Rights to light: changing cityscapes and the challenges for developers

00:00:05 David Lee, Host

Hello and welcome to ‘Podcasts by Brodies’. My name is David Lee and in today's episode we're examining the issue of the right to light.

In urban areas where the population is high and space is limited, new development faces real challenges. One issue at the centre of claims and disputes is the right to light, which has become increasingly problematic in recent years.

I'm joined to discuss this by two experts. Lisa Stratford is a legal director at Brodies who specialises in property-related disputes in England and Wales, and Neil Lovell-Kennedy is a chartered surveyor and a rights to light specialist at Proximity.

Welcome to you both, and I'll come to you first, Lisa, let's talk definitions first of all. Can you tell us initially what is a right to light and how does someone acquire it?

00:01:01 Lisa Stratford, Legal Director at Brodies

Technically speaking, a right to light is just an easement, so that essentially means it's a right that one piece of land enjoys over another one. A right to light allows the owner of a property to benefit from the passage of natural light over an adjoining propert,y to the benefiting property’s defined apertures, so they'll usually be windows, but not exclusively, that are in the benefiting owner's property. Rights to light arise in various different ways, but most commonly, and the ones that we'll be talking about today, are those that arise through long use, meaning effectively 20 years of uninterrupted use to the relevant windows or apertures and without any consent or express grant from the owner of the land that the light is passing through.

00:01:46 David Lee, Host

Ok, thank you, Lisa. And does the right to light apply across the whole of the UK?

00:01:52 Lisa Stratford, Legal Director at Brodies

It applies throughout England and Wales, and it also applies in Northern Ireland, although that's outside my jurisdiction, but there are no rights to light in Scotland.

00:02:01 David Lee, Host

Ok, why is that?

00:02:03 Lisa Stratford, Legal Director at Brodies

It's just the way the law has developed, I think.

00:02:06 David Lee, Host

It feels like it's discriminated against those of us north of the border, but Neil, I'll come to you. Why is the right to light becoming a particular problem in fast-growing cities like Leeds and Manchester, for example?

00:02:19 Neil Lovell-Kennedy, Director at Proximity

Well, rights of light aren't new. They've always been an issue. They've been around for a long time.

As you've alluded to in the question, they've become much more of an issue over the last 20-30 years or so. What's driven that is a combination of factors. Firstly, there's more demand for accommodation now, particularly residential, but not only residential space.

That development - that demand - is accommodated in existing city centres where there is normally in the UK what's called a tight urban grain; buildings are quite close together.

Consequently, any development that increases the massing of a building that was previously on a site is going to impact on neighbouring buildings.

The way court cases have been decided over the last 20-30 years has encouraged people to make rights to light claims. Claims are being forced into being settled at higher and higher amounts. It's becoming increasingly difficult to bring developments forward without having rights to light risks dealt with, either by design or by insurance, because simply, you can't get them funded.

People won't put the cash up to build your schemes unless you've got your rights issued. Developers are well aware of this, and not surprisingly people who advise neighbouring owners are also well aware of this, so rights of light has simply just become a means where people can extort quite large sums from developers.

Hence it's become a major issue, and that point was recognised by the Law Commission when it had its review of rights of light in 2014. And interestingly enough, it was recognised specifically by the House of Lords in a case in 1904 where it said the courts ought to avoid the situation of allowing rights of light to become a means of extorting sums from developers for no real loss, which is exactly what we've got now.

00:04:39 David Lee, Host

OK, thanks very much, Neil. Really interesting and when we talk about a right to light, is there an amount of light that's considered adequate for a building and how do we measure or quantify that?

00:04:55 Neil Lovell-Kennedy, Director - Proximity

Slightly paradoxically, rights of light have got nothing to do with light at all.

The reason for that is quite straightforward in that the amount of light per se you get at any time is dependent on the time of day, time of year, whether it's overcast, whether it's bright sun or not. I mean, at this stage I could be slightly cynical and say the reason why you don't have rights of light in Scotland is because it's always dark, but that's not the reason why you don't have them!

