If you are planning to build on a piece of land it is essential that you first establish whether any neighbouring properties have a right of light which may be blocked by your development. If you complete your development and it subsequently becomes apparent that someone has a right of light which has been breached, the consequences can be very serious: in a worst-case scenario, your building may need to be demolished.
What is a right of light?
A right of light is a type of easement. It is a right which allows a building on the dominant (benefitting) land to receive light through windows, skylights and glass roofs, with the light passing across the neighbouring servient (affected) land. If you own a building which has a right to light you can take action against someone who wishes to build on the servient land in a way which obstructs the light.
A right of light entitles you to receive sufficient natural light to allow a room to be used for its “ordinary purpose”. This means that the light level you have a right to will be different depending on what the building is (eg a conservatory compared to a store room). However, there are some standard tests that can be applied to determine what is sufficient for an adequately lit room: the rule of thumb is that at least 50% of the room should have one lumen of light (equivalent to the light given off by one candle) per square foot. The right only entitles you to a sufficient level of light, so even if there is a significant decrease in light, provided that the remaining light is sufficient your right will not have been breached.
It should be noted that a right of light cannot attach to land that hasn’t been built on, does not amount to a right to direct sunlight and doesn’t offer any right to a view. It is also unlikely that a court would find there to be a right to light for solar panels (as a panel on a roof is not a room being used).
How is a right of light obtained?
Rights of light can be acquired in several different ways, including by express or implied grant, by statute, by common law prescription or by the doctrine of lost modern grant. However, most rights of light are established in accordance with the rules set out in the Prescription Act 1832 (the “Prescription Act”). This act allows a right of light to be acquired where the light has been enjoyed for a period of at least 20 years, without written consent having been given to this.
This means that if you are planning to develop a piece of currently open land with adjoining buildings which have been there for at least 20 years, you should always consider whether rights of light may exist. However, even where the adjoining buildings are newer, they may still benefit from a right of light if they directly replace older buildings and have windows in similar positions.
What remedies are available if a right of light is blocked?
When a right of light is infringed, the owner of the building with this right can apply for an injunction against the developer. This application may be made before the development is completed (for an order to prevent the development) or it may be after completion (for an order that the development be demolished or cut back to prevent interference). The court has a discretion to award damages in lieu of an injunction and an owner applying for an injunction should always ask for this as an alternative remedy.
There can be a tendency to think that once a development is complete, the court is just going will grant damages; however, each case will turn on its own facts: in a 2010 High Court decision an injunction was granted requiring a development to be cut back even though the relevant floors had already been let and the owner of the right of light had failed to take any steps during construction, despite attempts by the developer to negotiate.
In deciding whether an injunction or damages is appropriate, the court will consider a number of factors, including the nature of the claimant’s property (residential or commercial), the extent of the loss of amenity, the conduct of both parties, any unreasonable delay in seeking an injunction, the impact of an injunction on the defendant and whether the scheme is in the public interest.
What can a developer do about a right of light?
To avoid the risk of an injunction or damages claim, any potential rights of light issues should be identified and addressed at an early stage in the development process. One the first steps should be to commission a right of light report from a surveyor. The surveyor will consider all relevant title information, visit the site and carry out a loss of light calculation. The report will identify all owners and occupiers that may have a right of light and the extent of the loss of light that each may suffer. The report will also give options for what the developer can do to minimise the risk of a claim being brought.
Where a developer becomes aware that rights of light may exist, the question is what can be done about them?
Building in a way which does not obstruct the right
The right of light report may include a “development envelope”, setting out the space within which development can take place to ensure that any breaches of rights of light are eliminated. This enables to the developer to build in a way which ensures no rights of light claims arise. However, depending on the nature of the space available, it may not be realistic, or financially viable, to build in a way which has no risk of breaching a right of light.
