New guidance on rights to lights claims

In his thought-provoking article (Establishing a protocol for rights of light), Jeremy Stephen issued a rallying cry for the development industry to support the creation of a new protocol for dealing with rights to light disputes. At the end of his article, he referred to a protocol to be published by the RICS around early information sharing in rights to light claims. That protocol has now arrived and is incorporated within the new edition of the Rights of Light Guidance Note (RICS, March 2024). As its authors, we believe that it represents an important step forward for developers and neighbouring owners alike. What is the Rights of Light Protocol? The protocol (formally known as the Protocol for Disputes relating to Rights of Light or the Rights of Light Protocol) was originally conceived as part of a suite of property protocols. Starting originally with the Alienation Protocol, the idea behind the property protocols is to set out best practice steps to minimise disputes in particular areas of property law which can typically be flashpoints. Where disputes do arise, the protocols encourage parties to deal with them in a constructive manner, hopefully avoiding full blown litigation. The Alienation Protocol was followed by the Alterations Protocol and subsequently the Boundary Disputes Protocol. The Rights of Light Protocol is the latest member of the family and, as mentioned, has been formally adopted by the RICS. When should the Rights of Light Protocol be used? The protocol is intended to be used where a developer wishes to proactively resolve possible rights to light issues on a development scheme and/or where an adjoining owner is concerned that a development will interfere with their rights to light. In most cases, the developer will start the process by approaching the adjoining owner. However, the protocol also provides a process for the situation in which an adjoining owner has not been contacted by the developer and wishes to initiate a discussion themselves. While use of the protocol is not mandatory, the objective is that it will be seen by all parties as an exemplar of best practice in dealing with rights to light issues and will be widely adopted by the industry. A key advantage of the protocol is that it sets out clear expectations in relation to timescales for responses and levels of information to be provided. As these expectations become the industry norm, we hope that they will provide developers and adjoining owners with more certainty and will ultimately speed up the resolution of disputes. What does the protocol do? The protocol is deliberately simple, with just three substantive stages: Introductory letter and initial response This is the process by which either a developer or an adjoining owner can initiate a discussion on rights to light by sending the other an introductory letter. The protocol sets out the sort of information which should be provided with the introductory letter and deals with various practical and logistical matters – for example, the provision of undertakings to meet the adjoining owner’s costs and requests for access to carry out internal inspections. In our experience, these seemingly straightforward practical matters can often be a source of delay at the early stages and so the protocol encourages them to be dealt with at the outset, setting out clear expectations as to what is reasonable. The protocol encourages the party receiving an introductory letter to respond within a reasonable period, which will generally be no more than 21 days and, again, sets out clear expectations as to what should be included within the letter of response. Exchange of information Following exchange of an introductory letter and letter of response, the protocol envisages that in most cases the next stage will be a physical inspection of the adjoining property followed by an exchange of technical information. Again, the protocol sets out expectations around timescales – for example, it will usually be reasonable for the developer to provide any technical assessment and request any further information it may require from the adjoining owner within 14 days of any inspection. Requests for further information should generally be responded to within 14 days. Dispute resolution Following exchange of information, the parties’ advisers should meet in order to narrow the issues between them. In most cases that meeting will be on a without prejudice basis. The parties should aim to agree a list of agreed and unagreed issues within 21 days of the initial meeting. These issues may be a mixture of technical, legal or commercial issues. For example, the parties’ advisers may be able to agree to the technical assessment on its own terms but may disagree as to the conclusions to be drawn from the assessment. This process will often be an iterative one, involving multiple discussions and it is hoped that in many cases the parties will be able to reach agreement through this process. However, where either party is concerned that this is not the case, they can choose to move matters forward by issuing a formal letter of claim on an open basis, to which the other party is to issue a response, in each case setting out that party’s position on the issues in dispute. However, rather than moving directly to litigation, the protocol again encourages the parties to make a further attempt to narrow the issues and to consider alternative forms of dispute resolution – for example, mediation. What does the protocol not do? The protocol is deliberately focused on the processes which parties should follow when attempting to resolve rights to light disputes. It is not intended to alter the parties’ underlying legal or commercial positions. For example, the protocol acknowledges and makes provision for the fact that there may be cases in which a developer believes that an approach by an adjoining owner is either premature or misconceived. In those cases, the protocol does not require the developer to progress to the next stage of the process unless it wishes to do so. Similarly, the protocol does not require an adjoining owner to enter into financial negotiations. An adjoining owner whose position is that they do not want to see their rights to light infringed at all can choose to maintain that position, although even in these cases there should still be scope for the parties to use the protocol to narrow the issues between them. As the protocol notes, rights to light is a complex area and in the vast majority of cases parties will wish to take advice from surveyors and/or solicitors to fully understand their positions. The protocol assumes that parties are likely to be professionally represented throughout the process. The protocol also recognises the fact that, in many cases, the developer may have (or is intending to take out) rights to light insurance. While the process outlined by the protocol ought to be broadly compatible with most proactive rights to light insurance policies, the protocol makes clear that developers must ultimately ensure that they do not prejudice their rights under any insurance policy and that this takes precedence over compliance with the protocol. Similarly, the protocol recognises that there may be cases in which an urgent court application is required and there may not be time to complete the steps contemplated by the protocol. In those instances, parties are encouraged to consider the extent to which they can nonetheless comply with all or part of the protocol without prejudicing their legal position. Ultimately, no two disputes are the same and the protocol is intended to be sufficiently flexible for the parties to use it in a way which meets the needs of their particular case. For instance, while the protocol sets out anticipated timescales for completing the various stages, it equally recognises that there may be cases (for example, very large or complex cases) in which those timescales are not appropriate. Nonetheless, it is expected that the timescales set out in the protocol will be appropriate in the majority of cases and should at the very least set a benchmark by which alternative timescales can be agreed in particularly large or complex cases. We have been hugely encouraged by the positive feedback to the protocol so far (not least the decision of RICS to adopt it as part of its updated guidance note) and we very much hope that parties and their advisers will embrace it going forward. If they do, we are confident that it will assist developers and adjoining owners alike in allowing rights to light disputes to be resolved (or, at the very least, narrowed) more swiftly and cost effectively. Paul Tonkin is a partner in the real estate disputes team at Hogan Lovells International LLP. Jonathan Karas KC is a barrister at Falcon Chambers The 2nd edition of Jonathan’s book The Law of Rights of Light will be published later in the spring by Wildy, Simmonds & Hill and will include the full protocol Image © Shaylyn/Unsplash