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Monday, 31 January 2011

Forest Dump – Selling England’s Woodland By The Pound

On 27 January 2011 the Government outlined its plans to sell off England’s public forests and thereby bring about the biggest change in land ownership for more than 80 years.

It is the largest sell-off the Government can authorise without the need for an act of parliament.

A public consultation was started on 27 January and will run until 21 April 2011.

Caroline Spellman is the Environment Secretary lumbered (!) with the task of overseeing this latest Government attempt not to court universal popularity.

England's premier "heritage" woodlands such as the Forest of Dean and the New Forest will be handed free to a new national charity or to existing charitable trusts to manage in the national interest. Communities and environment groups will be invited to buy tens of thousands of hectares of other forest land at the market rate which they will be able to run themselves. In addition, large areas of commercial woodland are planned to be sold on 150-year leases to companies.

The Government’s proposals are set out on the DEFRA website and are contained in a consultation document on the ownership and management of the 18% of England’s woodland currently run by the Forestry Commission (so 82% of England’s total wooded areas will be unaffected). The document lays out different approaches for different types of woodlands.

The Government has already committed to taking 15% of the public forest estate out of state control over the course of this parliament, generating (say DEFRA) “up to” £100million of receipts. The consultation paper invites views on a range of ownership and management options for the remaining 85% of the public forest estate. 

The key proposals in the consultation document are that:

·     Heritage and community forests which provide high public benefits will be protected by inviting new or existing charitable organisations to take on ownership or management.
·     There will be opportunities created for community and civil society groups to buy or lease forests.
·     Commercially valuable forests will be leased to commercial operators. DEFRA say that leasing rather than selling will allow the lease conditions to ensure that the public benefits of these woodlands are preserved while allowing the operators to maximise their commercial potential (although of course that begs the question of what exactly those lease conditions will be).

The proposal to sell off this woodland is hugely controversial and has already received a great deal of press coverage.

There is considerable uncertainty over whether communities might choose to buy and manage land, and also confusion about the legal access to land that the Forestry Commission presently leases rather than owns outright (what are the terms of those leases, can they be assigned or terminated?). There is also confusion over what happens to forests that are not taken up by communities, as well as the uncertainty over the precise lease terms that will apply to commercial operators.

What happens if no one either wants or can afford to buy these woods? The Woodland Trust has already said it does not have the funds to participate and it is unlikely that local authorities will either. However, according to this Guardian report and this report from the BBC it is possible the National Trust might step in to fill the void.

Green groups and trade unions have said the plans would be bad for wildlife and the public. Over a quarter of a million people so far have signed an online petition opposing the sell-off.

The forests of Wales, Scotland and Northern Ireland will not be affected by these plans.

Of course there are two sides to every story and there are those who think the Forestry Commission hasn’t done a particularly brilliant job in managing these forests over the years. The weight of opinion being expressed in the press and online however is opposed, often vehemently, to this policy (for which there does not appear to be any mandate).

There are a great many unanswered questions and we shall have to see how the Government responds to the deep concerns felt by many when it reports back after the consultation has ended. Between now and then there will doubtless be several forests-worth of wood pulped to house the acres of newsprint yet to be expended on this subject. In case you haven’t seen much of the coverage so far or want to read more, here are links to some comment pieces in the Telegraph , Telegraph  (again), Guardian, Guardian (again) and Independent. (The only reason I’m not also linking to similar stories in the Times and the FT is because the Digger won’t give anything away for nothing and the FT don’t like you using their copy.)

So, is this a scorched earth policy of wanton vandalism being visited upon our national realm or a bit of artful pruning that will help cut a swath through The Deficit?

Well, according to the Telegraph,

“at present the Forestry Commission in England costs the Government about £18 million a year, after timber sales are set against costs. After the forests are sold, the commission will continue to regulate, administer grants, carry out research and provide advice, functions that at present cost £18.4 million, without an income to offset them. And the Government's own figures show another £17.7 million will have to be spent supporting the new owners – leading to a bill for the taxpayer of £36.1 million a year, twice the present level.”
If that’s the case then the Government is clearly barking up the wrong tree.

Saturday, 29 January 2011

Land Securities: Walking The Walk, Talking The Talk

This Guardian interview with Francis Salway, Chief Executive of Land Securities, confirms that work has now started on the Walkie-Talkie tower at 20 Fenchurch Street in the City, which I commented on in Let There Be Light – Developers, Skyscrapers & TheTheory Of Everything.

