Hammersmith and Fulham Council’s decision has implications for Rights to Light
The Crosthwaite family’s dispute with Chelsea FC over the reduced level of light they believe they would suffer in their home due to the club’s redevelopment plans has thrown Rights to Light into the headlights.
An important element of the design and construction of a building, the impacts of light and Rights to Light of neighbouring properties, must be at the centre of design considerations and well thought out at an early stage of the planning process. All neighbouring property owners’ rights should be considered as early as possible to ensure any issues can be nipped in the bud sooner rather than later.
Whilst this high-profile case would appear to be a unique matter, it is in fact an increasingly common problem. As our cities become more densely populated with taller buildings, neighbouring owners are raising issues around the potential impact they may have on the level of light, or access to light that their building will still achieve. The potential for cases on the scale of Chelsea FC’s may increase too.
The impact of Hammersmith and Fulham Council’s decision
Hammersmith and Fulham Council’s resolution to appropriate the land at Stamford Bridge using their statutory powers under s203 of the Housing and Planning Act 2016, means the Crosthwaites attempt to put in place an injunction on Chelsea FC is no longer possible, and the family are limited to claiming statutory compensation.
Statutory compensation is assessed based on the diminution in the value of the affected building(s) resulting from the loss of light. This is usually a smaller amount than the neighbouring owners can negotiate when the Rights to Light exists. In these circumstances, the neighbouring owners will therefore be worse off because the development will progress as planned and they will usually receive less compensation than they would otherwise do, were they to negotiate a commercial settlement.
However, s203 can be challenged by judicial review and it appears the Crosthwaites are intending to take further legal action to challenge the validity of the decision to appropriate.
The impact of a Judicial Review
A Judicial Review must be brought promptly and within three months of the decision. There can be a wait of between six months and a year for a case to go to full hearing, although urgent cases can be heard much sooner, if necessary. However, the first permission stage of the proceedings may only take a matter of weeks and many cases are settled following the decision of the court to grant permission.
A judicial review would only lengthen the process for Chelsea FC and any element of risk they face will continue until the challenge has run its course. Whilst an injunction against the football club is, at present, no longer possible, Chelsea FC looks set for a further legal battle.
How developers can avert Rights to Light issues
Developers shouldn’t rely on this as a test case and expect councils to come to their rescue using their statutory powers to override easements. The best option, where possible, would be to design out any Rights to Light issues during the design process using digital modelling and specialist Rights to Light experts. But where that is not feasible, developers should seek to negotiate the outcome with the neighbouring owners before they become committed. Insurance can also be utilised to cover financial risk.
It must be said that this is a special case, due to the threat of losing not only a major project that will deliver community facilities and investment in the area, but also the risk of losing one of the world’s best-known football clubs to a different borough, should it not be able to adequately redevelop its existing site.
With other English football and rugby clubs currently considering plans for expansion, there is much developers can learn from the situation at Stamford Bridge.
Consideration for neighbouring building owners and their needs should be part of the design and planning process as well as the ability to future proof stadiums for future expansion. Failure to do so can land developers out in the dark with financial penalties or, worst of all, construction works pulled back due to Right to Light claims from neighbouring properties.
By Ian McKenna, Partner, Malcolm Hollis and Rights to Light expert