Protocol for Disputes relating to Rights of Light (The Rights of Light Protocol)

1. Preliminary

1.1 This Protocol applies where either:

(a) an owner (the Developer) wishes to extend or develop its property in a way which may infringe rights of light and wishes to resolve rights of light issues prior to commencing development; or

(b) an owner (the Adjoining Owner) believes that its rights of light may be infringed by a neighbouring development but has not yet been approached by the Developer to resolve rights of light issues.

1.2 The aim of this Protocol is to provide a process, which seeks to ensure that the Developer and the Adjoining Owner exchange information in a timely manner to minimise the scope for disputes between them; and to enable any such disputes to be promptly resolved, keeping costs to a minimum.

1.3 It is assumed that, prior to embarking on the steps contemplated by the Protocol, the Developer will have engaged a suitably qualified or RICS registered rights of light surveyor (a Surveyor) and/or solicitor to act on its behalf and references in the Protocol to steps to be taken by the Developer may include a Surveyor or solicitor on its behalf.

1.4 Each case is different and there may be cases in which it is inappropriate for the parties to follow all or part of this Protocol. In particular, there may be circumstances in which a party is advised to issue court proceedings as a matter of urgency. In those cases, the parties should consider the extent to which they are nonetheless able to comply with the spirit of the Protocol without prejudicing their position and should endeavour to do so where reasonable.

1.5 It is not the function of this Protocol to provide advice to the parties. Rights of light disputes frequently involve complex legal and technical issues and specialist advice should be sought.

1.6 Where a Developer has (or is considering taking out) an insurance policy in respect of rights of light claims then the terms of the policy should be studied carefully and specialist advice taken before taking any of the steps contemplated by the Protocol.

2. Introductory Letter and Initial Response

2.1 Where a Developer has identified that its intended development may potentially result in an interference with access to light to an Adjoining Owner and the Developer wishes to undertake further assessments and/or to resolve the potential claim prior to commencing development the Developer may, as a first step, send to the Adjoining Owner an Introductory Letter providing the following information:

(a) a brief summary of the proposed development

(b) where appropriate, copies of plans for the proposed development or a link to any planning application or consent on the local authority's online portal

(c) a statement that the Developer wishes to take steps to ascertain the extent to which the development may impact the Adjoining Owner’s access to light and, if appropriate, to resolve any claims arising

(d) a request that the Adjoining Owner provides access to the Adjoining Owner's property to the Developer's Surveyor for the purpose of ascertaining room layouts and undertaking assessments

(e) a request that (where the Adjoining Owner is able to do so, and subject always to data privacy considerations) the Adjoining Owner provide details of any tenant or occupier of the Adjoining Owner's property who should be contacted to arrange access

(f) a recommendation that the Adjoining Owner should appoint an independent Surveyor to act on its behalf. The letter can include an offer to provide a list of independent Surveyors on request but should make clear that the Adjoining Owner is ultimately free to appoint a Surveyor of its choice

(g) confirmation that the Developer will meet the Adjoining Owner's reasonable fees for taking advice from a Surveyor up to a capped amount to be agreed between the Surveyors

(h) contact details for the Developer's Surveyor.

2.2 The Adjoining Owner should respond to the Introductory Letter within a reasonable time period, which in most cases will be no more than 21 days. This Initial Response should:

(a) confirm that the Adjoining Owner is able to arrange access for inspection purposes or (where it is able to so and subject always to data privacy considerations) provide details of any tenant or occupier who may be contacted to arrange access

(b) confirm that the Adjoining Owner has instructed a Surveyor to act on its behalf and provide contact details.

