Why “just a bit more” can cost a lot more: Building outside a Deed of Release or LON Profile

In the world of development, pushing boundaries is part of progress, but at what point does this bold strategy expose a scheme to serious legal and financial risk?

That was the focus of a recent CPD session held at DPR: exploring what happens when a development exceeds the profile set by a Deed of Release or Light Obstruction Notice (LON) profile and, more crucially, how to manage the risk.

For anyone involved in rights of light negotiations or development strategy, understanding this nuanced topic is essential.

What are Deeds of Release and Light Obstruction Notices and why do they matter?

At the core of many rights of light strategies are Deeds of Release and Light Obstruction Notices (LONs):

• A Deed of Release is a legal agreement that waives an affected building’s right to light over a neighbouring site, often in relation to a defined massing profile (with or without a tolerance), or sometimes as a full release of rights.
• A LON is a notice that is registered to prevent neighbouring properties from acquiring rights of light by prescription. They can also be tied to a defined profile, however often they are based on a “screen of unlimited height”.

Both mechanisms are powerful tools used to manage risk. However, what happens when a new scheme or the extension to an existing building exceeds the agreed profile?

Establishing a breach

A development is considered to breach a Deed of Release or LON profile if:

• It exceeds the agreed profile (and specified tolerance, if applicable).
• It extends onto land not protected by an existing Deed of Release or LON.

This breach can expose the development to rights of light claims where further risk mitigation measures need to be implemented.

Why a legal review should always come first

Before diving into technical assessments, it’s vital to seek legal advice. Some key questions should include:

• Is the Deed of Release restrictive (limiting development to the agreed profile) or permissive (allowing development up to the agreed profile)?
• Does the Deed of Release or LON include a tolerance, and if so, can it be factored into assessing the extent of a breach?
• Was the Deed of Release or LON tied to a specific profile, a full release, or a screen of unlimited height?

Technically assessing the extent of a breach

When assessing the extent of a potential breach to a Deed of Release or Light Obstruction Notice, there are three main scenarios to consider:

1. Existing vs. Deed/LON Profile – Quantifies the light loss based on what’s already permitted by a deed or LON.
2. Existing vs. Proposed – Demonstrates what the light loss would be, without relying on the protection offered by a Deed of Release or LON.
3. Deed/LON Profile vs. Proposed – Establishes the extent of any light loss beyond what’s allowed by the Deed of Release or LON.

The decision on which assessments to undertake should be based on a joint discussion between the client, solicitor and surveyor. Where possible, all relevant assessments should be carried out to present a comprehensive picture of the full risk profile, as opposed to just  the best-case scenario.

What are the main takeaway points?

1. Review the legal position. Is it a Deed of Release or a LON? What’s the nature of the release?
2. Confirm tolerances. Can they be applied in any assessments undertaken?
3. Clarify whether the Deed of Release is restrictive or permissive.
4. Agree on all assessment scenarios to present a balanced view of risk.
5. Consider mitigation strategies early, which could include negotiating further Deeds of Release or registered addition LONs, or rights of light insurance.

Final Thought

When it comes to rights of light, an inch can cost a mile. Building just outside a Deed of Release or LON profile can seem harmless on paper, but the financial and legal implications can be major.

Whether you’re a developer, surveyor or solicitor, the key is coordination and collaboration. Legal, technical, and strategic thinking must work hand-in-hand.

If you’re dealing with a site where rights of light issues are particularly complex, especially where proposals may breach existing Deeds of Release or Light Obstruction Notices, we’d be happy to discuss how our expertise could help navigate the risks and identify a practical way forward.