Understanding rights of light for the APC

Over time, the number of surveyors practising in the field of rights of light who are not chartered has grown to exceed those who are. RICS has recognised this, and in 2019 introduced a specialist sub-pathway to chartered membership under the Land and resources pathway. Additional information for candidates working in rights of light is at the end of the Land and resources pathway document.

This pathway can be difficult to navigate because it relies on adapting existing technical competencies from the standard lists. It is a hybrid sub-sector that crosses over geospatial, planning and development, building surveying and valuation. However, these include areas of knowledge well outside those that a competent rights of light surveyor would ever need.

In addition these competencies do not expressly cover some things that are relevant; for instance, in the Measurement competency, there is no mention of how to measure the light injury using a Waldram diagram or the vertical sky component (VSC) using a modified Waldram diagram. This is used to analyse the impact on daylight for planning purposes. These two techniques appear similar to non-practitioners but are very different.

In the former, the sky value is being measured on the working plane level to ascertain where in a room the minimum required illuminance is achieved and how the contour line that is created by these measurements would move when a development obstructs part of the light.

In the latter, the measurement is of the sky visibility on the face of a window and how that might be reduced by an obstructing development and whether such a reduction would be noticeable to occupants.

In addition, while many younger surveyors can operate specialist software such as AutoCAD this is not explicitly tested in the APC. Nor is knowledge of such things as the effect of small changes in the metadata used for analyses. For instance, working plane height, glazing types, internal reflectance can all affect results in daylight analysis for planning. But non-practitioners would not know to ask about these, let alone know what effect those changes might have.

This aside, the skilled surveyor should be able to view developments and their surroundings and review drawings to understand potential issues that might arise. They often need to advise their client on the scale of development, and how this may affect neighbours.

Surveyors may use their knowledge to suggest changes where possible, but ultimately, they will advise on risks both in legal and planning terms, tailoring risk management strategies to their client.

This means they need to be able to handle sometimes complex negotiations with neighbours or their representatives in rights of light cases, or even to prepare and present expert evidence in court.

In the planning sector, detailed knowledge of the appropriate guidance can help identify alternative assessment methods and prepare a balanced report that helps a planning officer give a positive recommendation. Here too expert evidence may be required, for example at planning appeal.

Remember that RICS membership may not be easy to obtain but does have benefits – some tangible and others not. However, one specific example worth knowing about is that they enjoy direct access to a King's Counsel, without the need to go through a solicitor. This speeds up the process where legal advice is required at that level.

• Access and rights over land: in their summary, candidates should demonstrate a basic awareness of the difference between positive and negative easements as they relate to light, as well as restrictive covenants and deeds of release. An example of a positive easement would be where one landowner has the right to cross the land of another to gain access to their property whereas a negative easement, such as a right to light, works to prevent a landowner from doing something that affects their neighbour. Knowledge of section 62 of the 1925 Law of Property Act in respect of tenants' rights would be relevant, as well as ways in which an easement can be prevented from arising or how it may be lost. At level 3 the candidate should make some statement as to why a right to light does or does not exist on a project.
• Client care: as well as being a mandatory competency, this can also be a technical competency up to level 3. The candidate should demonstrate their ability to communicate technical matters to the client, such as updating the brief according to changing circumstances and ensuring that money is not wasted.
• Consultancy services: these could be based on the RICS' scope of services document for neighbourly matters which includes rights of light matters, but candidates should make particular reference to a project dealing with rights of light – a common law easement protected by law – and daylight and sunlight – a planning matter covered by guidance – akin to the project selected for their case study.
• Landlord and tenant: again, a candidate will usually only take this competency to level 2, discussing basic landlord and tenant law in connection with rights of light. This should, for example, cover what terms are implied by statute or case law, what the duties of a landlord are in respect of quiet enjoyment, and where they might find relevant clauses before seeking legal advice. Rights of light surveyors will most often need to consider whether a tenant may have such a right, and if so what level of compensation they might be entitled to receive, as well as – by implication – what might need to be offered in terms of a negotiated settlement. Cases such as Metropolitan Housing Trust Ltd v RMC FH Co. Ltd [2017] EWHC 2609 (Ch) illustrate the complexity of such considerations.
• Legal/regulatory compliance: the candidate should refer to such legislation as the Prescription Act 1832 and the Rights of Light Act 1959, as well as relevant case law, BR 209, local planning guidance and other relevant areas of law such as section 203 of the Housing and Planning Act 2016 and section 62 of the Law of Property Act 1925 in relation to any advice they have given.
• Measurement: while the candidate will have experience of measured surveys and the like they will usually have the benefit of surveys undertaken by outside specialists using such things as LIDAR and Point Cloud. However, the measurement processes with which the candidates will be involved are those established by law and by the guidance in BR 209. In other words, the candidate will be expected to understand how, in rights of light cases, the measurement of the 0.2% sky value is used to determine injury, the valuation of that injury and the cutback remedy to avoid injury or to value a profit share compensation figure. When assessing daylight and sunlight for planning , they will be measuring impact on existing properties using the VSC and No Sky Contours and, for any proposed dwellings they will be assessing such things as median illuminance and median daylight factors. They will also be assessing sunlight and impact on sunlight. At level 3 the candidate will be explaining to a client how a development might be modified dimensionally to reduce or avoid issues. They might also explain alternative assessments under BR 209 in relation to urban developments and based on previous planning approvals.
• Planning and development: although the candidate would usually only take this to level 2, they are still expected to demonstrate knowledge of relevant planning guidance dealing with daylight and sunlight, consultation with the local planning authority (LPA), and dealing with planning appeals and evidence for inspectors or the secretary of state.
• Risk management: this is the fundamental skill of the rights of light surveyor's service. Client developers want a report that demonstrates their proposed development complies with BR 209 or explains where compliance has not been possible in a way that enables the LPA still to grant approval. In respect of rights of light, the client will require a discussion of the options that fit their risk profile, along with a risk management strategy and recommendations. Level 3 advice will explain why a specific strategy was adopted on the project.
• Sustainability: this competency also tends to be taken only to level two but is most relevant to the interpretation of BR 209 and environmental impact assessments. An awareness of the inherent conflict between adequate daylight and solar glare as well as the efficiency of solar photovoltaic installations should be demonstrated, as well as the ability to advise on building orientation to maximise the use of daylight and sunlight and thus reduce the need for artificial lighting.

