Any potential change to a site’s built volume is assessed in terms of a jelly mould that suggests a virtual gothic cathedral, writes Simon Allford
England and Wales has an ancient legal system and fantastical layering of laws, all rooted in long-forgotten logic. We build plenty, but what we design is defined by the very particular circumstances.
Still expanding from an ancient base are the ironically opaque laws on a window’s Rights to Light. Light is measured by computer but still as multiples of the number of candles required to facilitate a proximate person’s reading of The London Times. After 20 years, said window’s rights are inviolate in perpetuity and can only be reduced in negotiation at the perpetrator’s expense. As a consequence, where we once had contractors build billboards to deny access to light, now lawyers construct virtual billboards, both seeking to prevent windows ever gaining a right to light. In this field such is progress!
As London rebuilds we continually breach window rights and any potential change to a site’s built volume is immediately assessed in terms of a jelly mould that always suggests an extraordinary virtual gothic cathedral - a mould we can build to but, for fear of injunction, must never transgress. This jelly mould is dynamic and frequently redefined by Rights of Light surveyors’ changing view of a neighbour’s reasonableness.
Throughout history the small group of expert surveyors in the field have shared experiences and clients, acting one day for and another against each other and their clients. Their unwritten code has always noted that their own success depends on the understanding that London’s raison d’être is to be rebuilt. Consequently they have developed reasonableness into an art form, usually settled in a small dark room. Their clients acquiesce as they too know London is a very small town where that which goes around comes around. So a system unlikely to work in theory usually works in practice.
That said, in recent years, there have been dark rumblings. So much so that the magnificently titled Association of Light Practitioners has been formed to make sure they still get into said dark room. Recent case law has - not unusually for a system that some have accused of unnecessarily creating work for the legal industry - generated a series of decisions that encourage bullying and greed. Regan v Paul, HXR UK v Heaney, and Tamares vFairpoint are now familiar references in discussion. Where once injunctions were the final threat to stop work on site and encourage settlement, they have now been tested and proven to enable the removal of floors of a built project. Subsequent decisions ensure compensation is now argued not on the reasonable value of light lost, but on one-third of the profit from the adjacent development that windows’ loss of light enables: logical, but in an absurd, impractical way. The concern is that the system is creaking and may soon work neither in theory nor practice.
While looking at these wonderfully Byzantine, encrypted and anomalous rules we are also trying to map a route through the planning process. But note these rights are of no relevance to planning (which explains the case where floors were built and torn down). Planning, understandably, concerns itself only with daylight in residential rooms, with guidelines not laws.
Planning does have one last card that can be called upon to manage the greed/need of a window but, of course, it is a measure of last resort not to be relied upon. If a project is proven to offer some very significant public benefit, the Planning Authority can utilise Section 273 of the Town and Country Planning Act, which can override a window’s right to light.
These labyrinthine codes for light have become a test of wit, will, endurance and finance. We all need to be kept in check by the reasonableness test.
Simon Allford is a founding director of Allford Hall Monaghan Morris