Tom Kibblewhite, Director for Watts Group PLC draws attention to Section 237 of The Town & Country Planning Act 1990, which gives local authorities the power to extinguish right to light and how to exercise the power appropriately…
As discussed in a previous article in PBC Today, October 2015, Rights to Light is an easement. This means that the light passing over a neighbour’s land or buildings to a window effectively acquires a right of way, and if that light is interfered with, the aggrieved party may be able to claim an injunction to halt or modify a development which has a significant impact.
It has the potential to cause major disruption, cost and delay to a development with an injunction that causes the greatest concern to developers, particularly as a scheme may no longer be viable should parts need to be removed or cut back to accommodate the rights to light of surrounding windows.
The ability to claim an injunction also places adjoining owners in a position of strength in negotiations over whether they are prepared to release their right, something which sees rights to light claims frequently running to six figure sums.
The Town & Country Planning Act 1990 (the Act) attempts to assist local authorities in ensuring that developments can proceed where the threat of an injunction exists, either before construction or after completion. Section 237 of the Act provides local authorities with the power to override easements (including Rights to Light) and other rights, such as rights of way. To trigger this the local authority must acquire or appropriate the development site for planning purposes. If done correctly, this appropriation removes the ability of the neighbour to obtain an injunction and allows the development to proceed.
Whilst using Section 237 to extinguish rights of light removes the risk of an injunction being acquired by adjoining owners for any injury to that right, compensation would still need to be paid but this will be calculated by reference to a statutory formula. Whilst it is understandable that local authorities may wish to assist developers in unlocking stalled developments that benefit the economic, social or environmental wellbeing of the surrounding area, they will need to consider carefully whether using their power is appropriate, given the risk of judicial review if it is not used properly. Individual decisions will turn on the facts and circumstances of each particular development but some of the overarching issues that local authorities will need to consider include:
• Whether the scheme is a proper use of its planning powers;
• Whether there is a compelling case in the public interest for the use of its powers; and
• Whether the public interest in the development proceeding outweighs any impact on the human rights of any third party likely to be affected.
Whilst we have seen these Section 237 powers used in cities such as Manchester and London on a regular basis in recent years, there appears to have been some change of heart in the capital. The Goldman Sachs headquarters development was brought under the spotlight in 2015 when the developers were unable to agree levels of compensation with adjoining owners. The City Corporation considered the position and, in that instance, decided against using its powers under Section 237 to become involved in the dispute.
Most recently, the 62 storey development proposed at 22 Bishopsgate (the former site of the ‘Pinnacle’ skyscraper) has run into difficulty due to its effect on the right to light of its neighbours and negotiations stalling for them to release their rights. Lipton Rogers owns the site and need to place substantial pre-construction orders for materials and procure the main build contract to hit its 2019 completion date. The reported £40-50 million steel and £30 million concrete packages are attracting attention and show the potential cost of a rights to light dispute.
Understandably the developer has appealed to the City of London Corporation for assistance in the face of such difficulties; however, at the time of writing, the Corporation – which granted planning permission for the revised scheme – appears unwilling to step in. â–
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Tom Kibblewhite BSc (Hons) MRICS
Director
Watts Group PLC
Tel: +44 (0)161 831 6180
