Rights of light are an easement and are commonly acquired simply by a neighbour having enjoyed the light over a neighbouring building owner’s land for a period of 20 years without interruption. The 20 year time period is set by the Prescription Act 1832. Once the 20 year time period has run the right of light is established.
The Prescription Act does, however, include an important exception. Section 3 of the Act provides that a right of light will not arise if the light is enjoyed by the consent of the building owner. This is frequently seen when a parcel of land is sold off and the vendor reserves the express right to build on his retained land. This, if correctly drafted, will operate as a consent for the purposes of S.3 and the neighbour will not then be able to claim a right of light over the building owner’s land.
The recent decision in CGIS City Plaza v Britel Fund Trustees is however a useful lesson about the importance of (a) drafting consents of this type with care and (b) if buying land said to have the benefit of such a consent to check whether it is effective.
In CGIS the property deeds did include a consent of this type relating to a parcel of land that had been sold on, many years before, by the City of Birmingham Corporation to the Bank of England. The consent was expressed to protect development rights to land retained by the Corporation – land which now forms City Plaza. The successor in title to the Bank Of England (Britel) claimed, however, that this consent only operated to the extent that City Plaza remained in the Corporation’s ownership and not, as was the case on the facts here, where the Corporation had sold the land on.
In the event the High Court held that the consent did fall within the provisions of S.3 so Britel could not block development on the City Plaza site. A good result for the developer in the end but generating substantial costs, delay and uncertainty whilst the proceedings ran their course. From a drafting perspective the dispute would have been avoided had the wording of the consent made it clear that the consent related to the particular parcel of land irrespective of whether it remained in the Corporation’s ownership.
The case for reform
The Government is concerned about rights of light given the brake it puts on development. This whole area of law is being be reviewed by the Law Commission but an early change to the law is not yet in prospect – the Law Commission does not expect to publish a final report, with a draft bill, until early 2015.