With recent rights to light case law causing substantial headaches to developers and a current Law Commission consultation aimed at curtailing the powers of Courts to grant injunctions to enforce rights to light, it is more important than ever for those wishing to develop their property in a built-up environment to be aware of the law in relation to rights to light and how it may change in the near future.
What is a right to light?
The right to light is a right for the owner of a property (the “dominant land”) to unobstructed access of light through specified apertures (usually windows) of their premises. The right to light is an easement that can be enforced against the owner of land against which the right is held (the “servient land”).
How does a right to light come about?
There are two main methods of obtaining a right to light:
1. By express grant/reservation
This occurs where, for example, a landowner decides to sell part of their land but wishes to limit interference that may be caused to his land by the purchaser’s developments. The easement will be recorded in the transfer to the purchaser and, in the case of registered land, will appear on the register of titley prescription
2. Where a property has enjoyed 20 years’ access of light without any interruptions lasting one or more years, and without the express permission of the owner of the servient land, then it is likely that a right to light by prescription has been acquired.
A right to light acquired by prescription is much harder to discover as it is unlikely to be registered and notice need not be given to the owner of the servient land in order for it to come into existence.
Why do rights to light matter?
Rights to light most commonly cause problems when the owner of land, burdened by a right to light, begins development work on their property.
Not all interference with light will be classed as an infringement of a right to light. The interference must cause a nuisance. The test for whether a right to light has been infringed is whether there has been:
“such a deprivation of light as to render the occupation…uncomfortable in accordance with the ordinary ideas of mankind”1.
There will be no nuisance if the dominant property:
“Remains adequately lit for all ordinary purposes for which the property may reasonably be expected to be used”2.
If a Court finds that a right to light has been infringed, it can either order the infringing party to pay damages if the interference is “small”, or alternatively grant an injunction to either prevent the development going ahead or require the developer to demolish or cut back existing development.
A right to light can, in certain circumstances, cause serious problems to an intended development. The recent case of HKRUK II v Heaney3, where the owner of a right to light obtained an injunction compelling a developer of servient land to demolish a completed development even though the owner of the right to light had delayed bringing the claim, has highlighted the ability of landowners to prevent developments and/or name their price for consenting to interference with rights to light.
Law Commission consultation
On 18 February 2013, the Law Commission launched a consultation into the amendment of the law of rights to light. The consultation period is due to close on 16 May 2013.
The four main proposals made by the Law Commission are:
- That it should no longer be possible to acquire new rights to light by prescription;
- That a statutory test should be put in place to determine when the Court will grant an injunction and when only damages will be available;
- That a notice procedure should be instituted that must be complied with before a claim for relief against interference with rights to light can be made; and
- That the Lands Chamber of the Upper Tribunal be granted powers to discharge rights to light where they are deemed to be obsolete or of no practical benefit.
The full consultation paper and contact details for comments may be found at http://lawcommission.justice.gov.uk/consultations/rights-to-light.htm.