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Date
10 July 2014

Rights to Light: A new dawn

On 2 July, at the west end offices of CBRE, a panel of experts spoke at the rights to light breakfast seminar co-hosted by Mishcon de Reya, CBRE, WPA and CPA about these changes and the impact they will have going forward.

THE PANEL

Daniel Levy, Head of Property Litigation, Mishcon de Reya

Chhavie Kapoor, Legal Director, Mishcon de Reya

Nick Lane, Founder & Director, Point 2 Surveyors

Fraser Pratt, Insurance Broker, Willis Group

Chair: John McGhee QC, Barrister, Maitland Chambers

Transcript

Rights to Light: A new dawn

Mishcon de Reya

CBRE

WPA Westminster Property Association

CPA City Property Association

Stuart Robinson
Chairman of UK Planning, CBRE

Good morning everybody.  Nice to see so many people here at CBRE.  I’d like to welcome you all today.  For those of you who don’t know me, my name is Stuart Robinson and I head up the Planning Team, a science which is often considered even more opaque than the one we are going to discuss today.

Jace Tyrrell
Executive Director, WPA & CPA

Rights to light has really risen up the agenda in the last few years.  We were really pleased that Mishcon de Reya wanted to partner with us, bring our members to the table, bring an excellent panel and discuss this very important issue for the industry. 

Daniel Levy
Head of Property Litigation, Mishcon de Reya

What we decided to do is explore the changes in approach following this decision using a case study.

Rosemary McQueen
Strategic Director for Built Environment, City of Westminster

I need to make sure that when people apply for planning permission that we are able to deal with it efficiently.  Now one of the issues has been rights to light and sometimes it’s seen that this is a kind of ransom that people move into.  Now the role of the local authority is not to move into managing people’s proper private rights and so what we have done is, we have inserted a policy into our planning documents which means that we will take action but only after normal legal negotiations have happened between the two conflicting owners. 

Simon Heilpern
Partner, Levy LLP

The whole market was extremely worried about the Heaney case in terms of injunction being the order of the day.  The courts have seemed to have moved on from that, going more towards compensation and more towards the conduct of the developers in getting their ground prepared and so on.  The problem being that it is still extremely unclear as to what the result will be and someone, somewhere, really needs to test the courts to get some further clarity.

Edward Moody
Asset Management Director, Minerva

Well, rights of light issues have been in the forefront of developers’ thinking for about the last eight years.  The tide has started to change; the Coventry case is informing opinion and perhaps moving back towards the developers with the balance of power and there is still no certainty on what the level of compensation will be.  Those are key points for a developer considering a scheme going forwards. 

John McGhee QC
Barrister, Maitland Chambers

But I think there is a number of implications for developers, I think it means in particular they have to think very carefully about how they approach adjoining owners, they need to think very carefully about their conduct in the period before the developer starts because I think that may be scrutinised very, very carefully by the courts if it were ever to come to court. 

Nick Lane
Partner, Point 2 Surveyors

I would say for developers it really is very much about a more open approach, rather than shying away from rights of light they should be dealing with it up front, planning to manage them and avoiding insurance as the default position.  It is a combination of negotiation and insurance.  For the adjoining owners, they’ve got to be more open; their behaviour is going to be under more scrutiny than it has done previously.  If they are serious about obtaining an injunction, then they need to do something about it early rather than sit on their hands and wait. 

Fraser Pratt
Insurance Broker, Willis Group

Post Coventry and Lawrence, the rights of light insurance has been dealt with more as part of the strategy as opposed to just the solution to deal with risks.  Insurers are far more happy now to allow negotiations to occur with the backing of an insurance policy to pick up the pieces if things don’t go to plan. 

Chhavie Kapoor
Legal Director, Mishcon de Reya

So there is some uncertainty that this case has created but I think at the same time there are some guidelines and principles we can take, for example, good behaviour from the developer, also good behaviour from the adjoining owner as well and that’s going to be a real crucial factor now, together with lots of open correspondence, people just acting honestly and openly to show that they have not tried to steal a march on the other party and I think that’s the key from this case.

Daniel Levy
Head of Property Litigation, Mishcon de Reya

I think our job is to give strategic advice when someone comes through our door, be they a developer or be they an adjoining owner of land so as they can decide what their interests are and how best they can have a strategy around that to protect them.

Mishcon de Reya

CBRE

WPA Westminster Property Association

CPA City Property Association