With the rise of iconic building design, problems caused by excess light – as well as light reduction – are becoming more and more frequent
In an English summer, too much light is a problem rarely encountered. Developers, landlords and tenants are typically more concerned with protecting their existing rights to light and ensuring that their land is not burdened by the rights of neighbouring properties.
Modern architectural designs may mean that more consideration should be given to this issue, and others such as wind damage. Twenty Fenchurch Street, known as the Walkie Talkie for its distinctive shape, drew headlines as it focused late summer sunlight into the next street, damaging vehicles and shops hit by the beams.
Bridgewater Place in Leeds lived up to its lethal nickname (the Dalek) in 2011, when a man was crushed to death under a lorry that had been overturned by high winds, which the shape of the building exacerbates and funnels through nearby streets.
Twenty-five ‘incidents’ relating to Bridgewater Place have been reported since completion in 2007, and the coroner’s inquest into the death was adjourned as it was considered that the evidence showed that there might be a case of corporate manslaughter to answer.
Pictured left: 20 Fenchurch Street
It was suggested that the Walkie Talkie issue may have been exacerbated by cost-reducing design changes that removed the sun louvres or fins on the south face, which were intended to prevent the problem. Architect Rafael Viñoly’s Vdara hotel in Las Vegas, completed in 2009, was dubbed the ‘death ray’ as its similarly parabolic structure focuses rays onto the pool terrace, melting sun loungers and singeing guests’ hair.
Viñoly has publicly acknowledged that he was aware that both buildings would have this issue, although he has also commented that lack of appropriate modelling software meant that he could not be sure of the extent of it.
The Shard has also caused problems, with train drivers approaching London Bridge station being affected by its sun reflection, prompting a warning from Southeastern Trains for drivers to ‘slow down when visibility is poor and to remain vigilant and prepared at all times’.
Pictured left: The Shard
With the trend for iconic building design continuing, developers and owners would be well advised to consider the potential for claims to be made against them when approving plans. An action may lie in nuisance, with potential fire hazard, property damage, and loss of trade due to all this being merely some of the possible risks. In extreme cases, and where recklessness could be shown, claims in criminal damage or arson might even be brought.
Nuisance and damages
Private nuisance is caused by a person doing something on their own land, which they are lawfully entitled to do, but which becomes a nuisance due to the consequences caused to neighbouring land. The damage must be reasonably foreseeable, and a claimant can seek damages in compensation and/or an injunction to prevent the nuisance.
Nuisance claims are appropriate for property damage or interference with property rights, rather than personal injury. Examples from the Walkie Talkie included damage to cars parked in affected bays, and the barber shop whose smoking doormat apparently deterred customers from the business. It is understood that the developers have paid compensation to some of those affected.
More common than claims caused by excess light, however, are complaints arising from a reduction in it, often caused by neighbouring developments obstructing light. The decision in HKRUK II (CHC) Ltd v Heaney dismayed developers, who had previously considered that the courts would refuse an injunction if there were a long delay in bringing proceedings.
The injunction in that case would have required the developer to partially demolish two new floors of the building, reducing available floorspace, and adding a huge burden in both time and money to the development.
The Law Commission is working on a final report and draft bill on changes to the rights to light regime, to reduce unnecessary constraints and developer uncertainty. The proposals aim to clarify when damages, rather than an injunction, would be awarded for breach of the rights, and to introduce a statutory notice procedure to increase certainty as to whether an injunction will be claimed by an affected party.
It also proposes to remove the ability to acquire new rights to light by prescription, which is a common method of acquisition.
Although recently there have been a number of welcome changes to planning and property laws as the government focuses on the construction industry to stimulate the economy and push into growth, landowners and developers must continue to consider private rights and to ensure that their landmark buildings do not make headlines for being a nuisance.
Alexis Ash, Trainee Solicitor, and Jon Mowbray, Partner, Real Estate Dispute Resolution, IBB Solicitors