Negotiation for a deed of release
Once a developer has obtained a rights of light report he will be able to open negotiations with the adjoining building owners to try and get these rights released. If the dominant land owners agree, the parties can enter into a rights of light agreement, under which the dominant owners release the rights (wholly or partially), in return for a payment from the owner of the servient land. While the negotiated payment may well be greater than the level of damages that would be assessed, this offers a developer certainty before work commences.
If a developer decides to proceed with a development which may infringe a right of light, it may be possible to obtain insurance, to indemnify it from all costs arising from a subsequent claim. This does not mean that the developer is protected from an injunction requiring the obstruction to be removed, or from a significant damages claim being brought, but the insurance will cover the costs of these.
However, insurance is only likely to be available where no communication has been had with the owners of the building benefitting from the rights of light and the premium may be high. The insurers will want to see the grant of planning permission as a pre-requisite to cover being offered and will also want to see a rights of light report, copies of relevant title deeds, details of any planning representations made by neighbours and an assessment of the reduction in value of the development resulting from an anticipated reduction in size.
Defeating a right of light
A right of light can be extinguished or defeated in several ways – the most usual are set out below. However, while defeating the right may seem to a developer like an attractive option (due to its lower cost) it will not always be possible and offers very little certainty.
- Physical impediment – preventing a right of light being acquired: where a building has been receiving light for several years but not yet the required 20, it is possible to prevent a right of light being acquired by blocking the flow of light (with a hoarding, screen or building). However, the light needs to be blocked for a full year, which means that the barrier must be in place before 19 years and 1 day from the start of the prescriptive period – timings must therefore be checked carefully before relying on this approach.
- Physical impediment – defeating a right acquired under the Prescription Act: where a building already has a right of light and the light is subsequently blocked by the servient owner for a period of one year, without challenge by the owner of the dominant land, the right of light existing under the Prescription Act will be defeated. However, a well-informed building owner is likely to take action to get the impediment removed during the one-year period (and may also be entitled to damages).
- Light obstruction notice: the Rights of Light Act 1959 allows a notional obstruction to be created by notice and registered as a local land charge. However, before the notice can registered, a certificate must be obtained from the Lands Tribunal confirming that sufficient steps have been taken to inform people with a proprietary interest in the building of the proposed registration. Once the notice has been served, it works in the same way as a physical impediment, with the owner of the dominant land having a year in which to challenge it (the notice can also be used to prevent a right of light being acquired). As with the physical impediment, a well-informed building owner is likely to take action to get the notice removed during the one-year period.
- Abandonment: if the owner of the dominant land blocks up the window and is proved to have a fixed intention to never use the right again at any time in the future, the right will have been abandoned. While the blocking up is relatively easy to prove it can be very difficult to demonstrate that the necessary intention existed.
Proposed changes to the law
In December 2014, the Law Commission published a report on rights to light, setting out its recommendations for reform. The aim was to strike a balance between the developer and the owner of the right to light, looking for ways to discourage landowners from using delay and silence to get a higher price for giving up a right to light. The key recommendations of the report were:
- To replace the current prescriptive methods of gaining a right of light with a single statutory method based on 20 years use, available to freehold owners only.
- To introduce a statutory notice procedure allowing landlord to require neighbours to tell them within an eight-month period if they intend to seek an injunction to protect their right to light (losing the opportunity for that remedy to be granted if they don’t respond).
- An updated procedure allowing a “certificate of light interruption” to be registered as a local land charge – this would be less cumbersome, expensive and time consuming than the current light obstruction notice.
- A rule that if a right of light has not been used for five years this will be sufficient evidence of an intention to abandon the right.
- A mechanism to allow the Lands Tribunal to discharge or modify rights of light in specified circumstances.
- A statutory test to clarify when courts may order damages to be paid rather than an injunction granted.
When developing land, it is essential that potential rights of light claims are considered and dealt with at an early stage. Opposition from owners with the benefit of a right of light can lead to significant delays and may mean a complete re-design, with the consequent need to obtain a new planning consent. Addressing these issues before the design is finalised and planning permission is obtained can save a great deal of time and money.