Seeing the light: rights of light in the post protocol era and early resolution of disputes

Early approach

While speculative rights of light claims have always been a feature of large developments, this has increased in recent years, with firms operating on a no-win-no-fee basis, knowing developers are often backed by insurance, pushing baseless or low value claims.

While developers may have previously paid off these claims to remove that risk, the increase in the volume of claims has changed their approach, and they are increasingly arming themselves early with detailed analysis of the impact on neighbouring properties, enabling them to push back and shut down unmeritorious claims at an early stage, through legal routes or negotiation.

Developers are also being mindful of the risk of claims right from site acquisition, through to design and development, and mitigating them from the outset by engaging with neighbours early where there is a potential infringement to agree a swift resolution. 

The RICS Rights of Light Professional Standard and Protocol provide a framework for swift resolution of disputes with which all RICS registered surveyors are expected to comply. A copy of the Protocol can be found here. 

Insurance

This proactive approach goes against the previous wisdom of not breaking cover. This is in part due to the evolution of insurance now available, which has moved away from the previous default of “wait and see” policies towards proactive/reactive policies – taken out at an early stage – under which insurers support proactive negotiations with neighbours.    

The rise in the cost of insurance has also meant that it is now used in a more bespoke way for specific identified risks, or for covering of truly unknown risks, following detailed analysis, rather than blanket cover. 

Approach of the Courts

While the grant of an injunction is not the “default” remedy, the panel agreed that the courts instinctively do not like wrongdoers, and if there is a sufficiently serious  actionable interference, an injunction will often be the appropriate remedy. 

However, the panel questioned whether focussing too much on remedies was putting the cart before the horse. The first question to be answered is whether there is even an actionable interference in the first place. 

Traditionally, this has been answered by applying the Waldram methodology. Whilst the panel agreed that Waldram still had a role to play, in more complex disputes developers now have a far more extensive technological armour available to them and the panel felt that sometimes a “back to basics” approach of asking whether the development genuinely interfered with use and enjoyment of the neighbouring property was required. 

This gave rise to important questions around the relative importance of natural light, view and outlook.

Top tips for early settlement

The panel were very aligned on their top tips for early settlement, their key advice being:

• Assess impacts early, risk assess your impacts and your adjoining owners and have a clear strategy in place;
• Work with local authorities, securing support for the use of  section 203 where possible;
• Relationships are key to early resolution of disputes;
• Well-pitched Part 36 offers and mediation (at the right time) can be the final push needed to reach agreement. 

All in all, the future looks bright for early resolution of rights of light disputes.

Authored by Lucy Redman.