Raymond Cooper is a Consultant Property Lawyer
Proposition: It is unlikely that the owner of a building whose right to light is extinguished under s.237(1) of the Town & Country Planning Act 1990 could at that stage apply for a judicial review, but judicial review might well be available on the making of the underlying compulsory purchase order under s.226(1).
In his comments on my earlier post “Solar Panels and the Right to Light”, Bill Killick raised some wider issues regarding, in particular, the power of planning authorities who have acquired land under the Town & Country Planning Act 1990 (the Act) s.226(1) to use the additional power under s.237 of the Act to override rights of light and other easements enjoyed by adjoining owners over the property acquired. This is a very topical subject; I refer for example to the article in Property Week, 29th June 2012, by Sarah Townsend, which refers to representations to be made to the Law Commission (which is to tackle the issue soon), and to s.237 as a “councils’ secret weapon”, (referring to the use of s.237 by the City of London at 20 Fenchurch Street and its consideration of its use at 100 Cheapside, 1 Mitre Square and 12/14 New Fetter Lane) – see also David Stevens’ article in the Estates Gazette for 14 July 2012.
Mr Killick raised three points which he thought should be addressed, I will deal with them in reverse order starting with (3) “The use by local authorities … to threaten to use its powers under s.237 of the Act to effectively override a land owners’ rights”. I will approach the issue by posing the question of whether a neighbouring land owner whose rights are to be extinguished might be able to apply for judicial review.
The answer I suspect is that once the land to be developed has been acquired by the planning authority it would be exceedingly difficult, if not impossible, for a neighbouring owner to take such action. S.237(1) applies where land “has been acquired or appropriated by a local authority for planning purposes” i.e. under s.226 of the Act. Once the acquisition has been made it would seem that s.237(1) applies automatically; the point of challenge must be the compulsory acquisition itself, which will normally be under s.226(1)(A) of the Act which confers power to acquire compulsorily any land in the area of a planning authority “if the authority think that the acquisition will facilitate the carrying out of development/redevelopment or improvement on or in relation to the land”. At the later stage where s.237(1) is being used it would seem unlikely that the court would grant the dominant owner a declaration that the original acquisition was ultra vires the acquiring authority.
This is clearly a very wide power but it is not unlimited. S.226(1)(A) provides that a local authority must not exercise the power under s.226(1)(A); “unless they think that the development, redevelopment or improvement is likely to contribute to the achievement of any one or more of the following objects:-
a) the promotion or improvement of the economic well being of their area;
b) the promotion or improvement of the social well being of their area;
c) the promotion or improvement of the environmental well being of their area.
The Encyclopaedia of Planning Law and Practice (Sweet & Maxwell) expresses the view that the use of the word “think” in both sub-sections (1) and (1) (A) does not exempt the decision making process from the normal criteria of control applied by the courts in judicial review. The learned authors suggest that this is perhaps one of the reasons for it being made plain in Circular OPDM 06/2004 (Compulsory Purchase and the Crichel Down Rules) Appendix A that compulsory purchase orders will not be confirmed under s.226(1) unless:-
a) there is no other appropriate power under which the land can be acquired; and that
b) any exercise of the power will have to be in implementation of a clear strategic framework, founded on an appropriate evidence base – preferably subjected to public consultation;
c) any relevant planning framework should be as detailed as possible;
d) whilst the full details of the scheme may not be worked up and planning permission obtained, there must be a clear and compelling end-use that is compatible with a clear strategy for achieving it;
e) the extent to which the proposal will contribute to the well being objectives is crucial;
f) the development project is financial viable.
The italics are mine and I stress the words because I think they are very important in the present context.
The learned authors of the Encyclopaedia go on to say that a further probable reason for these policy statements is to ensure that, despite the draconian terms of the statutory provision, an appropriate balance between public and private interest required by Articles 8 and 1 and Protocol 1 of the European Convention of Human Rights is satisfied.
S.226(1) powers have traditionally more often than not been used by local authorities for the assembly of site for major (i.e. city centre) developments. The distinction which Mr Killick makes is between that kind of purpose and the purpose of facilitating a single development where indeed (and this is the implication of his comment) the principal objective may be to enable the developer to avoid having to pay a huge sum of money to adjoining owners with rights of light in order to “buy off” the threat of injunctive relief. This is a very big subject and I will go no further than the above comment save to acknowledge that I have some sympathy for Bill Killick’s arguments; I do think that at the acquisition stage a challenge could well be mounted where the purpose is to facilitate the construction of a single building and in particular where the principal objective is to make available s.237 for the expropriation of adjoining owners’ established rights.