So the way we actually assess rights of light now, and it's a technique that's been around for about 100 years, is that we assess how much sky you can see through a window opening, which is what has the right of light. The rights of light are attached to window apertures, and we can calculate how much of the sky you can see through the window at a particular point, behind that window.

We can then calculate what area of a particular room can see the sky. We talk about sky visibility, and we can calculate how that view of sky will be impacted by a new development. So it's essentially a 'before' and 'after' calculation of the floor area that can see a certain amount of sky. Now this technique, as I said, has been around for 100 years or so. It's got limitations, which indeed was recognised by the Court of Appeal when it was first used in a court case in1935, but it has essentially stood the test of time. There is a movement and a lot of debate in rights of light now about more modern techniques that can present the impact more accurately.

Those have been discussed in the courts but not adopted by them. But to be honest, changing the method of assessment isn't, in my view, going to address in any way the fundamental issue that now surrounds rights of light and the problems they present to the development process, and in that context it must be always borne in mind that the development process is a key economic driver for this country and it's important. You need to have a good development industry.

00:07:26 David Lee, Host

OK, thanks very much Neil and Lisa, if somebody claimed a right to light had been infringed, what would the legal process typically look like? And what might be the outcome if an infringement to right of light was confirmed?

00:07:43 Lisa Stratford, Legal Director at Brodies

It's important to bear in mind that actually before it gets to the point of a dispute, the developer needs to have assessed potential rights to light at the very outset of imagining their scheme and decided whether anybody has a right to light and how it's likely to be infringed. They need to try and address those as best they can by whichever method - which we'll talk about later - sooner rather than later, because it's only at that point if these matters aren't resolved that it can cause a real problem for developers in terms of the litigation and legal process. 

If they're not resolved, those affected by any planned development might then be able to pursue court action. And that could be seeking an interim or final injunction, which could ultimately either halt the development altogether, or require a completed development in theory to be cut back - so the property to be amended, to be demolished in part even and rebuilt to avoid impacting or minimise any impact on neighbouring properties and infringement of their rights to light.

Injunctions are a huge problem. Interim injunctions can be obtained relatively quickly. And as I said, can bring developments to a halt. So it's a real threat in terms of the developers’ timescales and costs.

A claimant that's seeking an interim injunction will usually be required to give a cross-undertaking in damages, which is a huge commitment to a claimant because they will effectively need to indemnify a developer if they are granted the injunction to stop the development from continuing.

They'll then need to have that injunction upheld at a final hearing. If it isn't upheld, then any losses that the developer suffers as a result of the delays that it suffered due to this interim injunction, theoretically a claimant has to compensate the developer for those. So it is a real serious undertaking for a claimant, but it can be catastrophic to a developer to have their development put on hold for months if not years, whilst you get to a final hearing.

00:09:51 David Lee, Host

Ok thanks very much, Lisa. And just going on from that, Neil, to talk about maybe some of the wider issues and the wider challenges that developers are facing. There's quite a list really, isn't there?

00:10:04 Neil Lovell-Kennedy, Director at Proximity

A huge list. It's important to always bear in mind that development is basically a risk management business. You are faced with a series of obstacles you need to overcome to get your development out of the ground.

Developers by their nature have to be pragmatic problem-solvers, very often through gritted teeth, but that's what they have to be.

To get a scheme off the ground, first of all, you've got to acquire the site, that can be a very fraught business itself. You then have to design a scheme which that site can take. You then have to ensure that you can get consent for that scheme. You then have to probably go through two or three design variations before you can get the planning consent in place. You then have to cost out the development process itself, and make sure that's coming in on budget. Bearing in mind that development can often get take two or three years to get to that stage, your budget can change a lot in that period. You can then start on-site and then you start to get people coming out from around the site saying "oh, by the way, I've got a rights of light claim here. Please stop what you're doing."