These competencies are the closest fit to those exercised by a specialist rights of light surveyor. Such surveyors ought realistically to have a level 1 knowledge of the general subject matter and a level 3 knowledge of those aspects that are most relevant.

As an example, when it comes the Access and rights over land competency, the rights of light surveyor will deal with the easement of light and should also understand deeds of release and covenants. They may also have encountered access rights under the Party Wall etc. Act 1996 that could allow the assessment of layout in a potentially affected building without disclosing that a potential right to light issue was being considered, but this is uncommon.

A rights of light surveyor is under a duty to the client and any potential insurer not to disclose to any other party that a right to light issue might exist. However, they do need to use best data in their analysis. So, where access can be gained for some other purpose, they can take gain extra information such as room depths.

They may also consider licences such as where an owner can allow a window to be built at the boundary line and use the light from over their neighbour's land until such time as the neighbour wishes to redevelop. The act of permission through the licence removes the application of the Prescription Act. However, the surveyor would not be involved in advising in respect of wayleaves, which have no relevance to rights of light.

For this reason, when completing their summary of experience, the candidate needs to interpret the competencies, first at level 1 to demonstrate their understanding of the scope, adding those areas that are not currently mentioned in RICS Requirements and Competency guide but are relevant to rights of light surveyors. At level 2 they must explain how they have dealt with those relevant areas in actual projects, including what advice they may have given to a client. At level 3, meanwhile, they must explain why advice is given in any specific circumstances related to a project.

In a sense this is the easier element of their submission; the case study presents a different challenge.

However, when dealing with rights of light advice there is a considerable degree of confidentiality. The surveyor has an ethical duty to their client – even when a project is completed and constructed without objection – not to reveal anything that suggests that a right to light may have been compromised.

This is especially true where the developer has taken out insurance against any action for loss of light. All such cover requires that nothing should be said without the insurer's approval. Any breach of this requirement would invalidate the insurance.

In a rights of light case an affected party, known as the dominant owner who has the right, could – even when the obstruction of light has been in place for more than a year – make a case under the doctrine of lost modern grant for loss of light.

If they learned of their right through a discussion at a candidate's APC final assessment or preliminary assessment then there can be no doubt that their client would want to recover any losses not covered by invalidated insurance. Some suggest that gaining the client's agreement to use their project for the case study would be sufficient to eliminate this risk, but that is not the case.

In essence, the only ways in which a candidate can use a right to light case for their APC – and remember that the case study must refer to a real project from the preceding two years that will usually be at or near completion – is for them either to write a study where actionable losses were avoided, and thus confidentiality is less of an issue, or to completely anonymise any material so that no one else could identify the project.

