A right to light has been enshrined in common law since time immemorial — 3 September 1189.
The Prescription Act updated the law in 1832, before a further amendment in the 1920s, when Percy Waldram created the present-day rights-of-
light measure based on “lumens per sq ft”. This was predicated on the amount of candlelight needed to read the small print of the Times, and for decades this rights-of-light regime has quietly trundled on.
Then, in 2010, a High Court battle over a development in Leeds dragged the anachronistic rights-of-light rules into the 21st century.
In an instant developers were under threat of being forced to dismantle completed schemes if neighbours’ objections were successful — about which the City of London property world in particular was up in arms.
How, for example, could anyone start a scheme worth hundreds of millions, when an injunction could blow that project apart?
The City of London corporation has brokered an uneasy truce by using section 237 of the Town and Country Planning Act to override objectors — if there is a significant economic benefit. But it is clear that rights of light as a whole need an overhaul.
How, developers ask, can a system based on candlelight and medieval law be appropriate in today’s complex world?
At the same time, should London and big regional cities be turned into New York, where blocks of skyscrapers create canyons at street level where the sun never shines?
It is welcome, then, that the British Property Federation, the RICS and the Royal Institute of British Architects, are supporting a study to bring the rights-of-light regime up to date (professional).
What, then, should this study address?
First, all sides need certainty of timeframe.
At the moment an objector can seek an injunction at any time, right up to the completion of a development. Funding and regeneration are difficult enough to achieve as it is, without a sword of Damocles hanging over schemes.
We also live in world of “scammers”, in which people are sharp enough to buy a flat next to a proposed development and seek a rights-of-light payment worth more than that flat itself.
A six-month limit for objections from a time named by the developer — whether it is when it won consent or funding — would create certainty for all sides.
Creating a fixed tariff for rights-of-light claims is a more difficult idea.
At the moment, the payment is calculated on the reduction in profit the offending developer’s scheme would make if the claimant’s light were to be restored, with the caveat that a judge has the final say.
This system isn’t perfect, because every development is different, and any attempt to create a fixed scale would quickly fall apart.
Everyone has a right to light, but there is a right to invest, regenerate and create jobs, too.
The balance has shifted too far towards claimants trying to make a fast buck. It needs to shift back towards those who are taking the true risks.