eb7 director Jonathan Lonergan discusses the housing crisis and how it dictates a need to maximise land for delivering new homes. This can lead to inherent tension between the optimisation of sites and the amenity effect upon neighbours. Jonathan looks at how local authorities and developers can manage these risks.
The growth of local authority owned development companies is making a significant contribution towards the delivery of new homes. A number of local authorities have undertaken ‘small sites’ initiatives to maximise the use of infill and estate fringe land for development alongside larger regeneration projects. The development of such sites in urban location does however result in closer relationships with neighbours which, particularly when coupled with a higher density development leads to a fine balance between opportunity and constraint.
Rights of light and daylight and sunlight effects are primary considerations that define the height and form of a scheme which developers, planners, architect and local authorities must all be critically aware of. Combined with wider ‘neighbourly matters’ such as the requirement of the Party Wall Act or the need to access an oversail land, these site constraints should be addressed early in the feasibility stages of a project.
Limits on the height of footprint of a scheme affect developable area and may mean less new homes. This tension between development and neighbours is magnified where policy and common-sense, dictate that we optimise underutilised urban sites.
This balancing of development and amenity impact is not new. Daylight and sunlight considerations have long been codified in the local and national policy and the legal ‘rights of light’ had been recognised for hundreds of years. These factors are however coming under increasing scrutiny as local authorities place greater emphasis on daylight / sunlight effects where density is increased. The trials of COVID-19 have also increased the importance we place on the quality of our homes which have acted as a family hub, sanctuary and workplace. As such local residents and stakeholder groups are particularly engaged when development is proposed close to existing homes.
Managing risk
Despite the inherent challenges there are a number of ways to manage or avoid issues. These are particularly relevant where local authorities are under scrutiny acting as developer, determining planning authority and landlords to existing tenants.
‘Prevention is better than cure’ and in development terms this means designing a scheme that relates well to its neighbours. Ensuring site constraints are understood at the outset allows architect to produce considered designs that actively avoid issues. Preparing a development ‘envelope’ or ‘jelly mould’ gives us 3-dimensional development profile within which rights of light and daylight and sunlight impacts can be avoided. Such exercises inform, rather than constrain designers and consultants must work closely as a team to incorporate wider site layout considerations such as offset distances, highways and a position of retained trees etc. Modern software provides an ability to conduct daylight testing in real time and architectural workshops that enable rapid, meaningful design progress.
Whilst technical constraints are a key factor, successful development requires support from local residents and the planning authority. Consultation is key in estate fringe and regeneration projects where there is a strong sense of community and engagement amongst residents. The ability to simplify technical constraints facilitates buy-in from neighbours and visual aids are invaluable in this regard. Rendered images help illustrate that potential concern have been considered, and views from neighbouring windows and gardens are useful to show the positions of shadows and that key sight lines are maintained. At eb7 we are fortunate to have an in-house CGI and visualisation team who can render photorealistic views and animation combined with accurate lighting levels to convey the design journey to residents and the LPA.
Maximising opportunities
Even with the relatively smooth passage of scheme through planning, not all issues can be avoided. The grant of a consent may reflect the planning authorities satisfaction that the amenity effects proposal are acceptable. Legal rights of light issues may however remain and expose the scheme to compensation or injunction risk. Negotiations to agree releases of affected rights of light for monetary compensation may be inevitable, but again a visual presentation of the impact can assist by demonstrating a property is not blighted. Careful management of Party Wall matters and other neighbourly engagement can also avoid disputes and the consultants involved at the construction phase should be aware of local sentiment and concerns raised at planning so they are sensitive in dealing with affected parties.
Insurance against residual claims is also a common strategy to address rights of light risk. Whilst traditionally insurance meant ‘keeping quiet’ and not approaching neighbours, actively now engaging with affected parties showed good ‘conduct’ and may reduce litigation risk. The insurance markets have evolved to deliver a range of specialist products to cover complex risks. This includes ‘agreed conduct’ cover where neighbours are to be approached and insurance may also offer the opportunity to ringfence the exposure in respect of claims that are already running.
Of particular relevance to local authority development is the operation of the s.203 Housing and Planning Act 2016. Land may be appropriated under these powers with the effect that the injunction risk related to rights of light are removed (alongside other easements and title defects). Whilst an entitlement to compensation remains, this exposure is generally much lower than a normal ‘arm’s length’ rights of light negotiation. While these are procedural complexities to address, these are usually significantly outweighed by the certainty afforded under s.203 in limiting costs and program risk to keep delivery of new homes on track.
Each site, and indeed each neighbour, is of course unique and the delivery of housing in urban areas requires a bespoke approach to managing potential issues. Whilst this article provides a high-level overview of these challenges, it also highlights the variety of ways in which these may be tackled. Despite progress being made, there remains a long way to go in addressing the housing shortage. A continued pressure for density and height on urban sites mean developers and their advisors must leverage all the tools currently at their disposal to limit impact. Proactivity in developing novel ways to engage with neighbours and manage risk is also essential if we are to maximise the opportunity each sites presents for delivering new homes.