Incidentally, the words in s.237(1) “whether done by the local authority or by a person deriving title under them” could easily at first sight be taken to limit the exercise of the power to local authorities and their lessees and other owners of interests derived from the freehold. However, the drafters of the legislation obviously had this in mind and it is dealt with in the interpretation section s.336(8)(b) which provides that “references to a person deriving title from another person include references to any successor in title of that other person”.
This post will become far too long if I comment in detail on Bill Killick’s other two points, but they are linked, so I will do so briefly. Mr Killick thinks there should be a clearer definition of what is “injuctable”; this relates to the point canvassed above because of course the principal effect of extinguishment under s.237(1) is to deprive the adjoining owner of the right to injunctive relief (the dominant owner will still be entitled to compensation – see below). In practice I think it is impossible to provide a clear definition of when a nuisance (which is what interference to a right to light amounts to) is or is not injunctable. The leading case is Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 where A L Smith LJ said :-
“in my opinion, it may be stated as a good working rule that:-
- If the injury to the plaintiff’s legal is small,
- And is one which is capable of being estimated in money;
- And is one which can be adequately compensated by a small money payment;
- And the case is one in which it would be oppressive to a defendant to grant an injunction –
then damages in substitution for an injunction may be given”.
These are only working rules, and it should be noted that the matter is in any event in the discretion of the court; the primary remedy in nuisance is injunctive and (to quote again from Shelfer: “The court has jurisdiction to award damages instead of an injunction……but the jurisdiction does not mean that the court “is a tribunal for legalising wrongful acts” by a defendant, who is able and willing to pay damages” and “The judicial discretion to deprive a claimant of his prima facie right…..should not be exercised “except under very special circumstances”.
Examples of recent cases where the court has declined to award only damages and has granted injunctions are HKRUK II (CHC) Limited v Marcus Alexander Heaney [2010] EWCA 2245 (Ch) (where the injunction was a mandatory one requiring the removal of parts of the developed building) and Dennis Regan v Paul Properties Limited (1) Peter Lahaise (2) John Griston (3) [2006] EWCA Civ 1391.
A threat to a developer of injunctive relief preventing (or requiring serious and unprofitable modifications to) a new building also answers Mr Killick’s first point which referred to “The significant difference between the compensation figures recommended by the specialist rights to light surveyors and the settlements agreed”. There is no space here to go into the relatively complex methods of calculation used by specialists, but the proper measure of damages awarded in lieu of an injunction is the diminution in value of the dominant tenement and the methods of calculation adopted by specialists are I think no more than a means to the calculation of that end. In the real market, a developer will often be prepared to pay a lot more in order to be able to carry out his development, avoid injunctive relief, and make his development profit.
At the end of the day this is a question of public policy and it will be interesting to see what conclusions the Law Commission reaches. Meanwhile it is worth noting that other jurisdictions have taken a very different approach; in the Preface to the First Edition of Rights of Light: The Modern Law by Stephen Bickford-Smith and Andrew Francis (Jordans) the learned authors note that in New Zealand and Australia the law has been changed by statute to restrict the acquisition of the rights to light, and that in some states in Australia, jurisdiction is conferred on the relevant Supreme Court to modify or extinguish easements on specified grounds. The learned authors also note that in the USA there is no general recognition of a right to light in State law or Federal law.
There is room for more than opinion here; there are those who would say that developments should not be hampered by ancient law developed in a time when buildings were lit largely by candlelight. That argument (put forward in the Midtown case) continues that in the case of many modern buildings (particularly offices) electric lights are in practice switched on all the time i.e. office workers do not really work by daylight (and of course the quality of internal lighting is improving constantly and can now be virtually equivalent to daylight). Proponents of this argument would say that all that is needed is for planning authorities to apply their own daylighting standards in considering applications for planning permission for development. However, taking the other point of view, I think most estate agents would confirm that an “airy” and “well lit” (by daylight) building is likely to command a higher rental value than one with restricted daylight.
