Jerome Webb provides an overview of the new RICS Rights of Light professional standard.
The third edition of the RICS Rights of Light Professional Standard for England and Wales was published in March and will take effect on 1 June 2024. It supersedes the second edition, which was published in 2016 as a professional guidance note.
There was a need to review and update the guide following key changes in related areas. To undertake that review, an expert working group was formed of specialist practitioners and chaired by Andrew Thompson FRICS from Anglia Ruskin University. The group took sections of the former guide and, according to expertise, reviewed and updated each section to reflect the current position and desired direction for the standard of work in the field. This was then reviewed collectively by the EWG and in detail by the RICS regulatory team. A consultation and further review by the EWG followed, with the final version then cleared for publication by the RICS.
The last guidance note in practice
The second edition was a guidance note and therefore its impact on the day-to-day work of the professional surveyor in this field was limited as it provided recommendations for accepted good practice rather than mandatory requirements. Typically it was used as a point for reference when needed by rights to light practitioners or as a reference for those not practising exclusively in this field to better understand its workings and what the key aspects are when considering and dealing with a right of light matter.
The new edition: what has changed?
There have been a number of updates and changes to the document. However, the most significant change is that it is now a professional standard and not guidance. That means that it “may include:
- mandatory requirements, which use the word ‘must’ and must be complied with, and/or
- recommended best practice, which uses the word ‘should’. It is recognised that there may be acceptable alternatives to best practice that achieve the same or a better outcome.”
The purpose of this standard is to assist the RICS member in:
- “providing accurate and comprehensible information to clients with as little room for misunderstanding as practicable
- ensuring that, in the event of a dispute over the impact of rights of light, the facts are set out in a manner that assists the parties and their legal advisers
- safeguarding the interests of owners, investors, insurance providers and others who rely on an RICS member’s report/evaluation of RoL, whether assessing the viability of a potential development or the negative impacts of a development proposal by others.”
One of the other significant changes in this publication is the focus on professional conduct. It states that: “Where an RICS member is appointed as an RoL surveyor there should be a real benefit to the customer in terms of the requisite competence, ethical behaviour and customer care provided. RICS members must undertake their work with due skill, care, and diligence and with proper regard to the technical standards expected of them. The purpose of this professional standard is to assist RICS members in understanding those technical standards.”
Due to the recent entry into this field of non-chartered and non-professional surveyors, there has become a need to support those that do work in this field professionally and also to provide clients seeking specialist advice and support in this area with the certainty that, if they appoint a regulated firm, they will receive this level of professional conduct.
Other key changes include an update to account for the provisions contained in section 203 of the Housing and Planning Act 2016. It also includes a dispute resolution and pre-action protocol (see p30). This is a statement of good practice and was drafted by Paul Tonkin and Jonathan Karas KC. This is a significant change and sets out the content of introductory letters between the parties, the exchange of vital and detailed information between the parties and the process of dispute resolution.
It is also updated to include the newly created rights of light APC pathway. This too is important for the profession to fully embrace as a part of driving up and maintaining professional standards across the industry. To this end the standard has, at Appendix D, a very comprehensive guide for the APC candidate to follow as a guide through this specific pathway. It sets out the RICS requirements, what APC candidates must do, competency requirements and helpful advice for the candidate on the presentation, case study and interview itself.
The new standard also has a greater emphasis on the need for the surveyor to seek legal advice at the appropriate time and to ensure that the client is aware when and where that is needed. It also makes it clear that surveyors should use caution when using the term “actionable” in reports to the court, and the surveyor’s opinion must clearly state that the ultimate decision rests with the court.
There is now also clear direction given on insurance-related work and “members are reminded that the RICS is a designated professional body and as such RICS members who satisfy the registration requirements may give insurance-related advice”. As the role of insurance within the rights of light profession continues to evolve and develop, the need for high-quality and professional reporting to underpin any insurance strategy is more critical; the new standard will support this. The standard has been extended to include available extensions, which are things such as delay costs and consequential losses.
How it affects surveying-related practice
This new standard will have a more significant effect on the relevant area of surveying practice than its predecessor did. It is a standard and not a guide and as such carries more mandatory weight. It also has two key appendices that will directly affect the future of the work in this area.
One is the new APC appendix which sets out in detail the lessons learnt from the process to date and how current candidates can be best guided on their path through this highly specialised field. The second is the new Rights of Light Protocol for Disputes. This will help to ensure good practice and act as a benchmark for how disputes should ideally be managed on both sides. Both will have a direct effect on rights of light practice. The standard overall will, through its comprehensive approach, ensure that the industry is brought to a best practice level playing field, which is good for clients, the industry and the profession.
Conclusions
This is a material step forward in terms of the professionalisation of this key area of surveying. It will drive up standards of work and engagement and help draw together the profession. Clients will know that if they choose a regulated firm of surveyors, they will be represented professionally, ensuring that their interests are best protected.
It is perhaps inevitable that further updates and additions will be needed as this area of professional practice continues to evolve. New case law could also change aspects of the standard.
Jerome Webb is a director at GIA and member of the RICS expert working group on rights to light
Photo by Suhyeon Choi/Unsplash
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