Mr Salway describes it as one of the “next generation of towers” that will enable people to spot the boundaries of the Square Mile from miles outside London. It’s all part of the plan for the City to have a cluster of tall buildings.

He says, “The Walkie-Talkie is not the tallest, but the most attractive visually”.

I doubt the bods developing the Shard would agree with that, but then everyone thinks they have the prettiest skyscraper at home, to paraphrase Arsene Wenger's riposte to Sir Alex Ferguson in football’s Jurassic age.

Thursday, 27 January 2011

DECC Promotes Further Discussion Of CRC Energy Efficiency Scheme

The Department of Energy and Climate Change (DECC) has invited feedback by 11 March 2011 on proposals it has prepared on further changes to the CRC Energy Efficiency Scheme (CRC) following on from the consultation which closed in December 2010.

The Government is actively considering simplifying CRC.

The informal proposals being suggested are not being made as a statement of Government policy but instead are intended to provoke discussion amongst interested parties resulting in ideas and suggestions for changes and improvements to CRC for subsequent consideration by the Government. Whilst DECC has identified priority areas for simplification, it is also inviting views on the scheme generally.

This will be an opportunity for people to influence the simplification and ultimate design of CRC.

Here is a link to the relevant page on the DECC website, which itself has internal links to the various discussion papers presented by DECC. It also tells you where to send responses.

The priority areas identified by DECC following consideration of the feedback received from the consultation are:-

·         Private (business) sector organisational rules of CRC  
·         Review of CRC supply rules
·         Review of CRC qualification criteria
·         Reducing the overlap between schemes (especially between CRC, Climate Change Agreements and the EU Emissions Trading System)
·         Timing and frequency of allowances in CRC from 2012 onwards

Feedback received by DECC has also shown that a number of other aspects of CRC could also be revisited. These include, but are not limited to:-

·         The nature of the reputational incentives of the scheme
·         Definition of transport used in the scheme
·         Treatment of public versus private sector participants
·         Energy threshold for qualification
·         Treatment of heat
·         Landlord/Tenant relationships and responsibilities

Again if you have views about possible further simplification of the scheme in these or other areas, DECC has asked for responses by 11th March 2011.

It is disappointing from a property perspective that the role CRC plays in landlord/tenant relationships and responsibilities has not been regarded by DECC at this stage as a “priority area” and that no discussion paper has been presented by DECC on this subject.

Depending on the response to this request for views, DECC will consider publishing further discussion papers on other aspects of the scheme and hold associated sessions on these topics at future” stakeholder events”.

Here are links to my other posts about CRC.

Wednesday, 26 January 2011

Lease Break Clauses – What Can Possibly Go Wrong?

In my post Lease break clauses – what if you change your mind? I looked at what happens if you are a tenant, you serve a break notice terminating your commercial lease, but later on you change your mind and want to stay.

But let’s say you really want to go.

When you try to make use of a break clause to end your lease, can anything go wrong so that the lease doesn’t end and you have to carry on paying for space you no longer need and no longer want?

In a difficult market landlords will be keen not to let their tenants leave, so getting this wrong can be a disaster. You should always take professional advice to make sure this is handled properly, but here are some important things to look out for.

Do you have the benefit of the break clause?

The break clause must be read carefully before your break notice is served. If you are not the original tenant (because the lease has been assigned to you), then you need to check that the break right isn’t the kind that can only be exercised by the original tenant.

A personal right to end a lease, meaning one that was only given to the original tenant, is lost after the lease has been assigned. If the break right is not personal, then it can be exercised by you as the current tenant.

When can you end the lease?

The break clause might specify a once-only break date, or several different break dates throughout the term, or it might provide for a right to end the lease at any time after a specified date. If there is only one break date, make sure you haven’t missed it.

Have you served the break notice properly?

When drafting and serving the break notice, advisors must take great care to read the terms of the lease very carefully, both the break clause itself and the general provisions in the lease dealing with serving notices, and must comply with them to the letter.

The courts interpret these provisions strictly and a mistake can mean the notice has not been validly served and the right to end the lease has been lost.

If there are no provisions for serving notices in the lease (which is rare these days), then the position is governed by s196 of the Law of Property Act 1925 which provides that a notices can be served personally or by recorded or registered post on the landlord’s last known place of abode or business, provided it is not returned undelivered.