So it's a real problem for developers because rights of light traditionally come to the fore once you're on site and committed to a build project, which means that from a developer's point of view, you really have nowhere to go other than to sit down and try and talk a settlement. But the people on the other side know exactly what your position is as a developer.

You've started, you're about to start, you need to have this development built by a certain time scale to hit the market. They really do use it as a means of extorting very large settlements, which bear no relation to what the injury is those people are actually suffering.

Traditionally, an interference with the right to light is a claim in what's called nuisance, and I do stand to be corrected here by my legal expert on this podcast. But the traditional remedy for that is what's called 'injurious affection' - which means you need to show how the property which is being impacted will be damaged, in terms of a reduction in the value. So at least compensation was traditionally linked to the impact.

Compensation now, is linked to how much the developer can afford to pay to make this problem go away, and it is not in any way uncommon to see compensation amounts being paid which are significantly in excess of the value of the building suffering the loss, let alone the loss of value being suffered by that building.

So it really is becoming very disproportionate. And again that's been recognised by the Law Commission and that's what the Law Commission review was intended to look at.

00:13:28 David Lee, Host

I mean is it getting to the stage, Neil, where you could even say that neighbouring owners are potentially holding developers to ransom, in certain cases?

00:13:37 Neil Lovell-Kennedy, Director at Proximity

Absolutely. I've come across that many, many times. I've come across situations where developers are paying very substantial six-figure sums to get things resolved and out of the way, because it's cheaper for them to do that, than to fight it.

I had one case recently that went to mediation and it was quite amusing actually, because the party on the other side was a developer in his own right and he knew exactly what my client was going through, because he's been through the same thing as well as a developer. My client and the person who made the claim ended up actually becoming quite good friends over this despite the fact my client ended up paying over £300,000 in compensation to the person who claimed, and both of them accepted the fact that though there was no real injury to his building at all. It's just that he could do it and we all knew he could do it, and it wasn't taken personally. It's just part of the process now.

00:14:45 David Lee, Host

Lisa, do you want to come in there?

00:14:47 Lisa Stratford, Legal Director at Brodies

Yeah, I was just going to say, I talked a lot about injunctions, but the alternative remedy that the courts can award when you're seeking an injunction is damages, which, as Neil says, should theoretically be linked to the value of your building as a claimant. But actually the damages that people are negotiating end up being the risk to the development, the additional development costs, the costs of a legal battle that could go on for two years and it's completely disconnected now from the loss that could arguably be suffered by the person whose right to light is being infringed.

00:15:21 David Lee, Host

Ok, thanks very much, really interesting again. Lisa, you talked earlier on about developers needing to think about rights to light issues at the very beginning of the planning process for any development. But what about those cases that do go all the way that come through all the way to court. Any sort of particularly interesting issues that have arisen from those cases that have gone the full distance recently?

00:15:46 Lisa Stratford, Legal Director at Brodies

Rights to light claims and the law around them is driven by case law. So for every case that we see reported, there will be a thousand others that have been dealt with prior to getting into the court and that's part of the problem - you're only seeing a tiny percentage of all these examples of issues arising.

Neil mentioned earlier that 120 years ago, the House of Lords said that these rights shouldn't be used to enable people to extort money from people wanting to do developments essentially, and that's obviously really serious language. But there was then a period more recently where it was assumed that damages would often be awarded instead of the injunction that we talked about before.

And then 15 years ago, in the Heaney decision that Neil was acting in, it caused real ruffles because the developer in that case was ordered to effectively cut back its development, even though it had been completed and was occupied by a tenant by the time of the hearing. It caused real alarm because even though the developer was the one who had been proactive in trying to reach a settlement with Mr Heaney, and had went to court to try and get a declaration saying it could proceed with its development, it ended up being subject to this really substantial and quite difficult-to-carry-out order - having tried to do all of the right things where the injunction was still granted in favour of Mr Heaney.

It's put neighbouring owners in such a strong bargaining position because, no developer wants to get into that kind of argument that could last for years and cost thousands and thousands in professional costs alone.