2.3 Where an Adjoining Owner has not received any Introductory Letter (or similar approach from a Developer) but believes that an intended development may infringe its rights of light then the Adjoining Owner may send an Adjoining Owner's Introductory Letter to the Developer setting out:

(a) the nature of the Adjoining Owner's interest

(b) any evidence reasonably required to demonstrate that the Adjoining Owner's property enjoys rights of light over the Developer's property

(c) a statement that the Adjoining Owner believes that the development may impact the Adjoining Owner's access to light and that the Adjoining Owner wishes to protect its rights. This may include a request that the development should be amended accordingly

(d) confirmation that Adjoining Owner is willing to provide access to the Adjoining Owner's property to the Developer's Surveyor for the purpose of ascertaining room layouts and undertaking further assessments

(e) a request for confirmation that the Developer will meet the Adjoining Owner's reasonable fees for taking advice from a Surveyor up to a capped amount to be agreed between the Surveyors

(f) contact details for the Adjoining Owner's Surveyor (if appointed)

(g) a request for contact details for the Developer's Surveyor.

2.4 The Developer should respond to any Adjoining Owner's Introductory Letter within a reasonable time, which in most cases will be no more than 21 days. If the Developer believes that the intended development will not infringe any rights of light enjoyed by the Adjoining Owner then the Developer's Initial Response should set out the basis for this belief and enclose any appropriate evidence in support of it. Otherwise, the Developer's Initial Response should provide the following information:

(a) a brief summary of the proposed development

(b) where appropriate, copies of plans for the proposed development or a link to any planning application or consent on the local authority's online portal

(c) a statement that the Developer is willing to undertake (further) assessments to further understand the impact of the development upon the Adjoining Owner’s access to light

(d) a recommendation that the Adjoining Owner should appoint an independent Surveyor to act on its behalf (if it has not already done so). The letter can include an offer to provide a list of independent Surveyors on request but should make clear that the Adjoining Owner is ultimately free to appoint a Surveyor of its choice

(e) confirmation that the Developer will meet the Adjoining Owner's reasonable fees for taking advice from a Surveyor up to a capped amount to be agreed between the Surveyors

(f) contact details for the Developer's Surveyor.

2.5 In some cases, the Developer may consider it premature (in the context of its development proposals) to provide or all of the above information. In such cases, the Developer should confirm that this is the case and that it will provide a Developer’s Initial Response at a later date as appropriate.

2.6 It is recognised that in some cases it may be appropriate for all or part of the above exchanges to take place on a without prejudice basis.

3. Exchange of Information

3.1 Save in a case in in which the Developer believes that any rights of light enjoyed by the Adjoining Owner will not be infringed, within 14 days of the Initial Response or Initial Developer's Response (or, if later, the date on which the Adjoining Owner provides details of its appointed Surveyor) the Developer's Surveyor should make contact with the Adjoining Owner's Surveyor to:

(a) arrange an Inspection of the Adjoining Property. In more complex cases it will often be appropriate for this to be a joint inspection attended by the Developer's Surveyor and the Adjoining Owner's Surveyor

(b) agree an appropriate cap for the Adjoining Owner's reasonable surveyor’s costs to be reimbursed by the Developer. The Developer should arrange for this amount to be confirmed by way of a solicitor's undertaking if requested by the Adjoining Owner

3.2 Within a reasonable time following the Inspection (which will usually be no more than 14 days, but will depend upon the complexity of the case) the Developer's Surveyor should write to the Adjoining Owner's Surveyor to

(a) provide an electronic copy of any technical loss of light analysis undertaken (or any updated analysis if one has previously been provided)

(b) Request any Further Information which the Developer reasonably requires in order to assess whether the Adjoining Owner may have a claim for infringement of rights of light (and if, so, the extent or quantum of any such claim). It is not possible to be prescriptive about what this information will be but it may include:

(i) evidence of the age and history of the Adjoining Owner's property where there is some reasonable doubt as to whether it benefits from rights of light

(ii) copies of any title deeds relevant to rights of light which the Developer is unable to obtain these from Land Registry

(iii) details of any tenancies of the Adjoining Property and copies of any leases which the Developer is unable to obtain from Land Registry

(iv) room layout plans for the Adjoining Property

(c) confirm that the Developer will meet the Adjoining Owner's costs of providing any requested information up to a reasonable cap.