Importantly, since APC assessors in this field should themselves be rights of light surveyors, they must not – having read the candidate's advice – be at risk of a conflict of interest with their own clients, who might conceivably be the affected parties.

In simplistic terms, any project starts with an enquiry. The surveyor will consider this enquiry, ensure there is no conflict of interest, and confirm the scope of services required to be provided including what fee they would charge. They then receive an instruction, carry out the service and charge the quoted fee.

But if it were this simple, why is each project and each client different? And why do some projects become more complicated while others are quickly resolved? The purpose of the APC case study is to demonstrate the candidate's ability to deal with unusual circumstances through their understanding of the relevant law or guidance, and to provide innovative recommendations for their client. It is not sufficient to choose an example that deals with none of these issues.

The word count imposed by RICS is restrictive. Often a candidate will have to choose either to deal only with daylight and sunlight issues or with rights of light, but not both. However, they can explain this in their introduction and in their presentation at the final assessment.

The introduction should give sufficient context to enable the assessors to visualise the project, the candidate's involvement and the extent of the case study; that is, will it deal with both planning and rights of light or just one of these?

It should then provide an overview of the issues selected and the rationale for their selection, explaining that there were options for the approach they took, that the client needed to be advised of the implications of each, and that they as a surveyor were required to give a recommendation.

In actual situations, recommendations would depend on the client's wishes and risk profile, which might differ from those of another client in the same circumstances. The candidate needs to explain how their advice might differ accordingly.

In many cases, resolving these issues requires research. They might, for example, look at less well-reported case law and then seek legal advice to understand whether an argument might prove successful, or they might review recent planning appeals to understand which approach stands more chance of success. These would be examples of the lessons they had learned and demonstrate their ability to continue to develop knowledge.

The conclusion should summarise the case study as a whole and not introduce any new information. Any additional relevant information can instead be included in their presentation at the final assessment.

It is important that the candidate produces a final version that is their own work, and they must feel free to disagree with any suggestions. Above all, the counsellor should ensure the work is robust, considers all aspects and is grammatically and typographically correct.

Once the candidate and counsellor are happy with the final version, they should arrange at least one mock interview before submission. This is important because it tests the submission and the candidate in a stressful environment and can identify weaknesses and potential improvements in the material and in the planned presentation.

Even after submission, a candidate would be well advised to participate in further mock interviews to help them gain confidence in dealing with potentially difficult questions.

The RICS also requires candidates to complete the Professionalism module in the year before sitting the APC. It is recommended that this be at least three months before submission so that they can refer to it in their summary of experience.

Be aware that the content of the module is not specifically tailored to rights of light surveyors: it contains core information but misses some of the more critical issues that such surveyors face on a daily basis.

Broadly, though, the process will be similar online and in person, although the timing may vary. The candidate will join the meeting and be introduced to the assessors and the chair. They will then be invited to make their presentation based on their case study.

Since the assessors will all have read the case study it is not necessary or desirable for the candidate simply to repeat the written text. This is their opportunity to expand on the information or bring it up to date.

The assessors then have a short time in which to ask questions on the presentation, before moving on to the technical competencies. Time constraints being what they are, the essential elements of the mandatory competencies are often left to the chair at the end of the final assessment.

Assessors will each have time to ask questions based on the stated competencies, and to examine whether the candidate has achieved the required competency level. In each case the candidate should try to respond on the basis of their identified project under that competency. They should be answering from experience, rather than from hypothetical examples.

However, they would be also expected this would inform the way they would deal with an issue outside their experience. The best answer would be along the lines of: 'This is not something that I have dealt with yet. I would approach it in the same way as I usually do, by research, then coming to a view and seeking confirmation from others who have more experience.'

This answer could be elaborated if, for example, the candidate knew a little more about the particular subject, in which case they could add: 'I believe that this is way that it would be dealt with; but of course I would check with others including lawyers where necessary before offering any advice.'

Occasionally, a technical question also involves an ethical issue. This is unavoidable for rights of light surveyors, and they should, at final assessment, think very carefully before answering any question that might have an ethical dimension.

For example, instructions to negotiate on behalf of more than one adjoining neighbour could simplify matters for the developer but may, in theory, compromise the interests of the clients; that is, the neighbours themselves. The issue is not whether the surveyor has been unethical, but the potential for that to be the case.

The chair's questions at the conclusion of the final assessment may well include some hypothetical situations such as 'What does a surveyor need to do, having qualified when setting up their own business?' The candidate would be well advised to prepare for such questions in mock interviews before the assessment.