There was another case in 2016 where someone had added effectively an external staircase to their building, which infringed the neighbouring restaurant’s light to their kitchen. Even though it was accepted that the actual value of that loss to the restaurant by losing that light was only £886, the injunction was granted, forcing the person that had put up the staircase to relocate it.

Part of the reason for that was that the developer in that case knew fine well it was going to infringe those rights, promised it wouldn't do it and then did it anyway. So it was, you know, a very unneighbourly and high-handed manner in which they had acted according to the court, and that was part of the reason the injunction was granted in that case. It's an example of where a developer's conduct is really important and that's why that early engagement is so necessary.

00:18:34 David Lee, Host

Neil?

00:18:34 Neil Lovell-Kennedy, Director at Proximity

In those cases that Lisa has talked to, the conduct of the parties was so important.

There was another case - the Forsyth-Grant vs Allen case - where the developer was trying to be very proactive. The adjoining owner was incredibly obstructive and this ended up going to the Court of Appeal, and the Court of Appeal, throughout the injunction claim, didn't even award costs. So the conduct of the party is really important.

00:19:16 Lisa Stratford, Legal Director at Brodies

Just on a brighter note - pardon the pun - the Handston case was fairly recent. In that case, an interim injunction wasn't granted even though both parties accepted that there would be an infringement and the claimant; i.e. the neighbouring owner who was going to be impacted by the development, offered the cross-undertaking and damages - the court still didn't award it. The reasons for that included the balance of convenience, which is a whole topic in itself. But the facts of that case are potentially a little bit more encouraging for developers in that an injunction isn't always going to be granted. It does perhaps give developers more bargaining power than they've had previously following the Heaney decision.

00:20:02 David Lee, Host

Ok, thanks very much. Neil, you touched on mediation earlier on.

What are the legal avenues, including mediation, that are available to address right to light issues, short of going to court?

00:20:16 Neil Lovell-Kennedy, Director at Proximity

The first one, which I think every developer should look at - particularly if they're doing development works which are supported or working with local councils as a development partner - is the use of appropriation powers.

These are statutory powers which can be used to override third party rights over land, which would include rights of light. It doesn't mean that the people whose rights are being overridden just lose those rights. They are entitled to compensation under the compulsory purchase code, which means they are entitled to a claim for injurious affection.

But the key thing is, once appropriation powers are used, the injunction risk goes. That's gone totally, so that 'extortion element' to negotiation doesn't arise and things are settled. They're resolved at sensible prices and developments go ahead. This is really important in areas where development, particularly regeneration developments are required, and where land values don't really cover the cost of development because you can't then afford to be paying out several hundred thousand pounds of compensation for rights of light on top of probably £100,000 + for rights of light insurance.

It just doesn't work. If you've got buildings around the site that haven't yet acquired rights of light because they've not been there for 20 years, you can use what's called a 'light obstruction notice', which enables you to block the light to a window for 12 months. Once it's been blocked for 12 months, it's another 20 years before that window acquires rights to light by prescription or long user. Developers should use those.

I've come across sites where I've been asked to advise a developer just as they're about to start on site and I've said to the developer, you are aware that had you served these notices when you first acquired the site two years ago, you wouldn't have any issues and they say, "oh no, we didn't know that". Being proactive and well advised is really important.

00:22:42 David Lee, Host

Ok Lisa, do you want to come in there?

00:22:45 Lisa Stratford, Legal Director at Brodies

I absolutely agree with what Neil said. Light obstruction notices are a fun little tool; it's a piece of paper that we serve, but it's effectively an imaginary wall that goes up outside of this building that's close to acquiring its rights to light. And I quite like that because I'm bit of a nerd! It's a neat little trick if you can time it correctly.

00:23:08 David Lee, Host

And Neil, you've given us some ways of addressing issues short of going to court. You did touch earlier on about mediation - tell us a little bit about mediation and your experience of that.