Make sure the notice is served on the right person. Your landlord may have changed and you may need to search the Land Registry to verify ownership. It might not be the same name that appears on rental invoices.

Whether or not you can serve a notice on the landlord’s agents depends on whether the agents have authority to accept notices on the landlord’s behalf. It is safer to serve the notice on both the agents and the landlord itself.

There is no special form of notice prescribed by law, but the lease might include a form of notice that must be used, so again check the lease carefully.

And make sure you serve the notice in the right name - see my later post Lease Break Clauses - Get Your Own Name Right!

Have you served the notice in good time?

The break clause will usually provide for prior written notice to be given to the landlord by a minimum number of months before the break date. This notice period can often be quite long, say 9 months or a year before the break date, but sometimes it may be shorter.  Whatever the period is, time is of the essence for notice periods whether the lease actually says so or not. That means if you are too late in serving the notice, even if only by one day, you will lose the right to end the lease. Notices should therefore be served as far in advance of the minimum notice period as is commercially viable (but not too far in advance, or you might change your mind!).

Do you need to send a copy of the notice to anyone?

In The Hotgroup plc v The Royal Bank of Scotland Plc [18 may 2010] the court ruled on a notice provision in a lease which said that a notice was not validly served unless a copy was also served on the landlord’s agents. This provision was designed to ensure that a notice did not "gather dust" in the landlord's offices, but came to the attention of the person with actual responsibility for the management of the property.

Although the notice was served on time, the copy was served at a later date and was unfortunately out of time. The court held that the break notice was therefore ineffective and the lease was not ended. Therefore you need to check carefully whether the lease says you must send a copy of the notice to someone. If it does, be sure to send the copy at the same time as serving the original notice.

Do any conditions need to be complied with?

Break clauses often provide that certain conditions have to be complied with by the time of the break date, and that if those conditions have not been complied with, the lease will not come to an end. Therefore it is vital you look at what conditions apply (if any). If there are conditions, make sure you comply with them to the letter.

For example you might have to pay a premium to the landlord on the break date. This would normally be specified in the break clause. If so, make sure it is paid to the landlord in good time.

Here are some other conditions often seen in break clauses which you need to look out for.

·         The rent must be paid up to date at the break date

This condition isn’t as straightforward as it looks. For example, service charge might have been reserved as rent, and that won’t necessarily be a fixed amount; or the lease might say "all sums" have to be paid. If so, you need to get from the landlord a confirmed amount of what is due to be paid by the break date.

The clause might only require the “principal” rent to be paid up to date. However, if the rent is paid quarterly in advance then that means a full quarter’s rent must be paid for the last quarter, even if the break date doesn’t coincide with the quarter day. So for example if the break date was 10 October 2011, you would still have to pay a full quarter’s rent on 29 September 2011 and you won’t get back what you have paid for the period 10 October 2011 to 24 December 2011 even though you have gone! This is because there is no common law right to apportion rent.

You might be lucky and the break date will fall on the quarter day; or if not sometimes the lease might oblige the landlord to reimburse you the balance of the quarter’s rent. However, unless the lease actually obliges the landlord to refund to you any rent or other sums paid beyond the break date, you are not automatically entitled to a refund. However, it is still better to make the payment in full and hope the landlord might give you some of it back than to lose your right to end the lease.

·         The lease covenants must be complied with at the break date

It can be very difficult to be certain you have complied with this condition (which is why, as a tenant, you should never agree to it in the first place!). The landlord might say the break clause hasn’t been complied with even if there has only been some minor breach, such as a bit of minor disrepair.

The condition might instead require that there is no “material” breach of covenant at the break date. Your position as tenant is stronger here. A court would try to look at this objectively. A material breach is not a trivial breach; it must affect the landlord’s ability to sell or re-let the property without delay or additional expense. Minor breaches of repairing or decorating obligations that do not affect those dealings are unlikely to amount to material breaches.

Have a survey carried out to determine what work needs doing and do all of it before the break date. You might need to move out before the break date so that all the work can be done. You cannot leave on the break date without doing the work and then offer to pay damages in the way you can with dilapidations on a normal expiry of a lease term.

·         Vacant possession must be given at the break date

This condition often causes problems, as landlords might be able to argue that vacant possession has not been given if you have left anything behind at the property.

