Guidance Note

The following guidance is provided to assist developers or those whose lands adjoins a proposed development who are in dispute or anticipating a dispute over rights to light, and should be read with the Rights to Light Protocol.

Although the authors of this Note and the accompanying Protocol consider that their contents provide a constructive template for the resolution of rights of light disputes, they are not giving legal advice, and do not accept responsibility for the contents. 

1.             Rights of light

1.1          A right of light is a right to receive light into defined apertures of a building across neighbouring land. Where a right to light exists, the development of neighbouring land in a way which substantially interferes with that right of light will constitute an actionable nuisance.

1.2          A right of light may be granted expressly or impliedly or may arise as a result of prescription (long use). The question of whether a right to light exists can be complex and legal advice should be sought. Similarly, the question of whether a right of light will be interfered with often requires the input of surveyors experienced in rights of light.

1.3          A party wishing to protect its rights of light can seek an injunction to prevent the interference and/or damages.

1.4          The aim of the Protocol is to facilitate swift resolution of any disputes between parties by ensuring information is shared at an early stage, narrowing the issues between them and, if possible, avoiding the need to go to Court.

2.             Professional advisers

2.1          Rights to light is a complex area, and in most cases, parties will wish to take advice from surveyors and/or solicitors to fully understand their positions. The Protocol assumes that parties are likely to be professionally represented throughout the process.

3.             Insurance

3.1          While the Protocol should be compatible with proactive rights to light insurance policies – which require a developer to actively seek releases from neighbouring properties affected by a loss of light – the Protocol nonetheless advises developers to check the terms of their policy and take advice before taking any of the steps outlined in the Protocol.

3.2          Historically, insurance policies prevented developers form communicating with adjoining landowners regarding rights to light issues, but modern policies tend to require active engagement in many cases.

3.3          Nonetheless, the Protocol makes clear that developers must ultimately ensure that they do not prejudice their rights under any insurance policy and that this takes precedence over compliance with the Protocol.    

4.             Provision of information at an early stage

4.1          The Protocol is broken down into 3 substantive stages, starting with the introductory letter, which allows either a developer or an adjoining owner to initiate a discussion on rights of light.

4.2          Developers should ensure they have the information outlined in the Protocol ready at an early stage in the development process to proactively engage with adjoining landowners, failing which the Protocol gives adjoining landowners the power to request that information to understand what is proposed.

4.3          The Protocol sets out the information which should be included with the introductory letter, including an undertaking to meet the adjoining owner’s costs, and requests for access to carry out internal inspections. While straightforward, these practical issues can often be the cause of unnecessary  delay.

5.             Parties free to issue a formal letter of claim at any time

5.1          Following the introductory letter and initial response, the next step will usually be a physical inspection of the adjoining property followed by an exchange of technical information, and requests for any further information required.

5.2          The parties should then meet to narrow the issues between them and agree a list of agreed and unagreed issues – which may be a mix of commercial, legal and technical issues. This is intended to be an iterative process, involving multiple meetings, ideally leading to an agreement.

5.3          However, either party may issue a formal letter of claim setting out their position at any time, and the parties are then encouraged to attempt alternative dispute resolution before issuing proceedings.

6.             Timings under the Protocol

6.1          The Protocol is intended to be flexible, and allow the parties to use it in a way which suits their particular case.

6.2          The Protocol sets out anticipated timescales for completing each stage, but recognises that those timescales may not be appropriate in all cases, and very large or complex cases may require more time. However, the timescales set out in the Protocol set a benchmark for considering what extended timings may be appropriate in such cases.

7.             Circumstances where parties may choose not to follow the Protocol

7.1          There may be cases in which a developer believes that an approach by an adjoining owner is either premature or misconceived. In those cases, the Protocol does not require the developer to progress to the next stage of the process unless it wishes to.

7.2          Similarly, an adjoining owner is not required to enter into financial negotiations, and is entitled to maintain their position that they do not wish to see their rights to lights infringed. However, there is often still be scope for the parties to use the Protocol to narrow the issues between them.

7.3          Even where either party maintains their position, the Protocol encourages them to consider whether it may nonetheless be worth going through the stages of the Protocol on a without prejudice basis to narrow the issues between them. The initial meeting contemplated within the Protocol will normally be on a without prejudice basis in any case, and the Protocol sets out alternative mechanisms for resolving disputes without going to court, including mediation, arbitration, expert determination and early neutral evaluation.

7.4          There may be cases in which an urgent court application is required and there may not be time to complete the steps contemplated by the Protocol. In those circumstances, the parties should consider whether they can nonetheless comply with all or part of the Protocol without prejudicing their legal position.