Exempt Development and Right to Light

Exempt Development and Right to Light

Postby DOC » Tue Oct 27, 2009 2:16 pm

I have a situation on my hands (well not really my problem) where a client of mine built a single storey extension to the rear of their house a couple of years ago, which I designed. The extension is exempt from planning permission (and I was happy to sign off on same).

Their next door neighbour is now taking my client to court to seek the demolition of their extension (and damages) on the basis of right to light/loss of light as result of the extension my client built.

My suggestion to my client, after telling them to get a solicitor, is that the fact that the extension tehy built is exempt from the need to obtain planning, this really dilutes or negates the neighbours case. I may be off the wall, but the fact is that my client did nothing wrong?

Any comment or similar experiences would be welcomed.
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Re: Exempt Development and Right to Light

Postby StephenC » Tue Oct 27, 2009 2:40 pm

Your client could get a Section 5 declaration from the planning authority confirming that the works are exempted development for peace of mind.
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Re: Exempt Development and Right to Light

Postby reddy » Tue Oct 27, 2009 3:07 pm

If i recall correctly rights to light are completely separate from planning they're a legal issue.

However like you said - the fact that it is an exempted development may dilute their claim in court. It probably needs a lighting expert to survey the levels of light in the affected room in order to prove there has not been an unacceptable level of loss.
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Re: Exempt Development and Right to Light

Postby henno » Tue Oct 27, 2009 5:13 pm

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Re: Exempt Development and Right to Light

Postby DOC » Tue Oct 27, 2009 5:42 pm

Thanks for the replies people. As Reddy said the right to light issue is a cival matter and not a planning issue. I am not worried in any way there is a breach of planning and/or exempted development.

I'm not 100% sure what question I am asking but I think the question is that if a building/extension is granted planning permission or equally is legimatley exempt from planning permission (and there is no physical trespass on the adjoining property) does the neighbour really have a potential case?

The other factor in this case which I find funny, and which is toatlly aside from the question above, is that the neighbour in question who is taking the case against my client, built a two storey extension to the rear of their own house along the boundary with the neighbour beyond them again (and didn't apply or get planning permission) so they didn't really care to much about how they would affect the light of their neighbour! I think the reason they are taking the case now against my client is that it is 7 years since they completed their own extension.
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Re: Exempt Development and Right to Light

Postby wearnicehats » Wed Oct 28, 2009 3:00 pm

I'm not sure that exemption from planning necessarily saves you but you would need to take advice from your LA planning dept

You should read the BRE's "Site layout planning for daylight and sunlight - a guide to good practice" - extract attached
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Re: Exempt Development and Right to Light

Postby DOC » Wed Oct 28, 2009 4:02 pm

Thanks
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Re: Exempt Development and Right to Light

Postby millennium » Wed Oct 28, 2009 8:27 pm

If the loss of light claimed is in the 7 year old extension your neighbours have built then they do not have a case as a right to light takes 20 years to establish. Otherwise you have a problem regardless of your extension being an exempted development. Generally, though, the courts would view the outcome as a compensation issue rather than a demolition issue. The fact that your neighbour's extension is two storeys won't neccessarily help you as it also may be an exempted development and even if it is not (you can check the rules with the local planning office) it is irrelevant unless the window with the claimed loss of light is in that extension.
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Re: Exempt Development and Right to Light

Postby saintleger » Mon Nov 30, 2009 11:52 am

Long time lurker, first time poster. I remember checking this out before, and my understanding is that the much bandied about right to light is actually a legal right to a very very low level of light. Your legal entitlement is not to retain the level of light you currently enjoy, no matter how long you have enjoyed it - your legal entitlement is to a certain minimum level of light, expressed in lumens, which is just bright enough to thread a needle by without complaining about it if you're sitting beside the window at midday, or something like that. It's a lot lower than the BRE standard, and wouldn't give people much comfort, which is why most Local Authorities refer to the BRE standard in their development plans. I must see if I can dig out the articles.
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Re: Exempt Development and Right to Light

Postby Philip Smith » Wed Dec 01, 2010 4:43 pm

Hi. We are Surveyors, specialising in Right to Light issues. The legal Right to Light is completely separate from the BRE Daylight & Sunlight tests associated with site design or applications for planning permission and it certainly is the case that a scheme can be given planning permission (or may be permitted development) and yet still come 'unstuck' with regards to a claim for a legal injury regarding right to light. There are set standards for what is acceptable - basically about half of the room at table top height needs to be adequately lit to avoid there being a legal injury. The remedy for a legal injury can be compensation but might otherwise be an injunction resulting in the need for demolition of an offending part of a building. My colleague posted the previous comment which gives our website (www.righttolightsurveyors.co.uk) - you could also check out a couple of blogs we have posted at www.smithmarstonllp.co.uk/blog - or phone and we would be happy to discuss.
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Re: Exempt Development and Right to Light

Postby onq » Fri Dec 03, 2010 3:39 pm

Was there not a thread on this on archiseek a whole back?

From the redoubtable wikipedia

http://en.wikipedia.org/wiki/Right_to_light

As you can see this is a law most often exercised in England but the 1832 prescription act came in to play here too.

The original right ot light from memory concerned a jeweller who needed a certain quantum of light to carry out his work.
Such rights to light might not apply to ordinary dwellings in Irish law, in relation to which the more nebulous term "amenity" arises.

In Ireland there was reliance in development plans of the quantum of light arising on IIRC 1st March of the year, such that light should not be reduced below three hours of direct sunlight to the private rear of the house assumign such or greater had been enjoyed beforehand.

In some cases the 45 degree rule has been cited, working from the cill of the affected window towards the site of the proposed development.

More recently the BRE Digest has been cited

There is no comfort here, I'm afraid:

LAND AND CONVEYANCING LAW REFORM ACT 2009

http://www.oireachtas.ie/documents/bill ... /a2709.pdf

None of the above comments by me can be regarded as authoritative and I doubt if a section 5 will address this matter, given that the issues dealt with therein centre on planning law only.

It *does* seem ot make a bit of a nonsne of the exempted development ergualtions, doesn't it, if someone can challenge them under rights ot ancient lights?

I am not persuaded by English precedent in such matters, where even "between the commons" style houses can be very densely packed.

Has anyone got a definitive Irish case in relation to this?

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Re: Exempt Development and Right to Light

Postby onq » Fri Dec 03, 2010 3:45 pm

Philip Smith wrote:Hi. We are Surveyors, specialising in Right to Light issues. The legal Right to Light is completely separate from the BRE Daylight & Sunlight tests associated with site design or applications for planning permission and it certainly is the case that a scheme can be given planning permission (or may be permitted development) and yet still come 'unstuck' with regards to a claim for a legal injury regarding right to light. There are set standards for what is acceptable - basically about half of the room at table top height needs to be adequately lit to avoid there being a legal injury. The remedy for a legal injury can be compensation but might otherwise be an injunction resulting in the need for demolition of an offending part of a building. My colleague posted the previous comment which gives our website (http://www.righttolightsurveyors.co.uk) - you could also check out a couple of blogs we have posted at http://www.smithmarstonllp.co.uk/blog - or phone and we would be happy to discuss.



Thanks you very much for posting your links and comment here.

The cited case "HKRUK II (CHC) Ltd v Marcus Alexander Heaney" seems to be utterly disastrous from a developers point of view and incredibly biased towards the existing owners of property - it seems to make a total nonsense of the planning process in Britain.

I'll be reading the rest of the blog with interest.

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