Central London’s landscape is changing at a lightning pace, with Cheesegraters, Shards, Walkie Talkies towering over the Gherkins and Tower 42s that used to dominate the skyline. Development projects of this scale can encounter rather quirky legal and planning hurdles, the most entertaining of which are set out below.
Battersea Power Station’s Peregrine Falcons
Bird lovers (especially lovers of the Peregrine Falcon, and other species listed in Schedule 1 of the Act) will be pleased to know that under the Wildlife and Countryside Act 1981, it is a criminal offence intentionally or recklessly to kill injure or take a peregrine. Nests and eggs are also protected, and it is an offence to take, damage or destroy the nest of a wild bird when it is in use or being built or to take or destroy the eggs.
The relocation of two of the original London dwelling peregrines was key to the progression of the massive Battersea Power Station regeneration project which is still ongoing. Their original nesting site was at the base of one of the landmark chimneys, which was earmarked for replacement to comply with the strict planning conditions. A new tower was constructed, topped with a nest box to attract the birds away from the chimney. The lure of the new pad was a success and the falcons jumped ship and have been happily been breeding there ever since. A tweet of relief from the Battersea Power Station Development Company as it avoided any criminal liability under the 1981 Act.
A right to privacy in your own home?
From birds to binoculars and the question of whether residents have a right to the privacy of their own homes. In the right circumstances, said the High Court following a claim by a group of owner/occupiers of the swanky, and glassy, apartment block Neo Riverside against the Tate Gallery. The Tate created a viewing gallery, ostensibly to provide a 360 degree view over London – however within that vista was the wall to ceiling glazed living accommodation of (at least) 5 disgruntled property owners (DPOs). A claim was issued by the 5 DPOs in privacy citing s6 of the Human Rights Act 1998, and Article 8 of the European Convention on Human Rights. However, the Tate was not considered to be a public body, even of a ‘hybrid nature’ so this claim failed at the first hurdle. There is no general right to privacy in English law, only against public bodies.
The DPOs’ second bite at the cherry was to construct a claim for nuisance. Private nuisances require the claimant to have an interest in land, so this automatically excludes children from being the ‘victims’ of a nuisance. In this case it was children being overlooked by thousands of gallery-goers that was a major concern to some of the DPOs. The DPOs claimed under the “nuisance by interference with a neighbour’s quiet enjoyment of his land” principle – the utility of the DPOs’ properties had been interfered with by the frequent invasion of privacy. The judge pointed out that the law of nuisance could be used to protect privacy rights from overlooking in an appropriate case where the Human Rights Act does not apply. Not all overlooking becomes a nuisance – it depends whether there is a legitimate expectation of privacy, taking into account the location of the property and whether the owner’s use of land is unreasonable.
In considering whether the DPOs had a legitimate claim, it was noted that they chose to buy the flats, submitted themselves to a sensitivity to privacy which is greater than would be the case with a less-transparent design. Other architectural designs would have reduced the invasion of privacy to levels which should be tolerated. The message was clear – any privacy concerns were self-induced, and the DPOs could have taken steps to reduce the nuisance of the peeping-Tategoers.
Still on the topic of views, the London View Management Framework’s purpose is to designate, protect and manage 27 views of London and some of its major landmarks. The Framework is supplementary planning guidance to the London Plan and should be taken into account when making a planning application for a new development. The views are classified in 4 ways:
- Panoramas across substantial parts of London (“London Panoramas”)
- Views of landmarks framed by objects in the landscape (“Linear Views”)
- Broad prospects along the River Thames (“River Prospects”)
- Views of the urban townscape (“Townscape Views”)
A new development should not harm, and, where possible, should make a positive contribution to the characteristics and composition of the strategic views and their landmark elements. Earlier this year, a planning application for a 1000ft high tower on Bury Street in the City (known as the Tulip), was found by the Greater London Authority to fall foul of the London Plan as it would have harmed the protected view of sites including the Tower of London, by “challeng[ing] the dominance of the Tower as a key feature of the view,” and make the Tulip “a new focal point and landmark.”
Rights to light
With the increase in genuinely tall buildings, what about the poor residents living (or working) in the shadows? There is a legal right to light, but only in very specific circumstances. The right attaches to apertures (mostly windows, but also glass roofs and skylights), and where a new building is being developed, the developer will need to assess whether any of the adjacent buildings has “enjoyed” light through any of its apertures for a period of at least 20 years which might be negatively affected by the new building. If those on the dark side of the development have acquired a right to light by virtue of the Prescription Act 1832, then they have options. They can either agree to release the right in exchange for compensation, the figure to be negotiated with the developer. Or they can issue proceedings for an injunction, requiring the development to be halted or to be scaled back to minimise the reduction of light. Even if the right is deemed to have been infringed, a court may award damages in lieu of an injunction. This may depend upon how far the development has progressed at the point proceedings are issued, and the damages are assessed at the assumed value of the loss of a bargaining opportunity.