Does accidentally leaving an old coffee cup on the floor mean you haven’t given vacant possession? Probably not, but the best thing is simply to clear everything out to avoid any argument. If any employees remain at the premises, or if you carry on using part of them for storage, you are likely to be found not to have given vacant possession.

Give the keys back! Keeping the keys beyond the break date will probably mean you have not given vacant possession. If the keys have been lost, change the locks and give all the new keys to the landlord. If you have installed an alarm, give the code to the landlord so it is not prevented from entering the premises.

Get rid of any trespassers! If any trespassers are present on the property on the break date then you haven’t given vacant possession. Clearly this is a concern if you have actually left the premises some time before the break date. You need to make sure the premises are kept secure for the period leading up to the break date and keep regular checks to make sure no one has broken into them.

If you have any subtenants or someone sharing the premises (such as a concessionaire or franchisee), you have to make sure they all vacate the premises by the break date too. Your break clause will only work if you know you can terminate any subleases or sharing agreements and get rid of the subtenants or sharers by the break date.

Finally, don’t forget to leave!

Even if there is no condition to give vacant possession, don’t forget to leave the premises on the break date. If you outstay your welcome the landlord might choose to invoke its right under s18 of the Distress for Rent Act 1737 and claim double rent for the period in which you remain there as a trespasser. They took a hard line in the eighteenth century!

Breaking up can still be hard to do even if you haven’t changed your mind. The moral this time is if you really want to go, make sure you do everything the lease says you have to do to comply with the notice provisions and the break clause.

Tuesday, 25 January 2011

Localism Bill: Now In Plain English

The Localism Bill was published on 13 December 2010.

Here is a link to the Communities and Local Government website which briefly outlines the purpose of the Bill.

More detailed information on the Bill and its progress is available from this link to the parliament website.

A “Plain English” version was published on 14 January 2011.

The Bill aims to shift power from central government back into the hands of individuals, communities and councils.

This will have an impact on the planning process, although there appears to be a lot of uncertainty as to what that will mean and how it will work.

If I come across any useful commentary on this Bill as it progresses I will try and post it on Digging the Dirt..

Monday, 24 January 2011

Nuclear Power Stations – Consultation Closes

The Secretary of State for Energy & Climate Change, Chris Huhne, has been visiting EDF Energy’s site at Hinkley Point in Somerset as the Government’s consultation on Energy National Policy Statements approaches its end today, the DECC has announced today on its website.

Eight sites were listed as being potentially suitable for the deployment of new nuclear power stations by 2025: Bradwell, Hartlepool, Heysham, Hinkley Point, Oldbury, Sizewell, Sellafield, and Wylfa.

The consultation has attracted more than 1,500 responses from people across the country. Ministers will consider the consultation responses before putting a final list to Parliament for approval. When considering applications to build nuclear power stations on the listed sites regard must be had to the guidance set out in the National Policy Statements.

Further information is available on the DECC website.

Flushed Away – A New Sewer For London

From towers of London to sewers of London, never let it be said that Digging the Dirt doesn’t try to cover both the highs and lows of human endeavour. Far from scraping the bottom of the barrel (instead of the sky) however, the story of London’s sewers, both new and old, provides a rich seam of fascinating facts and controversy (no, really).

Where will this new London sewer be?

On 14 January 2011 Thames Water ended its first major public consultation on the proposal to dig a massive new sewer under London, a “super sewer” (as they’ll be calling it in the bars of Chelsea), from Hammersmith in the west to Beckton in the east.

A plan showing the preferred and shortlisted sewer routes is on Thames Water's special consultation website.

This will involve a truly gigantic programme of public works. When completed, the new drain will be approximately 24 miles long. It will be almost as long and as wide as the Channel Tunnel and the main section will inhabit a subterranean world down some 75 metres beneath the river Thames. Indeed the scale of the huge drain is said by Thames Water to rank with the building of the London Underground, Crossrail and even the Channel Tunnel itself.

The Guardian comment that the project, estimated to cost £3.6bn, will be three times as expensive as Wembley stadium, and could take as many years to construct as the Olympic Games site.

In the spring Thames Water is to publish a comprehensive consultation report, outlining its response to the comments it received during phase one of the public consultation. This will be followed by a further consultation period on revised plans to be produced by Thames Water. This second consultation is due to start in September 2011 and will be more detailed than the phase one consultation. Thames Water has said that phase two of the consultation will feature more site specific information. This will be linked to the Environmental Impact Assessment (EIA) that Thames Water  will need to provide in support of its planning application for the sewer, which is due to be submitted in 2012. Work on gathering technical data for the EIA, already underway at potential sites, will continue for the rest of this year.

