In this latest edition, we invite leading rights of light surveyor, Stephen Friel, Chief Commercial Officer and Board Director of GIA Surveyors, to provide his insight on the role and the intersection between surveying and the law.
Can you explain a bit about your role?
My academic background is in town planning and urban design. I studied at Queens University, Belfast and graduated in 2009. As you can imagine, it wasn't the best time to come out of university and find a job, so I decided to move to England and found a position as a 'planner' for a central London property developer.
In 2011, I was introduced to GIA and was asked if I would consider becoming a 'rights of light' Surveyor. At the time, I had no idea such a career existed, least not what might be involved within the role. As there are no 'rights of light schools' per se, skillsets are drawn from transferable skills and on the job training. At the time, I recall being fascinated by the hybrid surveying and legal element attached to the role and remember pouring over the contentious judgment in the HKRUK II (CHC) Ltd v Marcus Alexander Heaney [2010], which (at the time) took the profession by storm.
In its simplest form, my role is to advise property developers on the rights of light implications of their proposed development, and (where applicable), to provide bespoke mitigation strategies to remedy the potential injuries. As this area of surveying is very niche, I have been fortunate enough to be involved on numerous landmark schemes that have helped shape the London skyline. Whilst I have an unhealthy interest in rights of light case law and emerging daylighting methodologies, my passion lies in commercial 'problem solving' within the subject matter. There is no greater feeling than seeing a contentious scheme that you have been working on for several years being implemented and knowing that however small, you played a role in shaping its design/building form.
What does your average day look like – can you describe the variety of matters you might have to deal with?
It is fair to say that no two days are the same. The daylight department at GIA is split into four large sub-teams, where at any one time, I may be providing strategic oversight on a dozen plus major projects. A typical day usually involves back-to-back meetings, including but not limited to; design team meetings, pre-apps with local authorities, public consultations and planning committees. From a rights to light perspective, I participate in bespoke mitigation strategies, RoL insurance meetings, active RoL negotiations and from time-to-time mediations.
When all that is complete, I then usually have to deal with the avalanche of emails that's inevitably waiting for me on the commute home!
What are the main skills needed to become a successful rights of light surveyor?
Rights of light surveyors are typically involved on projects in urban environments where it's likely that the proposed development will reduce the daylighting amenity to surrounding properties. Taking the example of a tall tower in the City of London, it would not be uncommon for there to be up to 100 impacted neighbours. One of the main skills of the rights of light surveyor is to review heavy, complex data and provide consultancy to the design team on where, if any, amendments to the scheme should be carried out.
In dealing with such proposals, clients usually pose two main questions:
- Is the risk 'injunctable'; and
- What is the compensation figure that I need to place within my development appraisal to deal with the RoL risk?
Surveyors therefore need to be able to explain the subject matter in a digestible manner and ensure the client is both appraised of the risks at hand and on-board with the strategy presented. Successful rights to light surveyors are articulate and confident in providing such advice, whilst recognising there is a fine line between offering surveying advice and legal opinion.
What's the most interesting project you have been involved in?
Very seldom do we see a rights of light case find its way to the High Court, so a recent highlight has to be the case of Sirosa Properties Establishment (Sirosa) v The Prudential Assurance Company Limited (PACL), [2022]. GIA acted on behalf of the developer (Prudential) who were proposing a new development on the corner of Wells Street/Oxford Street. Sirosa (the adjoining owner) filed for an injunction against the proposed development on the grounds of rights to light.
The case had it all, the threat that a site on London's main shopping artery might remain vacant in a post-pandemic world, the recurring argument of natural light versus artificial lighting in a dense urban environment, what constitutes a nuisance, and last but not least, the validity and merit of the Waldram methodology in the 21st Century.
As often occurs in such circumstances, the case was settled by the two parties after the first day of court. A reasonable outcome for those involved, however frustrating for rights of light surveyors, as we came close to getting some answers on burning questions that have been subject to various counsel opinion over the years.
How have you worked with Mishcon de Reya over the years?
I have worked with Mishcon de Reya's Real Estate department many times over the years on contentious rights of light projects. There are plenty of law firms that claim to be specialists in this field, however very few have the experience and expertise to provide reasoned advice in consideration of the clients' wider commercial objectives. I have found Mishcon de Reya's advice to be easily understood and solution driven.
What advice would you give somebody starting out in the industry today?
There are two things that I often relay to graduates as they start their careers at GIA. The first is, 'give it time'. This is in reference to the fact that the whole subject matter of rights of light is likely to be alien to them when starting off. Getting your head around the surveying intricacies takes time and knowing how and when to adopt the evolving case law principles can only occur with experience and via guidance from more experienced surveyors.
The second piece of advice is that 'relationships are key.' If the primary role of rights of light surveyor is to de-risk a development scheme, the most common way to do so is to proactively engage in negotiations with the adjoining owners' appointed rights to light surveyor. Whilst each negotiation will be conducted on the merits of the arguments at hand, there is little doubt that negotiations have a better outcome if there is a good relationship between the existing surveyors. This ties back to the first piece of advice, in that such rapport building takes time.