Rights of Light & Neighbourly Matters

With the increase in tall glazed buildings and their proximity to neighbouring buildings, rail tracks, roads and airports it is important to establish whether any mitigation measures are required to prevent hazardous situations due to reflected sunlight.

Reflected sunlight from the surface of buildings has the potential to create significant hazards, potentially endangering life.

Road junctions and rail tracks are two areas which are particularly sensitive to this type of hazard, as signal lights can be missed due to excessive dazzle. In addition, occupants of adjoining buildings can also be affected by reflected sunlight, making the workplace or home less comfortable and possibly cause accidents.

We have particular expertise dealing with these matters in relation to rail side development, given the increase in new heavily glazed buildings in very close proximity to stations and signals.

We can conduct detailed computer studies to predict the times of the year/month/day where there is the potential to produce these types of effect and then report on how likely they are to create a hazardous situation.

Our capabilities:

• Initial site review / strategic advice;
• Undertaking detailed technical studies;
• Liaison with affected parties;
• Advising on mitigation measures;
• Acting as technical adviser to Local Planning Authority;
• Environment Impact Assessment/ formal reporting.

Daylight and Sunlight are types of amenity enjoyed by existing neighbours or future occupiers of a proposed development. Local Planning Authority policy will typically necessitate a formal report considering potential impacts to existing neighbours and the quality of provision within proposed dwellings in order to validate a submitted planning application.

Daylight, Sunlight and Overshadowing matters can and do often form reasons for refusal to grant planning permission. As such, they can become one of the main considerations in a subsequent appeal.

In addition, there are Daylighting credits available under Building Research Establishment Environmental Assessment Method (BREEAM) rating and certification, which apply to a wide range of buildings types.

This can help achieve an ‘Excellent’ or ‘Outstanding’ BREEAM rating, thereby signifying high sustainability performance to potential tenants or purchasers.

We have over 40 years of experience of successfully assisting our clients with:

• Pro-active monitoring of nearby planning decisions related to Daylight, Sunlight and Overshadowing;
• Pre-acquisition advice;
• Indicative 3D CAD building envelopes/ site massing optimisation studies;
• Developer/building owner strategic advice;
• Undertaking detailed CAD technical studies;
• Advising on BREEAM credits;
• Design advice to mitigate potential risks;
• Pre application liaison with Local Planning Authority officers;
• Advising affected adjoining owners, including assisting with objections;
• Technical adviser to Local Planning Authority;
• Attendance at Planning Committee;
• Environmental Impact Assessment (EIA) chapters and formal reporting;
• Planning Appeals, including attendance at inquiry.

A right of light is simply a type of easement i.e. a legal right to use neighbouring land(s) for a specified purpose, in this case to receive adequate light. Although simple in theory, these matters are frequently complex in practice and therefore it is critical to have timely expert advice.

Rights of Light disputes mainly arise when one party is seeking to build on their own land and in doing so would interfere with an easement enjoyed by a neighbouring owner. Depending on the extent of the interference, an affected party may be entitled to monetary damages (compensation) or injunctive relief.

Particularly in dense urban environments it is perhaps no surprise that Rights of Light can be a significant potential constraint to development if the risk is not professionally managed, particularly if dealing with multiple claims.

Avison Young has one of the most experienced teams in the country and were also the first to have a national presence, meaning we have dealt with many high profile and complex cases in every region of England and Wales.

We have had involvement with several of the leading Rights of Light cases, including:

Midtown Ltd v City of London Real Property Co Ltd [2005] and Tamares (Vincent Square) Limited v Fairpoint Properties (Vincent Square) Limited [2006/7].

We have over 40 years’ experience successfully assisting our clients with:

• Pro-active estate management;
• Pre-acquisition site appraisals;
• Indicative 3D CAD building envelopes/ site massing optimisation studies;
• Developer/building owner strategic advice;
• Adjoining owners advice;
• Undertaking detailed CAD technical studies;
• Design advice to mitigate potential risks;
• Negotiating release of potential constraints and draft agreements;
• Assisting serving Light Obstruction Notices (LONs);
• Acting as Expert Witness (RICS Accredited);
• Advising on the use of statutory powers;
• Assisting with placing Rights of Light insurance cover.