The earliest date the sewer is likely to be completed is 2021.

Why does London need this massive new sewer?

At the moment, a stomach churning 39 million tonnes of sewage goes into the Thames every year. Something to consider next time you wander along one of its beaches at low tide. The new sewer will be designed to collect 96% of it. That still leaves 1.59 million tonnes, so I doubt those beaches will be awarded Blue Flag status any time soon, but it still represents a vast improvement.

It will mean we have come along way from the 1800s, when the Thames really was just an open sewer, giving rise to terrible public health problems, including many cholera epidemics. It wasn’t until after the “Great Stink” of 1858 that parliament gave the go ahead for the construction of the intricate Victorian sewage system that serves most of London today. The summer of 1858 was unusually hot, and as the Thames and its tributaries were overflowing with sewage, the resulting smell meant that they had to put up curtains soaked in chloride of lime in the House of Commons to keep it at bay, and they even considered relocating parliament because of the stink and obvious health risk to the honourable members (never mind the rest of London). This led to a massive programme of sewer building in the 1850s and 1860s led by Joseph Balzagette and the creation of hundreds of miles of drains. The planned new sewer is being designed to augment that Victorian drainage sysytem, not replace it.

To create the new sewer, the Guardian reports that Thames Water must drive three huge 25m-wide shafts 60m deep below the Thames, drop in some of the biggest tunnelling equipment in the world and then bore a 7.2m-wide tube that will twist and turn for more than 20 miles. Along the way, 5m tonnes of chalk, gravel and clay will have to come out, and the main tunnel will connect to 22 other new tunnels that need to be built to carry the sewerage from points along the river. Ventilation shafts, maintenance buildings and other works will all be needed.


The plans have already stirred up a great deal of controversy, as reported in various places, including thisislocallondon and the Guardian. Thames Water has been accused of deliberately choosing to set up its construction sites in public parks and gardens rather than on brownfield sites. In Putney and Barnes for example, members of Stop the Shaft (STS), a residents campaign group, urged neighbours to the proposed site to have their say and delivered 10,000 feedback forms to people in the area.

Thames Water says that “This is only the first stage in our consultations and there will be major changes by the time we come back with firm plans in September.”

Clearly there are a lot of local issues to resolve before the plans can go ahead and it will be interesting to see where things stand in the spring following the first consultation.

The Olympic Sewer

These are exciting times in the London drainosphere. Not only will London be getting the super sewer, but it has already been treated to the new Olympic Park Pumping Station in Stratford, which together with a new sewer network will collect and remove waste from the main venues and buildings in the Olympic Park during the games. And if, after the excitement is all over the unthinkable happens and Tottenham move in, it’ll be all ready for them too! [The result of the Spurs v West Ham Olympic Legacy Grudge Match is due to be decided on when the Olympic Park Legacy Company meet on Friday. [UPDATE – well it was but the BBC have now reported that decision has been postponed.] I think I’d rather wallow in raw sewage than dip my toe into that controversy, so ‘nuff said!].

You can even see a photo of the Olympic pumping station and new sewer network (taken at night!) on . One for the album and truly a legacy behind which we can all unite!

How can I find out the location of any public sewers when buying land?

A quick bit of practical information to finish.

It is standard conveyancing practice in England & Wales, when buying property, to carry out a  Drainage & Water search – or Con 29DW, as it is known.  A new version of this search was introduced in January 2010. It provides a great deal of information on drainage and water matters (which I don’t propose to go into here), including whether there are any public sewers located within the boundaries of the property, or within 100 ft of any buildings within the property. If there are, then build –over agreements might need to be negotiated with the relevant water company before any buildings can be constructed over the sewer.

Thursday, 20 January 2011

Ghost Towns – Exiled From Main Street

Just when you thought January couldn’t get more depressing, the FT reported yesterday that data compiled by the Ordnance Survey shows high street shopping in the UK has entered a steep decline.

The FT comment that when the Local Data Company retail vacancy report comes out next month, it is expected to show that boarded up shops now account for more than 15% of space on Britain’s high streets as the high street loses the battle with malls, out of town retail parks and, increasingly, online shopping.

