Ian McKenna illuminates the importance of placing rights to light and daylight at the centre of development planning.
Since the outbreak of Covid-19, most people in the UK have been spending more time at home. Our homes have doubled up as workplaces, schools and even gyms. The changing nature of our homes has spurred a renewed interest in the importance of good quality housing in people’s health and wellbeing.
Let there be light
Access to daylight is a vital element of quality and amenity, linking housing to health. It is well documented that bright natural lighting makes people more alert, improves mood, enhances morale and reduces the likelihood of various diseases. The government’s housing health rating system warns that inadequate natural light poses a threat to physical and mental health.
At the same time, Covid-19 is proving to be a major turning point for ESG investing as the pandemic alters society values. ESG considerations have quickly moved up the business agenda, with the pandemic once again accelerating how business reconsiders the link between environment, society, good governance and profit. Daylight is a freely available natural resource, so not only can it improve the health and wellbeing of building occupants, it helps to offset the energy usage from electrical lighting.
Throwing shade
As the demand for healthy homes grows, so too have the issues surrounding access to light as part of the development process. Impact on light is a common theme in complaints about planning proposals across the UK. A prime example of this is communities secretary Robert Jenrick recently blocking developer U+I’s plans to build a £500m mixed-use scheme at Albert Embankment because of the dominance of the towers among heritage buildings. The supporting report cited “significant individual reduction in daylight levels” and “an unacceptable increase in gloominess” for the residents of neighbouring Whitgift House and 2 Whitgift Street.
The refusal to allow consent for a major redevelopment in central London which would have been transformational and would have provided hundreds of new homes because (in part at least) it would have affected light to a small number of neighbouring buildings could be seen as disproportional. However, this certainly underscores both the increasing emphasis placed on light and the moving goalposts that developers have to navigate to get through the planning system.
Rights to light
In addition to the vagaries of the planning system, at Hollis, we have also seen first-hand how the renewed focus on health and wellbeing and ESG has led to an increase in the number of rights to light claims over the past 18 months. There are several ways that a building can acquire rights to light over neighbouring buildings or land, but the most common method is by “long user”. This means that, where apertures such as windows and glazed doors have received light without interruption for 20-plus years, an absolute and indefeasible right will arise.
It is an issue that is sometimes overlooked, but the right to light is a crucial piece of legislation that may scupper a developer’s bid to build even when planning permission is secured. Viewed as an inconvenience to the development process, developers traditionally revert to one of two options to mitigate the risks associated with rights to light.
Entering an agreement
If the developer knows that the rights to light of adjoining properties will be infringed, a financial agreement with those affected is brokered to stay ahead of the issue. The agreement is relatively straightforward; the affected party signs a waiver releasing the developer from its right to light obligations in exchange for compensation. Such an agreement is not without risk, as the affected party may not agree to accept money and may instead decide to take legal action and seek an injunction. However, this risk can usually be offset by insurance.
Right to light insurance
Right to light insurance may offer a solution to all, or part, of the risk posed to facilitate completion of the development. The policies have evolved in recent years to the benefit of developers, allowing different strategies to be employed depending on the individual risks assessed on each site. Insurance policies offer asset security to the developer, a funder and any future purchaser by providing financial compensation in the event of a claim. Of course, the existence of a policy does not prevent an injunction being sought or awarded, but it offers surety against any loss in such an event.
As effective as these methods are from an economic and business sense, they overlook the importance of social value and the growing role of ESG. This moment in time presents an opportunity for developers to consider the role rights to light play in healthier, smarter and more environmentally friendly spaces from the initial design stage.
Focus on light at the design phase
For developers, taking rights to light and daylight into account in the early design stages not only helps to tackle the issue from a financial liability perspective, but also signals their intent to enhance their health and wellness and ESG-related development strategies.
Right to light surveyors can define a development envelope for the design to sit within that will not impair neighbours’ rights to light and which also meets planning policy criteria. To help with this process, the Building Research Establishment has published a report titled Site layout planning for daylight and sunlight: a guide to good practice. The guidance advises on planning developments for good access to daylight and sunlight, and is widely used by local authorities during planning applications to help determine the impacts of new developments.
Addressing rights to light and daylight is no longer as simple as throwing money at the problem. It is a critical factor in the development of healthy buildings and it is clear that the best option lies in a collaborative approach which balances financial and impact performance.
Ian McKenna is head of rights of light and daylight & sunlight services at Hollis