3.3 If the Adjoining Owner believes that it reasonably requires any Further Information from the Developer at this stage then this should also be requested within a reasonable time following the Inspection.

3.4 Each party should Respond to any Request for Further Information within a reasonable time, which will usually be no more than 14 days. If a party anticipates that it will take longer to comply with a Request for Further Information then it should provide an indication of its anticipated timescale for a response. If a party is unwilling or unable to comply with any part of a Request for Further Information then its response should set out the reasons for this.

3.5 In a case where the Developer does not believe that any rights of light enjoyed by the Adjoining Owner will be infringed the Developer should nonetheless consider whether it is appropriate to follow the above process on a basis which is without prejudice to that position.

4. Dispute Resolution

4.1 Following the Exchange of Information the parties' Surveyors should aim to meet or speak within 14 days in order to discuss the claim. It will usually be appropriate for this Initial Meeting to be on a without prejudice basis. At the Initial Meeting, the Developer's Surveyor should confirm whether the Developer wishes to put forward any proposal to resolve any claim. If the Developer does not wish to put forward a proposal then the reasons for this should be explained.

4.2 The parties' Surveyors should use the Initial Meeting to narrow the issues between them. The extent to which this is possible will differ in each case but it will often be possible to agree at the very least the technical level of any loss of light on a traditional Waldram basis and a book value amount in respect of that loss. The parties should also consider the extent to which other methods of technical analysis may be relevant. If there are differences of view as to the appropriate technical methodologies to be applied and/or the practical application of any methodology (for example, assumed room layouts or baseline scenarios) then these should be explored. If there are technical or legal issues upon which the parties' Surveyors are unable to agree then these should be recorded.

4.3 Within 14 days of the Initial Meeting, the Developer's Surveyor should write to the Adjoining Owner's Surveyor (on a without prejudice basis if the Initial Meeting was without prejudice) setting out the matters which were agreed and unagreed. The Adjoining Owner's Surveyor should respond within 7 days either confirming that the Developer's letter accurately sets out the position or identifying any respects in which it does not. The surveyors should endeavour to agree a list of agreed and unagreed matters within 21 days of the Initial Meeting.

4.4 In most cases it will be appropriate for the Surveyors to meet or speak on more than one further occasion to seek to further narrow the issues between them and/or to discuss proposals to resolve any claim.

4.5 If at any point either party considers that the discussions between Surveyors are not making sufficient progress then that party may send to the other on an open Letter of Claim setting out its position and enclosing any key documents in support of that position. The other party should send a Response within 28 days setting out its own position and enclosing any key documents.

4.6 Each party should take advice from its solicitor and Surveyor before sending any Letter of Claim or Response. The Letter of Claim or Response should comply with any relevant provisions of the Civil Procedure Rules 1998 and associated Practice Directions.

4.7 Within a reasonable time (which will usually be no more than 21 days) after the exchange of the Letter of Claim and Response, the parties' solicitors (and, if appropriate, Surveyors) should speak on a without prejudice basis to discuss:

(a) what are the Issues in Dispute between the parties and whether it is appropriate to confirm this on an open basis so as to formally narrow the issues

(b) whether there is any reasonable prospect that the some or all of the Issues in Dispute can be resolved through further discussions between the Surveyors

(c) whether some form of Alternative Dispute Resolution procedure would be more suitable than litigation and, if so, endeavour to agree which form to adopt.

4.8 The options for resolving disputes without litigation include:

(a) mediation - a form of facilitated negotiation assisted by an independent neutral party

(b) arbitration by a suitably qualified and experienced lawyer or surveyor agreed upon by the parties or appointed in default of agreement from the Property Panel of the Chartered Institute of Arbitrators by the President of that Institute

(b) expert determination by an independent third party (for example, a barrister, solicitor or surveyor experienced in the relevant field) or

(c) early neutral evaluation – a non-binding assessment by an independent third party of the merits of all part of the parties’ respective positions.

Written by:

Jonathan Karas KC
Paul Tonkin, Partner, Hogan Lovells International LLP

Date: December 2023

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