00:23:22 Neil Lovell-Kennedy, Director - Proximity

Mediation is a non-binding dispute resolution approach that was devised to stop cases going to court. It's intended to get parties around a table to agree something which they can both live with. I don't think anybody ever really walks away from a mediation happy with the outcome. It's just something they're prepared to tolerate, more than anything else.

I had another case more recently where a claim came in for over £2.5 million. We felt that the appropriate claim was closer to £50,000 on a good day, so there was a little bit of a difference there. And when you started to drill down into the justification for the £2.5 million claim, there was a completely spurious argument behind it.

My issue with mediation is that there's no cross examination process and had that expert been put in court and cross examined by counsel, he would have been absolutely destroyed because it was just a complete and utter fantasy what he was asking for. The settlement was agreed about £300,000.

Our client was an insurer - the right to light risk was insured and this claim was being fought on behalf of the insurance company. We said to the insurance company, look, this is the cost they've come down to, we can't recommend that. It's way too much. But they were overjoyed with it, because their approach was "well, it gives us certainty, it's done and we don't have to go to court. It would cost us an awful lot more to go to court. We're happy with it despite the fact it was a massive inflationary sum."

I did point out to them, that's great for you, but the consultants acting for the people who've just got the £300,000 are going to remember this when the next one comes out.

00:25:59 David Lee, Host

Ok, thanks very much Neil, Lisa anything to add, particularly on mediation?

00:26:04 Lisa Stratford, Legal Director at Brodies

Mediation generally - if everybody goes away equally unhappy then you've achieved your goals for the day. But on that point about the insurer that is a real problem because it's one of the drivers that causes the insurance premiums to be so high in the first place.

I completely understand why the insurer was happy to have drawn the line under it and not got into lengthy, contested litigation. But it's very short-sighted when they're going to have to deal with every claim that comes to them potentially in the same way, whether it has any merit or not.

00:26:41 David Lee, Host

And we've touched there Lisa on a number of ways of avoiding going to court. You've touched on some of this before, but if mediation and all the other areas that have been discussed already, fail, just tell us briefly again, recap on what the options are next, what might happen next?

00:26:59 Lisa Stratford, Legal Director at Brodies

If you can't find any solution, the person who is being injured - if you like - by the development, will be threatening an injunction which nobody wants to deal with, and the alternative to that is they're awarded damages.

At the moment there's not an awful lot a developer can do other than enter some kind of mediation or negotiate with them, unless they're willing to take it to court. And realistically, what developer is going to want to get into proceedings - even if they know that they're right - that require them to spend 12, 24, 36 months in court, incurring professional fees and not being able to carry on with the development or risking completing their development and then being told to tear it down because they progressed without having resolved these issues?

It's a really difficult position for developers to be in and all of that comes from the fact that they can be held to ransom, based on some of the previous case law.

Neil talked about local authorities using their powers to effectively override rights to light, and I think that would be a really helpful approach. There is an alternative which doesn't require you to be able to persuade the local authorities to take action (which is not always easy); that alternative is not completely unprecedented. There's a mechanism for restrictive covenants, which are a different type of right, but where you can apply to the Lands Tribunal to have those either modified or discharged on various grounds.

One of those grounds is if that restrictive covenant is impeding the user of the land for a reasonable user, which you are generally evidenced by saying, "well, it's impeding this use for which we have planning permission".

So you've already got your planning permission and then you apply to the Lands Tribunal to have this restrictive covenant discharged or modified so that you can carry on with your development. Something similar to that for rights to light would be very sensible, and it would give the developers a little bit, not even more power, but even out the playing field a little bit compared to how things have been.

Ultimately, as Neil said, development is really important for the economy and generally. We've all heard about the need for housing developments, for example, albeit this doesn't just apply to residential. Part of the reason that the Handston decision that I mentioned before didn't go the way of the person seeking the injunction, was that they were developing effectively social housing. There's a massive need for that in this country as well. Any additional costs and delays to developments of that kind of property are going to make it unviable. There has got to be a better way than having every case try to develop the law on its own and take two or three years to do so.

