Rights to light issues should be considered carefully before embarking on a development as the courts may award an injunction or damages for any infringement. By Emma Humphreys and Andrew Francis
Rights to light have been hitting the headlines in the property press in recent months. In particular, the decision in Regan v Paul Properties DPF No 1 Ltd [2006] EWCA Civ 1319 [2006] 46 EG 210 has shown that developers that ignore this area of law do so at their peril and courts dealing with rights of light cases often comment on its difficulty. A number of basic principles and practical points should be borne in mind so as to ensure that advisers appreciate the importance of rights of light.
A right to light is an easement once acquired. The nature of the right is best described as: (i) the right to receive light through apertures in a building and (ii) the ability to restrain any interference with the enjoyment of such a right when the interference threatens to prevent the reasonable use of the rooms or building receiving the light. In assessing whether an interference is actionable, surveyors usually apply the 50:50 rule, which provides that there will be an actionable interference where less than half of a room is adequately lit. This law has nothing to do with daylight and sunlight rules in planning law, or with the high hedges legislation.
Acquiring the right
It is possible for rights to light to be granted or reserved expressly. An express grant or reservation will usually be registered on the relevant property title. More often, rights of light are acquired through either section 3 of the Prescription Act 1832 or lost modern grant. The use of common law prescription requiring 20 years’ enjoyment of the light since 1189 is rarely used, for obvious reasons.
The most common method of acquisition is under the 1832 Act (statutory prescription). This requires at least 20 years’ enjoyment of the light, calculated backwards from the date of issue of the claim form (or the making of the counter-claim). The enjoyment must satisfy the terms of section 3 and there must, in particular, be no written consent of the servient owner to the enjoyment of light over its land.
Alternatively, a party may be able to rely upon lost modern grant if it can show 20 years’ use at any time. (Although the Custom of London prevents the assertion of a lost modern grant claim within the boundary of the City of
Under section 4 of the 1832 Act, it is possible to prevent a building from acquiring a right to light through statutory prescription, by interrupting the relevant light for one year. “Spite screens” (together with appropriate notice to the neighbour) are sometimes used, but these may be difficult in planning terms. A better route is usually the registration in the local land charges register of a light obstruction notice under the Rights of Light Act 1959. This notice assumes an opaque structure interrupting access of the light to the neighbour’s property according to the dimensions and position specified in the notice. If the notice remains registered for one year and the recipient of the notice does not issue proceedings to assert a right to light within that time, any right acquired through statutory prescription will be lost.
Losing a right to light
In addition to light obstruction notices, other forms of interruption can result in the loss of a right to light after one year under section 4 of the 1832 Act. As well as a physical obstruction erected by a neighbouring owner, the dominant building’s apertures may be covered up by those in occupation (through internal boarding up, for example) so as to stop the enjoyment of light.
Obstruction of light by blocking apertures may also be regarded as sufficient to constitute permanent abandonment of the right, although this requires an examination of the method by which the apertures have been obstructed.
In certain circumstances, the failure to erect a new building promptly after the demolition of the previous one may cause rights to light to have been abandoned. However, where such rights have not been lost, those rights will be transferred to the new building where the new windows are reasonably coincident with the windows in the previous building.
A right to light may also be lost by agreement, or where the ownership of the freeholds of two properties is acquired by the same person. This latter route will not extinguish any rights enjoyed by tenants. Rights to light can also be extinguished under section 237 of the Town and Country Planning Act 1990 and other statutory powers, and this provision must be considered where adjoining land is in public ownership and may be redeveloped.
General advice
Developers often proceed with projects despite potential rights to light claims. However, they should be more cautious, given the recent confirmation by the court in Regan that an injunction will generally be the primary remedy for infringement of a right to light.
Developers should try to resolve rights to light issues at an early stage. Legal advisers can investigate whether any documents or notices relating to rights of light affect the property. A specialist rights of light surveyor can advise whether the redevelopment is likely to affect the light to neighbouring properties.
One option for trying to flush out any potential issues at an early stage is to register light obstruction notices against neighbouring properties, although there is a risk that the developer may become caught in costly litigation brought by those seeking to protect their rights. Another approach is for a developer to give as much information as possible about its plans at an early stage to neighbouring owners and occupiers. If the neighbours raise issues or take action at a later stage, the court may prefer to award damages rather than an injunction, as in Midtown Ltd v City of London Real Property Co Ltd [2005] EWHC 33 (Ch) [2005] 14 EG 130.
Owners and occupiers of buildings enjoying light cannot expect the planning process to protect their rights of light. Instead, they should seek advice early on from a rights of light surveyor and a solicitor and may have to take swift action to protect their rights.
Any negotiations with a developer need to be handled with care because any open indication that a complainant is prepared to accept a financial settlement is likely to mean that such a party will be refused an injunction, thus weakening its bargaining position.
If a complainant is genuinely not interested in a financial settlement and wants to protect its rights, it must be prepared to issue injunction proceedings against the developer. This can result in significant costs and the complainant will also be required to give an undertaking in damages in respect of any interim injunction. This undertaking makes the complainant potentially liable for any losses suffered by the developer in the event that the interim injunction is not affirmed at the final hearing.
Rights to light agreements
Following the assertion of a prescriptive right to light, parties sometimes enter into a rights to light agreement so as to achieve certainty. This may allow a party to erect a building within certain specifications. If properly worded, it can amount to a “consent” within section 3 of the 1832 Act, so as to exclude any right to light being acquired in the future by prescription.
Another option is a restrictive agreement that operates on the same basis as a restrictive covenant, so that any infringement of its provisions should entitle the complainant to an injunction.
| Why this matters |
| As shown by Regan, a neighbour’s right to light may restrict a party’s ability to redevelop, either beyond a specific area, or at all. Even if an injunction is refused, the court may award damages. When assessing damages, courts may use the ransom or release fee principle based upon the extent to which the development exceeds the permissible envelope. This approach was used in Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2006] EWHC 3584 (Ch) [2006] 41 EG 226, where the developer had to pay damages of £50,000 for reducing light to two windows on a stairwell. Damages can also represent the value of the area of the building to which the light has been reduced. The affected areas are divided into zones, with those nearest the affected apertures having the higher value. The overall average is often referred to as the equivalent first zone (EFZ). The total EFZ (area of loss) multiplied by the capitalisation figure (which may depend upon the yield of the property) will give the book value. On top of book value, a figure may be awarded for loss of amenity. Damages may also be parasitic, in that the loss is calculated by reference to the effect of the loss of light upon the entire building, including windows that do not have a right to light. Ignoring rights of light when planning a redevelopment can be a costly mistake. The grant of planning consent is not enough. Those advising landlords and tenants need to be aware of the potential for rights to light disputes, as this is a complex area. Leases may reserve rights to light to the landlord and prohibit the tenant from enjoying any light other than by the consent of the landlord. These provisions will prevent the tenant from objecting to any reduction in the light to its premises. If the lease does not contain such provisions, tenants may be able to acquire rights. These can be asserted against the landlord, or against a tenant of the same landlord if the right has been acquired by statutory prescription (but not under the doctrine of lost modern grant or by common law prescription). |
| Further |
| Rights of Light and How to Deal with Them Anstey (2006 ed), RICS Rights of Light – The Modern Law Bickford-Smith S and Francis A (2nd ed) |
Emma Humphreys is an associate at Charles Russell LLP and Andrew Francis is a barrister at Serle Court Chambers
