Posted by: Adam Roake | May 12, 2011

Walkie Talkie Rights to Light

This strange story seems to set a very bad precedent. The City Corporation have agreed to threaten use of their draconian powers under section 237 of the Town and Country Planning Act 1990 to remove from certain third parties their natural right to light. The reason ostensibly is that the development might not proceed thereby frustrating a development that has planning permission and is needed to meet demand for office space in the City.

However even on a cursory reading, it is clear from the report to committee that the third party rights to light are likely only to delay the project, not to prevent it. The developers have already negotiated appropriate settlements with neighbours who they believed had injunctable rights, so clearly it is possible for settlements to be agreed with such neighbours. However, they haven’t yet negotiated with neighbours, who, following the Heaney judgement, might also have similar injunctable rights of light. Paragraph 23 of the report clearly states that timing is what is important to the developer; he had identified a number of tenants, who would need new accommodation in 2014, and in order to meet that requirement, the pre-let agreements would need to be signed no later than third quarter 2011. Paragraph 23 iii states;

Timing of the scheme is therefore key for satisfying the anticipated office demand in the City. Furthermore any institution that provides the finance required for the Development is very unlikely to commit to the Development while there is a risk of injunctions being served to prohibit construction. In order to capture the opportunity for substantial pre-lets and to meet the strategic need to provide prime office floorspace to meet the predicted demand, the programme for 20 Fenchurch Street must achieve practical completion by early 2014.

The first sentence is clearly not true, unless the Walkie Talkie is truly the only new development in London that can meet predicted demand. The real reason behind seeking this action is indicated by the highlighted sentence. What is at risk is not the development per se but rather the lucrative pre-lets that the developer has lined up and now may lose. The City Corporation have agreed to use their draconian powers so that the developer has a stronger position in negotiations with neighbours over the infringement to their rights caused by the building. I’m not sure I can see any valid planning purpose or public interest here. Instead it seems that the City Corporation has arbitrarily intervened on the side of the developer against its neighbours, to the benefit only of the developer.

Can we assume that the City Corporation might take similar action for any substantial development so that any infringement of Rights of light in the City could, through the use of section 237, be rendered merely a matter for compensation? I cannot see that Parliament intended section 237 to be used in that way but equally I cannot see why similar arguments could not be put forward to support use of section 237 pretty much anywhere else.

Or will the newly identified neighbours truly screw up the developers by applying for a judicial review? Clearly it is easier to negotiate compensation when you know you can prevent the development and the compensation is potentially significantly greater. I imagine that the City Corporation have cost the neighbours a lot of money, money that the developers have consequently saved, and there appears to be little, if any public benefit.

It all seems a little bit like what, according to certain reports, happens in China.

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Responses

  1. They obviously had wind of the amendment being proposed to the now almost farcically nameed Localism Bill, that will allow financial gain to become a material planning consideration.
    Might I suggest that ‘going for a Chinese’ takes on a whole new meaning when applied to this government and the planning system!

  2. Thanks for the comment Roger, and congratulations on your re-election. It does seem an obviously “un-planning-like” decision.

    • Thanks Adam. Sorry you will have to put up with me for another 4 years! ;¬)

  3. Adam, I totally agree with what you say here. If this was the only developable site in The City I might agree with the approach taken by the City of London, but to intervene on behalf of one developer, in order to suit their timetable, does make me wonder where this approiach may lead, for having done this for one it will be hard to refuse to do this for all.

    Taking a wider view, although I agree that development has to happen in the City of London, The City is more than its ‘core’, London is more that the City, and there is still plenty of room around the city fringe; Canary Wharf, and even more around The Royal Docks.


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