What right? What light? Whose right?

Simply put, a right to light benefits the owners or occupiers of residential or commercial buildings and allows them to receive sufficient natural light through windows or apertures. It is not a right to a view or privacy.

A right to light can come into existence by various means; it may be granted expressly in a written deed or impliedly by reference to the presumed intentions of neighbouring owners, or it may be acquired by prescription arising when a building’s owners or occupiers have enjoyed the access and use of light for a period of 20 years, without interruption and without written consent or agreement, and as set out in the Prescription Act 1832.

This article focuses on what developers should know and how to deal with possible rights-to-light issues.

Infringing rights to light — what's all the fuss?

A substantial infringement of any existing rights to light can trigger damages or injunctive relief before, during or, worse still, after the completion of a development — see below, HKRUK II (CHC) Ltd v Heaney [2010].

However, a reduction in the amount of light received does not lead to an automatic claim. In practice, the 50/50 test, where a room is considered adequately lit if half of the room can be used for its intended purpose, is the benchmark and a good place to start. However, the Court of Appeal rejected this in Ough v King [1967] 1 WLR 1547. Even if the interference does not breach this test, a court may well consider other factors in its assessment.

The owner of the land burdened by the right (the servient land) cannot interfere with it without consent. Having said that, there are ways and means of overcoming this constraint.

Overshadowing rights to light — acquiring land for planning purposes

The outlook is not entirely bleak for developers who wish to develop land burdened by rights to light. In particular, developers may seek the assistance of a local planning authority to step in and acquire the land compulsorily, although the land must already have planning permission for the proposed development. This was previously actioned under section 237 of the Town and Country Planning Act 1990, whereby a local planning authority had powers to override easements and other rights over land.

However, new powers in s.203 of the Housing and Planning Act 2016 have come into force, replacing s.237. Although the measure is similar to s.237, there are a few changes: a wider ”pool” of authorities authorised to step in and exercise their powers; and powers expanding “qualifying land,” which widens the benefit of the power to land vested in, or acquired or appropriated by certain organisations, i.e., urban development corporations or land acquired by acts of Parliament.

Developers with land previously acquired under s.237 need not worry. The implementation of the new power will not affect them.

The city of London utilised its power under s.237 on a few occasions, recently and notably in relation to the development of 22 Bishopsgate. In this example, the developers had been locked into a row with neighbouring owners and campaign groups who argued that the 62-storey tower would encroach on their rights to light. With the threat of an injunction looming, the city of London decided to acquire the land for planning purposes on the basis there was a strong case to use the powers, including that the scheme would provide “a significant increase in flexible office accommodation and supporting the strategic objective of the Corporation to promote the city as the leading international financial and business centre,” (building.co.uk).

Further reasoning behind the s.237 step-in was that, although negotiations had been undertaken with affected owners, there remained a large number of interests where agreement had not been reached. The conclusion was that, without the engagement of s.237, the development would have been unlikely to proceed, and certainly would not have proceeded within the timescales contemplated.

Development and rights to light — do not develop in the dark

Developers should make all enquiries and carry out full investigations prior to setting any proposed development in motion. This must be an essential part of their due diligence and must be taken seriously and extensively. They should seek specialist advice that involves both legal counsel and input from an expert rights-to-light surveyor. If they identify such a right, they should consider the level of damage likely, or whether they could seek an injunction from the neighbouring property owner(s). At this point, the developer will need to make an informed decision as to how to progress. Developers may also want to consider putting a “pot” of money aside at this stage and being prepared to pay out that pot to neighbours objecting to the development.

Developers who do not consider the needs and requirements of neighbouring buildings could face the prospect of having their buildings altered, as was the case in HKRUK II (CHC) Ltd v Heaney [2010], which saw the award of injunction requiring demolition of two floors of a new building that had already been let. However, following the Supreme Court ruling in Coventry v Lawrence [2014], a remedy in the form of damages, reviewed on a case-by-case basis, rather than just jumping onto the injunction bandwagon, is likely to be the decision of the courts. If, as the Supreme Court suggested, a more flexible approach is adopted, then very likely the courts will award damages more frequently than injunctive relief.

Insurance

Insurance policies are available to protect developers from possible future claims of infringements of right to light. To allow a development to proceed, a developer can take out an insurance policy to protect itself from a range of potential costs. Simply because a building has been demolished does not mean any right to light is automatically lost. It may simply be suspended. Note also that if a building is redeveloped, with apertures placed in identical positions, then the right will be re-established. If apertures are placed elsewhere, this may lead to a loss of the right.

A light at the end of the tunnel — what's on the horizon?

The Law Commission submitted a report to Parliament on right to light in December 2014, proposing various changes to prescription rights and different tests to assess light enjoyed in both commercial and residential premises. To date, there have been no further advances.

Until Parliament considers the Law Commission’s findings, this somewhat outdated right will continue on its well-trodden and fundamentally challenging path.