Paying compensation may not be enough for the courts where rights to light are concerned. Lisa Mantle explains how developers can protect themselves
A “right to light” is an easement giving a landowner the right to receive light through apertures (commonly windows) in buildings on their land.
Unlike most easements, it does not normally arise through express agreement between landowners but rather through a long uninterrupted enjoyment of the flow of natural light. These rights are rarely registered at the Land Registry and do not need to be registered to be legally binding. In most cases, those enjoying a right to light or those burdened by it will be wholly unaware of its existence. The owners of land burdened by the right cannot interfere with it by constructing a building in such a way as to obstruct the flow of light, for example, without the consent of the benefitting party.
Rights to light are valuable as they provide certainty that a property will continue to enjoy the flow of sunlight. The planning system does not take account of private rights and so a right of light can have an impact on development even where full planning permission has already been obtained. The existence of a right can prevent construction which would interfere with it and can even result in the building being demolished after the fact. A court may order damages in lieu, but recent case law has reconfirmed the court’s refusal to legalise a wrong simply because a party is willing to pay damages.
To acquire a prescriptive right of light under the Prescription Act 1832, a party must have had uninterrupted enjoyment of the light for 20 years. This means that if a building’s windows enjoy light over neighbouring land for 20 years, then the owner of the adjoining building can acquire rights of light over the neighbouring land.
Prevent the prescriptive right
For the developer, the best option is to prevent any rights of light being acquired. To do this and interrupt the enjoyment, the developer must either physically block the light for one full year (by erecting a hoarding or carrying out the development) before expiry of the 20-year period; or make an application under section 2 of the Rights of Light Act 1959 in the form of a light obstruction notice (LON).
A LON acts as if a wall of unlimited height has been erected overnight and access of light to the benefiting building has been interrupted. The purpose is to “virtually” block the light before the right is acquired. The landowner can then develop his land without fear of a claim or injunction from the neighbour.
Procedure
The freeholder, a tenant for a term with at least seven years remaining and a mortgagee in possession can apply for a LON. A LON needs to be registered with the relevant local authority on the Local Land Charges Register. Applications are in a prescribed form and need a plan showing the location of the property and the location of the virtual obstruction. This must be accompanied by a definitive Upper Tribunal (Lands Chamber) certificate, obtained by applying to the Upper Tribunal for confirmation that adequate publicity has been given of the proposed LON. The Upper Tribunal will issue directions about publicity to be given and this requirement will include serving the LON on all parties with an interest in the relevant adjoining building. Evidence of service will need to be provided.
Once the definitive certificate for registration of the LON is issued by the Upper Tribunal, this is sent together with form A, (the application for registration of a LON) for registration on the Local Land Charges Register. This process could take 12 weeks. If the right will be acquired sooner, a temporary certificate can be applied for, in which case, the Upper Tribunal will require evidence that the building will shortly acquire a right of light. If given, a temporary certificate can be registered in the Local Land Charges Register. On the date of registration (of either a temporary certificate in emergency or the definitive certificate), a 12-month period of interruption to the light of the adjoining building commences.
The LON can be challenged within 12 months of registration by issuing proceedings at court which has the power to alter or cancel the notice. Alternatively, a challenge can be made to the applicant direct. Once the notice has been on the register for one year, assuming no successful challenges, any right to light is defeated and the 20-year period is reset to zero.
HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch)
This decision reminded developers that the court can and will grant an injunction to require a developer to demolish part of a completed building because it infringes the neighbour’s rights of light. The court clarified that it will consider all circumstances and will apply the Shelfer test (Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287), under which all of the following criteria must be met to avoid an injunction:
? injury to the owner’s legal rights is small;
? injury is capable of being estimated in money;
? injury can adequately be compensated by a small money payment; and
? it would be oppressive to the developer to grant an injunction.
Here, the application fell at the first as the judge found that the injury to Heaney’s rights was not small. Under the remaining criteria it was determined that the injury was capable of being estimated in money and damages were assessed at £225,000. This was considered not a small payment even given the high values of the properties. On the last, the judge held that the developer had knowledge that the interference with the right to light was not trivial but persisted with the proposed scheme for financial motives when it could have easily cut it back.
Developers should remember that a party is entitled to an injunction against another who interferes with the right of light. The court has shown it will not simply legalise a wrongful act by a party who is willing to pay damages. This applies even where the parties are commercial entities, the neighbour has been kept informed and the developer has attempted to negotiate. In particular, the neighbouring owner will not always be criticised or refused an injunction because he does not apply at an early stage even if he can see the building going up.
Why bother?
LONs are not usually high on developers’ agendas when considering the viability of a proposed development. However, they could be a crucial and fairly inexpensive tool to ensure that the expense of planning and carrying out a development is not wasted by a late claim from a neighbour asserting rights to light.
It is essential to act where a neighbouring building’s windows have enjoyed light over the developer’s property for approaching 19 years to ensure that no prescriptive right is acquired. There may also be merit in registering a LON to flush out any right of light claims where the developer suspects that rights of light already exist. In the best case scenario, the LON defeats the right of light if the adjoining owner does not object within 12 months or, more likely, it will trigger negotiations that lead to subsequent agreement.
Developers should be made aware of how rights to light are acquired through 20 years’ prescription and can be catastrophic to a development even after completion. Increasingly, funders and tenants will require evidence of zero risk in connection with rights to light on a development before committing any monies to a project. The LON is a tool to prevent rights and flush out potential claims at an early stage, allowing for a negotiated settlement and certainty.
Why this matters
Where a development is being carried out which is likely to affect the access of light to adjoining buildings, unless there is a deed on the title confirming that there are no rights to light, then it must be a risk that the right is enjoyed. Rights of light are acquired by prescription following 20 years uninterrupted flow of natural light. Even where neighbouring buildings are less than 19 years old, the right attaches to apertures and so, if windows in a previous building on the site were in the same location or there is an overlap, the right can attach to that opening or overlap.
Light obstruction notices (LONs) interrupt the flow by acting as if a huge hypothetical board of infinite height has been erected overnight. If the LON is registered at the right time, it prevents the acquisition of rights to light by prescription. A fairly inexpensive procedural step can eliminate risk and save enormous expense down the line.
This has become much more relevant since the decision in 2010 of HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch), where the court showed that it can and will grant an injunction requiring a developer to demolish part of a completed building because it infringes a neighbour’s right of light. The court was keen to show that it would not simply legalise a wrong by a party because it was willing to pay damages. This stance was taken even where both sides were commercial entities; the developer had attempted to reach a commercial settlement; and had kept the neighbour fully informed about the development. The neighbouring owner was not criticised for failing to apply for the injunction at an early stage. Historically, developers have assumed that such a delay would defeat an application for injunction.
In the current market, tenants and funders are much more concerned to see any potential liability in relation to rights of light resolved before committing monies to a project.
Where adjoining buildings appear to be 15 to 20 years old, or where there is a risk of an overlap of historical and current openings, it is a fairly inexpensive but effective tool to interrupt the access of light or flush out potential rights by the LON and we are likely to see more of them.
Further reading:
“When is the right time for rights of light” Estates Gazette, 14 April 2012 , p88
Lisa Mantle is a partner at Brecher
