Developer FT Patten has won a rights to light dispute in the Court of Appeal over land on the corner of Red Cross Street and Strand Street in Liverpool city centre.
Lawyers at DLA Piper in Manchester secured the victory for FT Patten against RJH Ltd, which owns the neighbouring office block, Regian House, on Strand Street, close to Pier Head and the waterfront. DLA said the outcome is considered pro-development and may open up sites previously considered off limits because of potential objections on the basis of rights to light.
The ruling means Wilmslow-based FT Patten is free to start development of the land on Strand Street. The site is currently the subject of a bid to develop a new state of the art Magistrates' Court for Liverpool.
Steven Jennings, head of DLA Piper's North West property litigation team, said: "This case will undoubtedly set a precedent for future disputes."
Rights to light are protected in England and Wales under common law and by the Prescription Act 1832. They can be acquired by any building that has received unobstructed daylight for 20 years or more, although there are exceptions.
Jennings added: "Rights to light disputes commonly lead to developers having to pay out substantial amounts of compensation, and can prevent schemes from going ahead altogether.
"This ruling will not only enable potentially blighted land to be developed, but has shown that, although the development of a site may appear to be obstructed by a right to light, an investigation of the title deeds could well prove otherwise."
RJH claimed that FT Patten could not develop its land because Regian House had enjoyed over 20 years of unobstructed light.
However, DLA Piper lawyers successfully argued that a clause in a lease of the adjoining land created a 'consent or agreement', under the Prescription Act 1832, which prevented it from acquiring the right to light under the 20 year rule.
The clause was found in a 99-year lease granted in 1980 by Liverpool City Council – which at that time owned both FT Patten's land and the adjoining land. It reserved to the council the 'full and free right' to build at any time on the land now owned by FT Patten.
The clause is standard in many leases – especially leases granted by public sector organisations – and therefore the case could enable developments to get off the ground elsewhere.
The case is the first on this specific issue to reach the Court of Appeal for more than 100 years.