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Potential development pitfalls - rights of light

20 March 2009

Development plans can easily be thwarted by the existence of rights to light. It is not unusual for developers to strike agreements with neighbouring landowners whereby in return for some form of consideration, the neighbour consents to the development, even though it may affect his rights to light.

A recent case (Salvage Wharf Limited v Birmingham Development Company Limited and G&S Brough Limited) is interesting as it illustrates that the neighbour had not, after all, extinguished his rights to light by such agreement.

The developer had entered an agreement with a neighbouring landowner in 1999. In it, the neighbour acknowledged that the proposed development may adversely affect his existing rights to light, air and other easements and that he would not take action to enforce those rights. The development was duly carried out but not in accordance with the plans referred to in the agreement.

In 2006 the developer applied to the council for the registration of a light obstruction notice (under the Rights of Light Act 1959). If those affected do not take action to protect their rights to light within one year then any such rights will be interrupted.

The land owner successfully applied to the High Court, arguing that he was entitled to receive light through the windows of his property and asking that the obstruction notice be cancelled. The decision was later upheld by the Court of Appeal who said that the actual development work was substantially different from what was envisaged by the 1999 agreement and the agreement did not constitute an abandonment of the existing rights to light.

Developers should be cautious about relying on documentation in which neighbouring landowners agree to give up their prescriptive rights. This is particularly so if the plans have altered significantly in the meantime in a way that further reduces light to the neighbour’s property.

As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.

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Alasdair Garbutt LLB (Hons)
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Alasdair Garbutt
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