I guess this is nothing I couldn’t have learned from a walk down our local high street, but the facts make for grim reading.  The Ordnance Survey blog states that by comparing the number of retail addresses today with the amount in October 2008 (just after the collapse of Lehman) it shows that estate agencies are down by an average of 9.2%; building societies are down by 28.2% and the number of employment agencies has shrunk by 13.4%.

Small independent shops are not shown up in this data, but they have clearly been hard hit as well.

National chains are also quitting town as Sir Philip Green’s Arcadia has announced plans to shut 300 high street stores; Mothercare is relocating to retail parks; HMV is to close 60 stores and Game is set to close 90 stores.

Ah well, if it all gets too much, after a few stiff drinks (assuming you can find any pubs still in business) you can still be sure to find somewhere to put that bet on the 3-30 at Doncaster (triple A rated or not), as the only good news to emerge from these statistics is that the number of betting shops has gone up by more than 5% in the period surveyed.

Actually, that’s not the only good news as pound shops and pawnbrokers also seem to be on the increase.

So that’s all right then.

Wednesday, 19 January 2011

Let There Be Light – Developers, Skyscrapers, Rights to Light & The Theory of Everything

Walking over the Millennium Bridge in London yesterday, once my eyes had adjusted to the blinding sunlight bouncing off the steel walkway, looking east I was struck by the speed with which the Shard at London Bridge has emerged on to the London skyline.

It seems like only yesterday that they started building it and now, all of a sudden, it’s there, as though some magical hologram has been conjured up on the south bank of the Thames.

When completed in 2012, Sellar Property Group’s  Shard is set to be the tallest building in the EU, although disappointingly for tall buildings anoraks, it will rank only 45th in the world. The Gotham Cities of the Middle and Far East seem to have the monopoly on sky-scraping hubris. At the time of writing the tallest building in the world is Burj Khalifa in (where else?) Dubai, which opened in January 2010 and stands at a jaw dropping height of 828 metres (2,717 feet in old money).

The Shard is still pretty impressive though. The concrete core has already topped out at level 72 (not to be confused with those 1980’s funkmeisters  Level 42, after whom the now lowly Tower 42 was named (no it wasn’t)). Currently standing 245 metres tall (804 ft), when finished the Shard will stand 310 metres tall (1,017 ft) and will have those 72 floors, plus 15 further “radiator” floors in the roof which, according to that online bible for tall building spotters, skyscrapernews, comprise a massive radiator designed to expel the heat generated by the building naturally. No idea how that works but it should raise the ambient temperature of the city by a few degrees, so no more snow days then.

Ironically, the nickname “Shard of Glass” was, according to skycrapernews, originally coined by English Heritage who tried to use it as an insult suggesting it was “stabbing at the heart of historic London” (that’ll be the Elephant & Castle). The name stuck, and it is now being used by the developer (bet EH are thrilled about that).

London, traditionally a low-rise city, has caught tall building fever of late. The Pinnacle (aka Bishopsgate Tower) is also under construction, scheduled again to complete in 2012, and will come in at 288m tall (945 ft). It was originally going to be taller than the Shard by about 1 metre, but apparently the height had to be reduced after concerns raised by the Civil Aviation Authority.

Heron Tower, topped out in July 2010, stands at 230 metres (if you cheat and include its 28 metre mast, or 202 metres (663 ft) if you don’t). There again, if masts are going to be counted, then sadly for the Shard it will still only rank as the second tallest free-standing structure in the UK after Emily Moor transmitting station near Huddersfield (currently the 4th highest in the EU and 25th in the world), which stands at 330.4 metres (1,084 ft).

Then there’s the Richard Rogers designed “Cheesegrater” being developed by British Land and Oxford Properties at 122 Leadenhall Street, which was revived in October 2010, having been shelved during the financial meltdown. Construction is due to start in July 2011. When completed, the Cheesegrater will stand 737 ft (225 metres) tall (that’s a lot of cheese, Gromit). Finally there’s the oddly named “Walkie-Talkie” being built by Land Securities at 20 Fenchurch Street, a 36 storey building to stand 160 metres tall.

This high density building got me thinking about rights to light easements (told you I didn’t get out enough). Of course, the hugely experienced teams of developers and their advisers involved in these landmark projects will have dealt with any light issues that might have arisen.

But, as lateral space in cities becomes increasingly scarce, and when architects and developers strive to design and build ever taller buildings, the rights of neighbouring properties to light can in some instances become a real issue.

