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Right to light in planning decisions

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18/07/2016


In a case before the Court of Appeal, the grant of planning permission for a three-storey building in Stepney has been quashed after it was found that the new mixed-use commercial and residential building would almost entirely deprive an adjacent public house of daylight and sunlight.  The quashing of the permission and outcome in Pauline Forster v SSCLG, Tower Hamlets London Borough Council and Swan Housing Association [2016] EWCA Civ 609 reinforces that loss of light is an important consideration for planning decision-makers.  It seems this is even the case where circumstances make a location or objector abnormally sensitive.

Background

In October 2014, permission was granted by a Planning Inspector (the Inspector) (on appeal from an earlier refusal by Tower Hamlets London Borough Council) for demolition of a single-storey building – formerly Stepney’s Nightclub – and its replacement with a three-storey building with commercial uses on the ground floor and six flats above.  Shortly after, a claim was lodged under s288 of the Town and Country Planning Act 1990 by Pauline Forster (the Appellant).  In seeking to quash the planning permission, the Appellant acted in her role as the freeholder owner and residential occupier of The George Tavern, a listed public house adjacent to Stepney’s Nightclub.

In her initial objections to the local planning authority, the Appellant had stated that The George’s role as a live music venue was absolutely crucial to its ongoing viability. Live music nights, with the premises opening until 3 am on Friday and Saturday evenings for these, accounted for 82% of The George’s revenue.  Reduced trading hours and the loss of a live music licence that could arise due to a new residential development nearby, would inevitably result in closure.  Ms Forster stated: “The local community would lose yet another local pub, live music and performance venue”.  In addition, the Appellant explained that another crucial aspect of the business was the letting of rooms above The George (complete with historical features) as locations for photography and film shoots. Ms Forster noted: “The fact that The George has 360 degrees natural light is also crucial to secure bookings”.  It was argued that light would be lost from the east elevation if the proposed development went ahead, seriously jeopardising this aspect of The George’s business.

In response to Ms Forster’s objections, the Inspector had found that noise insulation in the new building would be sufficient. A planning condition was to be imposed to ensure this – so the local authority had to be satisfied suitable sound installation was installed before the new building could be occupied.  Regarding the ‘light issue’, it was acknowledged that the developer’s expert had accepted the proposal would almost completely extinguish morning sunlight to the pub’s eastern side.  However, the Inspector appeared not to have considered the issue in any further detail.

The appeal

In taking the matter to the High Court and then the Court of Appeal, the Appellant argued:

  1. The Inspector had ultimately failed to take into account, as a material consideration, the harm a development would do to The George Tavern’s viability.
  2. More specifically, in assessing the risk to the business at The George that could arise from new residents complaining about noise-levels, the Inspector had not considered that residents would open their windows. So insulation measures would be insufficient to prevent the complaints.
  3. The Inspector had not considered the loss of natural light to the pub’s eastern elevation. This should have been a material consideration in the planning balance.

Decision

Lord Justice Laws found as follows, with Lord Justice McFarlane and Lord Justice Clarke in agreement:

  • The impact of a prospective planning permission on a neighbouring business’ viability could amount to a material planning consideration.
  • However, in this instance, there was no firm case based on appropriate evidence to show that the proposed development would have the adverse financial and commercial impacts claimed – due to the ‘noise issue’.
  • Inspector’s decisions are to be read with a certain degree of latitude (Bloor Homes East Midlands Ltd [2014] EWHC 754 (Admin)). A decision letter is written for parties who are already aware of what the issues, evidence and arguments are, so the Inspector does not need to go through every minute detail.
  • However, here it was clear that the Inspector had not dealt with the Appellant’s point regarding daylight and sunlight being lost – even though he was bound to do so. As a result, the appeal was allowed only on the ‘light issue’ and the planning permission was quashed.

Key Points and Comment

The case reinforces that any planning appeal decision by an Inspector or the Secretary of State is to be viewed flexibly. As was stated in the formative case of Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26, an Inspector will not be expected to “rehearse every argument relating to each matter in every paragraph”.  A decision letter is to be approached and viewed with a certain amount of freedom.  However, if a specific and distinct point has been raised during the application process and subsequent submissions, this should be dealt with.  So if an issue is “sufficiently flagged” (as LJ Laws termed it), the Inspector or Secretary of State should “deal with it in terms”.

In addition, the case adds an interesting perspective to the status of rights to light from a legal perspective. In basic land law terms, a right to light is a type of easement – that is, a right enjoyed over land belonging to someone else (the servient land) that benefits other land (the dominant land).  The right is one to enjoy a sufficient amount of natural light passing over the servient land, that then enters through defined apertures in a building, to allow the room / space within to be used for ordinary purposes (Colls v Home & Colonial Stores Ltd [1904] AC 179).  Apertures can include windows (with or without glass), glass roofs and skylights.  The result of this is that rooms used for different purposes will be entitled to receive different levels of light, with no one measure of ‘sufficient light’ applying in all cases.  For instance, a greenhouse could be seen as ‘entitled’ to more light than a storage area (Allen v Greenwood [1980] Ch119).  For any legal action to be successful though, it is usually necessary to show the loss of light amounts to a nuisance, rather than that there has just been a net reduction in available light (Higgins v Betts [1905] 2 Ch 210).

It has long been accepted that there are limitations on any right to light.  For example, the right is for sufficient natural illumination and there is no legal right to direct sunlight / sun’s rays.  Similarly, rights of light are not an entitlement to receive the same amount of light to that pre-obstruction on an ongoing basis.  Even if light levels are reduced, there may still be sufficient remaining for the room or building in question to be used in an ordinary and normal way.  However, the recent decision suggests that (at least from a planning perspective) interference with light arising from a new development is a material consideration for decision-makers – regardless of whether daylight or sunlight is involved.  In addition, the particular facts and circumstances are to be taken into account.  This is even the case if there is what could be regarded as abnormal or unusual use of a space, so as to make the objector / affected location particularly sensitive.

Current national policy and guidance largely focuses on considering ‘light issues’ from a planning perspective in terms of the potential for new developments to cause light pollution. Local authorities and decision-makers are encouraged to proactively assess whether a development proposal may have light pollution implications.  Further, conditions may be sought to mitigate any harm arising as a result.  However, the case here looks at light and planning from a different perspective.  It raises the question, will developers have to ensure they ‘see the light’ in future in more ways than one?

For further information or advice on the impact of this decision and other recent legislative developments in this area, contact the Planning & Environment team at Walker Morris.

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