights to light infringement is twofold. Those looking to enforce their rights can seek an injunction, to prevent developments blocking their light from coming to fruition. Though it should be noted that the court has a broad discretion to award damages in lieu of an injunction.
Alternatively, developers may seek to negotiate with the beneficiaries of the right and agree to pay them compensation in return for the release of the rights. In Chelsea’s case, all but one family accepted this second option and compensation packages were agreed.
In order to defeat the right to light, Chelsea effectively bypassed the usual twofold remedy process. Under s203 of the House and Planning Act 2016 (“s203”), Hammersmith and Fulham Council are able to acquire the land and lease it back to Chelsea, so long as the Council are satisfied that the development is in the public interest and justifies an interference with the rights of a third party.
Ordinarily this may be difficult to prove, however Chelsea’s plans already had the benefit of planning permission and Chelsea agreed to contribute a large sum to the local community (including money for increased CCTV and affordable housing) in addition to the increased jobs and footfall that the development would inevitably bring.
Use of s203 should not be relied on as a significant option for property developers and potential developers should be wary of the unique nature of this example. The availability of s203 will turn on the facts of each case and its use should be a last resort for local authorities. Accordingly, it should also be a last resort for developers.
The lesson to be taken from Chelsea’s difficulties is that rights to light should not be overlooked and should be a serious part of the initial development discussions. Consulting surveyors, commissioning a right to light report and dealing with potential issues early, can save costly disputes arising later.
Though the Council were willing to see the public interest element to Chelsea’s plans, it is unlikely that this example serves as a precedent for future rights to light disputes and should not be seen as a dilution of rights to light power. To the contrary, the fact that a family of four were able to cause such a headache for Chelsea demonstrates the power that rights to light hold and serves a reminder to developers to not simply assume that compensation will be an adequate and welcomed remedy.
Where the local authority are not willing to assist and injunctions are awarded, developers are forced to incur costs in redesigning plans or worse, demolishing and rebuilding properties. The power of rights to light is best shown by the example of Dublin’s Aviva Stadium, where in order to avoid blocking light to the surrounding houses, the northern end of the stadium incorporates the lower tier seating only and sports a transparent roof. Fortunately, for Chelsea, they seem to have avoided such drastic measures, but with reports suggesting that the family may seek a judicial review of the Council’s decision, Chelsea may not be out of the woods just yet.
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