“Neighbours matter” is a phrase that has perhaps become more significant during the current COV crisis, and if there is one upside to lockdown it has brought more communities closer together.
As we come out of lockdown and the economy starts to re-energise the “Neighbours matter” mantra is something that developers both large and small should not forget. There is no doubt society is becoming more litigious and we are seeing more emphasis being placed on the conduct of the parties in nuisance claims.
The courts have always taken a dim view of what they see as poor conduct, so it has never been more important to avoid antagonising your neighbours and to try and carry them with you instead. A relatively small investment in proper advice at an early stage can reap huge rewards.
In the first of two commentaries on the subject of neighbourly matters Stephen Mealings, a Senior Director at Anstey Horne’s Birmingham Office, highlights two areas where “Neighbours matter” during the planning and design development stages of a project
The planning process
Rarely do ‘Neighbours matter’ more than during the planning process. A well-constructed objection can undermine an otherwise sound scheme and consign it to the dustbin. One of the most common objections received by authorities to schemes both large and small relate to loss of daylight and sunlight.
Whilst planning authorities in Greater London have got to grips with this, requiring detailed daylight and sunlight assessment at application stage (if not before) where residential accommodation is affected, the situation across the regions is ‘patchy’ at best and many authorities still refer to the 45° code for low rise domestic schemes.
In Birmingham, for example, a detailed assessment is only a pre-requisite for schemes that fall under the ‘high places’ planning policy although, that being said, many officers now recommend that a Daylight & Sunlight assessment accompany applications as a supplementary document in order to address potential objections.
Full Daylight and Sunlight assessments can sometimes be complex undertakings and come at a cost. To overcome this a small number of specialists, including Anstey Horne, are now able to offer real-time preliminary appraisals using bespoke city-wide modelling and assessment tools. These preliminary assessments are often undertaken in a workshop environment with the design team during the pre-app phase.
Using these real time modelling tools potential impacts of different massing can be considered and the optimum solutions identified at an early point in the design process. Preferred solutions can then be worked up by the architect and a detailed Daylight & Sunlight assessment produced to accompany a formal planning submission. The advantage of this approach is that the planners are already aware of the consideration given to daylight and sunlight and will be supportive of the scheme.
Rights to Light (and other easements)
It is not just in respect of practical considerations during the planning or construction phase that “Neighbours matter”. Adjoining properties may also enjoy easements over a site either expressly granted or acquired by long enjoyment, and these can affect the viability of the scheme so it is important that the developer undertakes proper due diligence and research to ensure that any easements and their impact are understood.
The Right to Light is one such easement that can have a massive impact on the viability of a scheme and there are a number of common misconceptions associated with it such as ‘it only applies to residential properties’ or ‘securing planning consent will negate any claim’. Neither is true! Ultimately a right to light claim can end up in court and could result in an injunction being granted requiring a development to be halted or, even worse, partially demolished.
Fortunately the majority of rights to light claims are settled with compensation. Negotiations can sometimes be protracted and settlements based on a share of the developers profit on a scheme, rather than the diminution in value of the neighbours property are becoming more common.
It is possible to insure against the risk of a claim. Policies are bespoke products offered by a limited number of underwriters who carefully assess the risk based on a detailed rights of light assessment from a specialist such as Anstey Horne.
A savvy and experienced developer will consider rights to light at the start of the design process, if not earlier at site acquisition stage, so they can factor the costs of resolving any rights to light issues into their appraisals. Whilst it is pleasing to see this approach becoming more common there are still a disappointingly significant number of developers who only consider rights to light when a funder asks the question!
Just like the daylight and sunlight assessment a full right to light assessment is complex and time-consuming but specialists, such as Anstey Horne, can now undertake both preliminary and simplified design development studies early in the process using the bespoke software tools and city wide dimensionally accurate models referred to above. These studies are tailored to the requirements of the developer and their appetite for risk and can identify suitable profiles and budgets as well as strategies for dealing with affected neighbours.
In summary …
As I said at the beginning of this article “Neighbours matter” and It is never too early to take account of this. The on costs, disruption and delay that can be caused by a disgruntled neighbour can be significant and carrying the neighbours with you can make or break a successful project.
Here at Anstey Horne we can provide support and advice to developers to address all of these issues and identify solutions and strategies for their resolution. We have had an interactive model of London to enable us to undertake preliminary daylight and sunlight and rights to light studies for some time now and in March we gave a ‘sneaky peek’ at our model for Birmingham. I am pleased to confirm that our Birmingham model is now live and complete allowing us to undertake real-time indicative and preliminary Daylight & Sunlight, Rights of light and protected view studies for any scheme inside the inner ring road.