This was demonstrated in a much more low rise context last year in the case of HKRUK II (CHC)Limited v Heaney (2010)EWHC 2245 (Ch) when the High Court ordered a developer to remove part of the top two floors of a recently completed development, as they interfered with the right to light enjoyed by a neighbouring building.

What is so interesting about this case is that instead of awarding damages, the court granted a mandatory injunction ordering the developer to remove the offending top two floors and this was even despite the fact that those floors had been let to a tenant by the time of the hearing, and that both parties had been in discussion about the size of the development since before it had began.

The law on rights to light is complex, both scientifically and legally. So much so that a specialist surveyor should always be consulted whenever there is likely to be a light issue. It has also become harder to predict the outcome of any disputes. In Heaney the court was in fact applying principles established as far back as 1895 in Shelfer v City of London Electric Light Company (1895)1 Ch 287, when the Court of Appeal effectively ruled that injunctions should be the norm and that damages should only be awarded in very exceptional circumstances, where the damage is small and it would be oppressive to grant an injunction.

Where the confusion has arisen is that since Shelfer the Courts have appeared to respond inconsistently to rights of light cases, refusing in some instances to grant an injunction where, for example, it would prevent an otherwise ‘worthwhile’ development. The courts have also appeared on occasion to take the view that the enjoyment of natural light is considered more important in a dwelling than in a commercial building. 

In Heaney the court decided it would not be oppressive to grant the injunction, even though the top floors had already been let to a tenant, because HKRK had been fully aware that it was interfering with Mr Heaney’s right to light, and had reduced the price it had paid for the building by £350,000 because of those rights.

So how does your building get a right to light?

A right to light is an easement, permanently benefitting the land that enjoys the right and permanently binding the land over which it is exercised. It is not just a personal right.
It normally takes 20 years for a building to acquire a right to light through its original windows. I won’t bore you with all the law on this. If you are really interested, or have trouble sleeping at night, I would recommend the definitive work, Gale on the Law of Easements. There has also been a lot of useful commentary on the recent cases, such as these recent articles by Osborne Clarke and Manches, to name but two.

Bear in mind also that rights to light, because they are real property rights, exist independently of the planning system. So just because someone’s been granted planning permission, that doesn’t mean they can ignore your rights to light.

The right is to a certain amount of light, not necessarily all the light that was once enjoyed. Mathematical calculations have to be carried out to determine whether or not a development on neighbouring land will cause an infringement. These days there are specialist computer software programmes to do this.

I’ve got the right! What next?

If you are the lucky owner of a building with windows that have received natural daylight for 20 years or more then you are entitled to forbid any construction or other obstruction that would deprive you of that illumination. Your neighbours cannot build anything that would block the light without your permission.

How much light am I entitled to?

The court will tend to consider whether there has been a deprivation of light that renders a building less fit than it was for the purposes of occupation or business. In Heaney the majority of rooms were originally poorly lit, to 25% or less, so any reduction in light was considered to be a serious loss because of the value of the available light, in other words because the light was already scarce what little there was had more value. The most affected areas included what were described as the “star rooms” of the former bank, such as the old board room, so this was not regarded as a small injury, but one which struck at the heart of the former bank building’s character and which undermined the restoration work that had been carried out by its owner.

Heaney, it should be pointed out, is being appealed, so it is not definitive. But it already serves as a warning of how expensive things can get when rights to light issues are not resolved at the outset. The cost of removing the offending part of the building in Heaney is reported to be close to £2 million, and there is the added complication of having to deal with the doubtlessly unimpressed tenant occupying the floors that might soon have to be made to disappear.

As for the Shard, I doubt anyone’s going to be asking the developers to remove the top 70 floors, or even the designer roof top radiators. I hope not anyway, as if I can overcome my lifelong affliction of vertigo, I might venture up to the open air viewing platform, although I think a few tinctures of something strong will be in order first.

As a last resort in rights to light cases, developers could always play the quantum physics card (if they were watching the BBC’s Horizon the other night), and claim the building doesn’t really exist at all because all reality really is just a two dimensional cosmic hologram explainable only in the language of pure maths and replicated ad infinitum in a series of parallel universes so, er what’s the problem? Maybe, after all, that’s why the Shard has appeared so quickly. Can’t see Mr Justice Cocklecarrot buying that one though, can you?!