Purcell NicolaNicola Purcell, senior associate in property litigation answers, in summary, yes: if the Local Authority becomes the land owner and successfully exercises its powers under Section 203 of the Housing and Planning Act 2016.

An individual can acquire a right of light in several different ways. There can be an express right or one can be acquired through long use if light has been enjoyed through a door or window (without interruption) for a period of not less than 20 years.

Rights to light can be an extremely contentious area as they impact on development, especially in larger cities such as London where there is a demand for development, especially high rise buildings.

A right to light can not only prevent development but it can also substantially eat into a developer's profit (if, for example, the developer is having to pay out compensation to home owners to take account of the rights of light they currently enjoy which will be infringed or impacted by the development).

With the ever-increasing pressure on housing, developers and Local Authorities need to look at all options when looking to develop a piece of land.

You may have seen in the press a story about Chelsea Football Club wanting to redevelop its football stadium but its plans are being thwarted by one homeowner who is claiming the development will infringe his rights of light. If a home owner obtains an injunction then that could be the end of the development. However, if the Local Authority were to acquire the land in question owned by Chelsea Football Club, could it override the homeowner's rights?

The answer is yes. Under Section 203 of the Housing and Planning Act 2016, the Local Authority has the ability to override easements and rights in land which have been appropriated for planning purposes. Compensation must be paid to the person whose rights have been overridden, although the claim is restricted to one of 'injurious affection' only, ie compensation is assessed on the basis of the loss in value of the land as a consequence of this interference or breach of the rights

It is worth noting that this power can also extend to a successor in title to the Local Authority. Both home owners and developers need to be aware that this power cannot be exercised freely. There are statutory requirements that a Local Authority would have to fulfil to be able to override rights or easements, which include obtaining planning permission for the land question.

Where Section 203 is used rights are not extinguished. Instead, they remain in existence and are enforceable except to the extent they are overridden in order to allow the development to proceed. Where a Local Authority exercises its powers and goes on to sell the land the fact that the rights have been overridden should be documented on the title. Any potential purchaser can then see that this power has been exercised from reviewing the registered title.

In practice, a Local Authority would have to establish that the interference with the rights of light is necessary to allow the development to proceed or the infringement cannot be avoided or released by agreement with the affected owners. Local authorities would typically also need to consider whether the development would contribute to the social, economic or environmental wellbeing of the local area.

All reasonable efforts need to be made to secure the release of any rights but in practice, especially when dealing with large numbers of people, this is not always possible. Exercising this right is not always the most straightforward or cost effective way of proceeding for a Local Authority due to the considerations it must take into account and process that it has to follow.

If a Local Authority exercises this power, affected owners should be given the opportunity to make representations and the Local Authority should address those before any decision is made. In practice, the Local Authority should write to all affected owners and initiate a consultation process.

This can be an extremely complicated area for developers and Local Authorities. It is necessary to get advice at an early stage and ensure that the proper process and all necessary steps are taken. However, it is an option that is not always considered in relation to rights of light, but with the current pressure on housing, it may well be something that is used more and more in the future.

To find out more please contact Nicola on T: +44 117 915 4631 or E: nicola.purcell@footanstey.com

Tags: Property LitigationReal EstateProperty, Infrastructure and Construction