Developers left in the dark on light

The current tools in place don’t help to manage the growing problem of conflicts over light, writes Patrick Robinson, partner at Town Legal The inherent conflict between, on the one hand, neighbours of a development site intent on protecting enjoyment of levels of daylight, sunlight and the flow of natural light and air, and, on the other, a developer intent on optimising value from redevelopment, has for decades provided a battleground strewn with familiar casualties. Planning policy increasingly intensifies the ferocity of this conflict. London’s population is projected to increase by 70,000 every year and reach 10.5m in 2041 – a wave of growth not seen for a century. Just to meet demand, at least 66,000 new homes need to be built in the capital – along with space for tens of thousands of new jobs – every year. Are the tools in use to adjudicate over these conflicts really fit for purpose? In the picture here are the BRE Guide (Site Layout Planning for Daylight and Sunlight – a Guide to Good Practice, Paul Littlefair, second edition, 2011), the National Planning Policy Framework (NPPF), a new European Standard coming into play, the unsatisfactory position on rights to light, and section 203 of the Housing and Planning Act 2016. The BRE Guide The BRE Guide acknowledges that it is not mandatory and should not be seen as an instrument of planning policy; its aim is to help rather than constrain the designer. Furthermore, although it gives numerical guidelines, these should be interpreted flexibly since natural lighting is only one of many factors in site layout and design. In special circumstances the developer or planning authority may wish to use different target values. For example, in a historic city centre or in an area with modern high-rise buildings, a higher degree of obstruction may be unavoidable if new developments are to match the height and proportions of existing buildings. Therefore, this advice should be approached as a flexible guide. But is this how it has come to be used in practice? Considerable doubts exist. For better or worse, some adopted policies explicitly refer to the BRE Guide, and require assessment of impact to follow (perhaps slavishly adhere to) its methodology. A recent example of this is R (on the application of Rainbird) v The Council of the London Borough of Tower Hamlets [2018] EWHC 657 (Admin), where a permission for commercial units and 62 flats in two tall buildings was quashed as a result of faulty interpretation of the BRE Guide and the omission of some key factual material not reported to members. A straightforward example of an error of law having crept into the committee decision – although the facts illustrate the difficulties of the system struggling to cope with complex technical material that is inevitably difficult to synthesise and summarise accurately, particularly where, in a dense urban environment, flexibility is permissible. The open contest between the BRE methodology and an attempt to re-express the principles in line with the Draft London Plan came together in a recent planning appeal involving the Whitechapel Estate close to the Royal London Hospital (APP/E5900/W/17/3171437). A mixed-use development of 12 buildings, up to 23 storeys in height, secured permission on 21 February 2018. The inspector had to assess the differences of approach between that required by the BRE Guide and a less mechanistic approach. He considered the latter preferable, which offers encouragement to those seeking to march to the tune being played in the Draft London Plan. Planning policy The policy roadways are paved with good intentions, but just when one might expect to see the opportunity to bring them into alignment, disappointment sets in. The February 2017 White Paper “Fixing our Broken Housing Market” aimed high in the prime minister’s written foreword: “Our broken housing market is one of the greatest barriers to progress in Britain today… We need to build many more houses, of the type people want to live in, in the places they want to live. To do so requires a comprehensive approach that tackles failure at every point in the system.” A year later, the consultation draft of the NPPF, and the draft London Plan, which might be thought to hold out some prospect of further guidance, both ran dry of ideas. Surely a missed opportunity. Rights to light reform As we brace ourselves for a world outside the EU, cue a new draft European standard for lighting, which would appear to herald not a permissible lessening of lighting requirements in order to respond to the inevitable pressure to build taller and closer, but the precise opposite. This is to be found in a new Europe-wide standard set to be introduced in the summer that would supersede the current British Standard BS8206–2:2008. Then there is the seemingly intractable position on rights to light. Stirred by market concerns, the Law Commission moved into action five years ago, producing a consultation paper, attracting considerable interest and optimism that reform may be on the way. Its final report, Rights to Light, (Law Com No 356) emerged in December 2014, since when it has gathered dust. Despite the strenuous efforts of the Supreme Court in last week’s important decision on contractual damages (One Step (Support) Ltd v Morris-Garner [2018] UKSC 20) to state the legal code with precision, it would seem that, in both contract and tort claims, there will continue to be some way to go to understand how gains-based levels of claim will be absorbed into disputes involving heavily-contested neighbour confrontations in property matters, both above and below injunctible levels. Confusion reigns The use of powers (such as section 203) to override rights enjoyed by neighbours, by a local authority acquiring land for planning purposes, is always controversial, and rightly used sparingly – in many cases not at all. The absence of departmental guidance indicating how the power can safely be deployed is an acknowledged handicap in the system. Councils are left entirely to their own devices. These threads are all pulling in slightly opposing directions. A working group with the aim of starting to join together in a coherent fashion the difficulties which bedevil substantial development would seem to be worthy of urgent consideration.