On 25 October 2016, the Hogan Lovells Real Estate team hosted a panel debate: Rights of Light – A New Dawn? The panel of industry specialists debated topical issues including:

  1. the likelihood of adjoining owners obtaining an injunction to prevent interference with rights of light;
  2. whether recent developments in case law mean that developers need to adjust their strategy for addressing rights of light;
  3. the role of insurance; and
  4. the impact of the new section 203 of the Housing and Planning Act 2016.

The consensus amongst the panel was that recent case law, such as Coventry v Lawrence [2014] and the very recent Court of Appeal decision in Ottercroft v Scandia Care [2016], has made clear that the courts have a broad discretion in deciding whether to grant an injunction to prevent interference with rights of light and that this may make the outcome of any claim more difficult to predict. It is also clear that the conduct of the parties will be put under close scrutiny – developers who fail to engage properly with their neighbours, even in respect of minor infringements, could find themselves faced with an injunction. On the other hand, well-advised developers who engage openly and reasonably from an early stage perhaps have some cause to feel more confident when it comes to defending injunction claims from adjoining owners seeking a ransom payment.

The panel felt that the current uncertainty has brought into focus the role which insurance has to play in any rights of light strategy. Fraser Pratt, Head of Rights of Light and Legal Indemnities at PIB Insurance, commented that the insurance market has moved on considerably over recent years to provide products which fit within the current legal landscape and that developers would be well advised to engage with insurers at an early stage in the process.

The panel agreed that the powers of the local planning authority also have a key role on large schemes. The local authority’s powers to override rights of light under section 237 of the Town and Country Planning Act 1990 have been replaced by section 203 of the Housing and Planning Act 2016. The panel felt that the new powers were likely to be the same in scope as the previous powers under section 237, despite some changes in the wording. However, Oliver Law, Founding Director of The Chancery Group, commented that local authorities may take time to get used to the new powers and may be more cautious in exercising them in the interim.

Overall, the panel agreed that a key aspect of successfully addressing rights of light claims was to put together a joined-up strategy from day one, involving not just rights of light surveyors but also the legal team, insurers and planning consultants.

The panel comprised of:

Jonathan Karas QC – Barrister, Falcon Chambers
Greville Healey – Barrister, Falcon Chambers
Oliver Law – Rights of Light Surveyor and Founding Director, The Chancery Group
Fraser Pratt – Head of Rights of Light and Legal Indemnities, PIB Insurance
Paul Tonkin – Senior Associate, Hogan Lovells

Chair: Mathew Ditchburn – Partner, Hogan Lovells