We are also in regular contact with specialist lawyers, barristers and other experts to ensure that we are at the forefront of current practice.

Particularly in urban environments, excessive artificial lighting (i.e. light spillage beyond the area intended to be lit) can cause significant physiological and environmental problems.

As our cities and towns feature increasing amounts of artificial light, its negative effects on human health and well-being are becoming better understood. In addition, wasted energy use contributes to unnecessary resource depletion and environmental degradation.

Local Planning Authorities are increasingly concerned with the potential for new development to adversely increase existing light pollution or create new problems. They also frequently receive objections related to Light Pollution during the determination process, meaning significant delay if a technical study needs to be commissioned at short notice.

At the planning stage it is possible to computer model the potential artificial light spillage and compare this against the baseline or existing scenario, considering in detail the impact to sensitive uses, i.e. dwellings, hospitals etc.

Our capabilities:

• Initial site review / strategic advice;
• Undertaking detailed computer based studies;
• Liaison with affected parties;
• Advising mitigation measures;
• Acting as technical adviser to Local Planning Authority;
• Environment Impact Assessment/ formal reporting.

When building close to a neighbour, often such works are administered under the Party Wall etc. Act 1996. However only specified (“notifiable”) works fall under the Act, which provides a legally binding framework for addressing possible disputes which may arise between the parties.

Early identification of Party Wall considerations can prove extremely valuable at a later stage, as the design can proceed with these in mind. Failure to adequately consider these matters early on can mean significant, avoidable risks and costs.

Common types of notifiable works would include building a new wall, cutting into or changing the height of an existing party wall (including increasing its depth for the purposes of building a basement extension), removing chimney stacks/ flues, works to party structures (for example walls or floor partitions in multi-tenanted buildings) and sinking piled foundations near to a neighbour.

The aim is to establish a mutually agreed Party Wall Agreement (Award) which sets out the terms on which the notifiable works will proceed.

Avison Young is highly experienced in dealing with all aspects of Party Wall matters, having worked predominantly on large scale, complex instructions. As a result we fully understand how to balance efficient use of a site whilst complying with the requirements of the Act.

We are also able to advise on boundary disputes, where its location is challenged between neighbours.

We have a national offering with offices in London, Birmingham, Bristol, Cardiff, Manchester, Leeds, Liverpool and Newcastle so are well placed to service regional and national projects.

We have over 40 years’ experience successfully assisting our clients with:

• Initial strategic / pre-site acquisition Party Wall Act advice;
• Review of Party Wall related matters during the design process (i.e. monitoring and due diligence);
• Acting as Building Owner/ Adjoining Owner/ Agreed (Joint)/ Third Surveyor;
• Managing the Party Wall procedures process including negotiation of Awards, Schedules of Condition and Inspections;
• Appearance at court as Expert Witnesses/ litigation support.

Apart from very limited circumstances, there are no rights to use neighbouring land or airspace in order to enable construction works. Scaffold footing and crane swinging onto and over neighbouring land(s) are common examples of types of work which may require such use, otherwise known as trespass.

Early identification of the need for trespass licences to enable construction works can avoid having protracted negotiations further down the line. In many circumstances agreement cannot be reached, which often means expensive last minute decisions need to be taken to avoid trespass.

As there is no statutory mechanism for allowing these types of trespass, the negotiation is effectively an open market one, whereby a fair consideration is agreed in return.

Avison Young has significant experience agreeing these types of license, which require careful and sensitive negotiation couple with a thorough understanding of alternatives.

Frequently these types of licence are agreed as part of an overarching agreement between neighbouring parties, which may also include common law Rights of Light.

We have over 40 years’ experience successfully assisting our clients with:

• Developer/building owner strategic advice;
• Adjoining owners advice;
• Negotiation of licence pricing and/or reciprocal agreements;
• Consideration of alternatives to agreeing licences, such as amended design or construction methods;
• Drafting and executing formal legal agreements/ licences.