00:29:52 David Lee, Host

Ok thank you. We've got a lot going on here, Neil, so you've touched on some of these issues already in your early answers, but, how would you summarise right to light claims in terms of their impact on how developers are behaving, how they're approaching new projects in cities?

00:30:12 Neil Lovell-Kennedy, Director at Proximity

Good developers are very mindful of the issue. Some developers are able to look at acting quite proactively. I've had one developer who owned a site for several years and we identified from day one that if there was any substantial development proposed, certain buildings were going to cause a major problem. So over a few years he's actually acquired those buildings. He's bought them and so he's not going to make a claim against himself and what he's done is he's put a deed of release between those buildings on his side. So that has removed the risk.

Now obviously buying those buildings has cost him money, but actually he sold those buildings on without any rights of light against his development site, and it hasn't really impacted on the value of those buildings at all. So, it's been an in-out transaction for the same amount on both sides. So that's worked quite well. But he's held the site for five or six years now, and developers don't often work like that. He's unusual in that he does.

You can often design out potential rights of light issues as well. People think, "oh, it's a tall building, that's going to create the issue." However, very often the rights to light issues are caused by the massing of the building lower down, not the height of it. You often get quite a lot of light around towers. What you don't get is a lot of light over the bottom part of it where you've got buildings of the same height all the way around it.

So you can often 'design' out of a right to light claim by saying "we'll put the extra massing and height on this part of the site, it will mitigate the risk here and here and here" - so that's a way of doing it. But again, all of this is about being proactive and looking at it.

00:32:20 David Lee, Host

And moving on from that Neil, how can we improve what is a very complicated and difficult landscape for a lot of people? Is there any conversation, for example, on whether rights to light should be abolished altogether?

00:32:36 Neil Lovell-Kennedy, Director at Proximity

This question was asked actually by the Land Commission in their recent study. I have to be a little careful here because I know most of the respondents because they're all rights of light specialists, but very few of the respondents suggested that rights of light should be abolished.

And ok, whether they had a vested interest we’ll park for the moment. I actually would have been interested to see responses had it been asked in a slightly different way, in that if we could imagine a situation where rights of light did not exist, and somebody suggested we created them - bearing in mind the content of this podcast we've been talking about for the last half hour or so - anybody who said, "oh yes, I think they're a really good idea" would probably be sectioned.

Because there's no real justification for them anymore, not with the planning system we have. Rights of light originally came around at a time when there was no controls over what you did with your land. Nowadays there is a lot of control as to how you develop and use your land and to get rid of rights of light now would require primary legislation.

Nobody's going to do that, you know, with the best will in the world that is not going to happen. Something that might be worth exploring, well two things. First of all, Lisa's idea about treating it like a restrictive covenant, which I think has a lot of merit, but also linking whether or not planning laws should be changed.

So if a development has been through the planning process - the full consultation process, the full application process and has consent, whether a direct grant from the council or on appeal - why shouldn't third party rights, which might impact on that development, be overridden automatically? People would still be entitled to compensation, but it would be based on injurious affection and more importantly it would remove the extortion element of negotiations.

00:35:13 David Lee, Host

Lisa, any comments from you on that on whether or not the right to light could disappear completely or certainly in some cases?

00:35:20 Lisa Stratford, Legal Director at Brodies

I agree with a lot of Neil's comments. The likelihood of there being a policy change that abolishes rights to light is just nil, to be frank. But it's not beyond the realms of possibility for there to be a decision and guidance from one of the higher courts - if any developers are brave enough to take the litigation that far - that indicates or confirms or provides guidance, shall we say, that damages really ought to be linked to the loss that's being suffered, rather than any sums that you could persuade a developer to pay you, effectively by holding them to ransom.

It would be nice to wave a magic wand and make it all very neat and tidy, but that's just not how rights of light have developed over the last 100+ years.

