Russell-Cooke helps client reach settlement in Oxford Street Right to Light claim

Ed Cracknell, Partner in the Russell-Cooke Solicitors, property litigation team. Harriet Allsop, Associate in the Russell-Cooke Solicitors, property litigation team.
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Ed Cracknell, Harriet Allsop

Russell-Cooke's property litigation team has helped reach a settlement on behalf of its client Sirosa in a highly contested Right to Light claim which involved a proposed development on London’s Oxford Street.

The case of Sirosa Properties Establishment v The Prudential Assurance Company Limited was settled on confidential terms. Russell-Cooke partner Ed Cracknell and associate Harriet Allsop acted in the case, and instructed Guy Fetherstonhaugh KC and Philip Sissons, both of Falcon Chambers.

Right to Light - the story so far

With continued (and even intensified) development in crowded urban areas the amount of light received by buildings has become a more valuable asset, and more vulnerable to interference by neighbouring developments. The legal right to receive light through windows in buildings is usually not created by any express agreement but simply by the passage of time, e.g., where it has been enjoyed, without interruption, for a period of twenty years.

The owner of a right to light might be said to have a legal remedy where the amount of light received through the windows falls to a level beneath that which is needed for the comfortable enjoyment of the property. The measurement of how much light is necessary, and the impact of neighbouring development has over time become the field of expertise of Right to Light surveyors who conduct complex computer modelling.

Right to Light surveyors typically rely, at least in part, on ‘Waldram’ analysis which has been the mainstay of right to light analysis for over 100 years. Some practitioners argue that more modern techniques should be used, if not in replacement of Waldram analysis then to supplement it. Such techniques might take into account, not just direct light from the sky, but other sources of light such as reflected light and electric lighting.

If an actionable loss of light is established, a further question that may arise is whether the light should be protected by an order restraining the infringement from occurring at all, or whether financial compensation for the infringement would be sufficient.

These issues come before the court from time to time and in Midtown Ltd v City of London Real Property Co Ltd (2005) the High Court decided that an infringement of a right to light received by an office building in Central London amounted to an actionable interference even though users of the office routinely relied upon electric light.

Whilst the court did not go as far as to say that reliance on electric lighting should deprive the owner of the right to a remedy at all, electric lighting was a factor that led to the court deciding that damages were a sufficient remedy.

In the case of HKRUK v Heaney (2010) a developer was ordered to cut back a development it had completed (and which was occupied) on the basis of interference with rights of light, suggesting the Courts were willing to intervene. This was also seen more recently in Beaumont Business Centres Limited v Florala Properties Limited (2020) where the court declined to diminish the importance of Waldram analysis and did elect to order an injunction.

Partner Ed Cracknell said: “Commentators hoping that the Sirosa case might provide further clarification or advancement of the law of Rights to Light and in particular the use of Waldram analysis and other methods of calculation will no doubt be disappointed. But with such fertile ground for disputes, it is inevitable that other cases will come to court in the coming years”.

For further information about resolving Right to Light disputes contact Ed Cracknell or Paul Greatholder.

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