And I very much doubt that it's going to be a priority for the government to do anything about it. But I think the possibility of dealing with it as part of the planning process is sensible and probably a lot more achievable than having something specifically dedicated to rights of light.

00:36:32 David Lee, Host

Ok, thank you. And we'll draw to a a conclusion now. Lisa, what advice do you have for developers on how they should approach right to light claims? You were saying bake it in from the very start of the planning. What's your broad advice, given everything we've discussed?

00:36:52 Lisa Stratford, Legal Director at Brodies

Absolutely, the most important thing is to think about it at the very beginning and start planning for it. There might be benefit in just getting insurance. There might be benefit in trying to resolve matters with neighbouring owners.

It's quite likely if you do the latter, before you go to your insurer, you might be putting yourself in a worse position, so be careful and take advice on that at the outset.

Consider whether your development has to have as much of an impact as you might have originally planned or whether it could be mitigated like Neil said.And get good advice from people like Neil, who know how these things work and what the impacts are likely to be.

00:37:37 David Lee, Host

And any advice from you, Neil?

00:37:39 Neil Lovell-Kennedy, Director at Proximity

I would suggest that property owners be mindful of the fact that what they own is essentially a potential development site. Every building has a cycle, and the cycle comes around to redevelopment eventually. Very often, if you think of rights of light more as a property management issue rather than a development issue, you can resolve potential rights of light risks in advance of any development coming forward.

If you can bring your building to the market - a building which is nearing the end of its economic life, but over the last 10-15 years or so, you have proactively managed out rights of light risks with the neighbouring buildings - you will add a lot of value to your building and your site because you're de-risking its future redevelopment.

So maybe you should also start to look at rights of light not just as a development issue, but also as a property management issue as well.

00:38:51 Lisa Stratford, Legal Director at Brodies

A light obstruction notice would go a long way, but if you're doing that on the regular.

00:38:53 Neil Lovell-Kennedy, Director - Proximity

Exactly, but also it's not just that, Lisa, it's if you've got a situation where someone approaches you for temporary access rights or anything else which they require from you, you could actually use that as a Trojan horse to get a rights of light deed in place as well. At the time neither party is looking at redevelopment. There is a benefit in you both putting in a mutual deed anyway.

00:39:25 Lisa Stratford, Legal Director at Brodies

Yeah, it works both ways.

00:39:27 David Lee, Host

Just to come to a conclusion here, Lisa, you've told us what you think maybe should happen. What do you think will happen? If you had to reach for your crystal ball and look a few years ahead, let's say five years. It's arbitrary, but it's a number. What changes do you think we'll see in the area of right to light?

00:39:52 Lisa Stratford, Legal Director at Brodies

The cynical part of me says probably not an awful lot. Unless new cases move through the courts. However, the more optimistic side of me says that the country does need development and people are perhaps going to be, or local authorities are going to be, more persuadable, more amenable to the idea of using their powers to override rights for developments, particularly that might have a social angle that they're keen to bring through. I would like to see more of that. I would particularly like to see a policy shift in that direction, but that might be too optimistic even for me.

00:40:31 David Lee, Host

Neil, any optimism from you?

00:40:33 Neil Lovell-Kennedy, Director at Proximity

People are becoming very aware of the consequences of rights of light on the development process. I'd like to see some more pressure being borne by the development industry for change, but not to abandon rights of light because that's not going to happen - that's not achievable. Some form of legislation where the use of appropriation powers become much easier to arrange.

Whether it's done automatically with the grant of consent, and it's important that it's linked to the grant of consent and a consent that's been through the process. I don't think that would be correct to apply for developments that are being done under permitted development rights. Because what the planning process looks at in a lot of detail now, is the impact of a development on neighbouring buildings. Permitted developments don't do that, and so there is a difference.

I think that's probably the most achievable way forward here and one that would have a really positive impact, without prejudicing people's rights to claim.

00:41:54 David Lee, Host

Ok, thank you very much indeed to Neil Lovell-Kennedy and to Lisa Stratford for their great insights today on the fascinating topic of the right of light.

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