by John P Dooley and Martin Gunson
This is an esoteric subject which often causes concern to solicitors and surveyors alike although there are a number of surveyors who do specialise in this area. The tendency has been to concentrate on calculation of loss of light but it is as important to appreciate the legal position of the parties involved in order to determine the relative strengths of their bargaining positions.
Rights to light involve a particular part of the law of easements although it will be appreciated that restrictive title convenants often exist which inhibit the ability to develop or extend existing buildings. This article concentrates on the position of “rights to light” as easements – the phrase “right of light” is misleading.
Dominancy and serviency
An easement may exist for the benefit of one property (the dominant tenement) over another property (the servient tenement). With a right to (receive) light, the servient tenement (over which a right to light may be claimed) is most commonly a development site or an existing building which is to be extended. It will be an adjoining (dominant) building (with its existing apertures) which will claim a right to light over that (servient) site or building. This right to light is a (negative) “right to the reception of light in a lateral direction without obstruction” (Gale on Easements) and does not extend to, say, a right to a view or natural right to a free flow of light.
Acquisition of the right
Like any other easement, a right to light can be granted:
- expressly by deed;
- by implied grant or reservation (eg easements of necessity and intended easements); or
- by presumed (prescriptive) grant.
The point of this last and most important form of grant is that, if long user is proved, a court will presume that that user began lawfully (ie as a result of a grant). This presumption can be made at common law (technically user “as of right” from 1189 although this can be presumed if user for 20 years or more can be shown) Lost Modern Grant (not applying to rights which must have arisen after 1189: eg any rights to light which might be claimed for the apertures to St Paul’s Cathedral) or more commonly under the important Prescription Act 1832.
Prescription Act 1832
It is not always clearly grasped that the statutory prescriptive period (for rights to light just 20 years) is measured backwards from the action in which the right is questioned. This, put more simply, means that an easement under the Prescription 1832 Act (the “1832 Act”) can be established only by the bringing of legal proceedings. Then one should compute backwards from the commencement of proceedings the necessary period of user. With the 1832 Act rights to light are singled out for special treatment by section3 (rather than by section 2 which deals with other easements).
Section 3
This provides that:
(a) the actual enjoyment of the access to light to a dwelling-house, workshop or other building;
(b) for 20 years or more;
(c) without interruption (and subsequent acquiesence by the dominant owner);
(d) shall make the right indefeasible UNLESS such right of access to light has been enjoyed by written consent or agreement.
This means that with rights to light acquired under the 1832 Act, the user need not be “as of right” (that is they do not have to be “without force, secrecy or permission” unlike other easements). Nevertheless any user must not be by written consent lest such user be killed under 1832 Act prescription. Further, the wording of section 3 is strong and unqualified enough to enable (exceptionally) not only a tenant to acquire an easement of light against another tenant of his landlord but also against the landlord himself. A developer seeking to buy an adjoining owner’s right to light must therefore ensure that he deals with all parties entitled to those rights which may not just be the adjoining freehold owner. Finally, of course, the period of user must be without interruption (hostile interruption rather than mere non-user) by the servient owner (aka developer or his predecessors). With light, this interruption may now be nominal (namely, by virtue of registering a light obstruction notice), But the interruption will be effective in preventing an easement being prescriptively acquired only if the claimant of the right (the proposed (dominant) adjoining owner) has:
(a) acquiesced in (submitted to) the obstruction (a question of fact);
(b) for a year after he has known both of the obstruction and the person responsible for it (section 4)
Extent of right to light
The foregoing has dealt with how to establish whether a right to light exists. What are the consequences (if any) of an interference with that right? Infringement of any right amounts to the tort of nuisance, but whether it is actionable (as described below) depends on the extent both of the right and the interference.
It is difficult to assess this without becoming involved in the “science” of the measurement of light. Two things are, however, clear. First, there is a big difference between how the courts see the extent of the right and how surveyors measure the extent and infringement of the right. Second, one is concerned only with the residual amount of light left after the infringement: the amount of light infringed is not strictly relevant.
The courts
The courts adopt a commonsensical approach. An infringement of a right to light will amount to an actionable nuisance if it interferes with the sufficiency of light (such sufficiency being measured according to the “ordinary notions of mankind”) and renders the dominant owner’s use and enjoyment of his house less than comfortable or use and occupation of his business less than beneficial: see Colls v Home and Colonial Stores Ltd [4] AC 179.
Nevertheless, in order to give prudent advice to a developer (servient owner) or an adjoining (dominant) owner it is still vital to instruct a surveyor to measure the light. After all, lay witnesses’ evidence is not always altogether satisfactory. It would appear that such evidence “is necessarily subjective and the recollection by laymen of the amount of light formerly enjoyed is notoriously unreliable”. Further, it seems that laymen are “incapable of distinguishing between direct and reflected light” (the latter to be discounted in any computation): see Carr-Saunders v Dick McNeil Associates Ltd [6] 2 EGLR 181.
The surveyor
Not that the “45 degrees rule” as it was known has been laid to rest, the rights to light consultant will use the 50/50 rule to assess infringement. This provides that a room may be regarded as adequately lit for all ordinary purposes if 50% or more of its area receives not less than one lumen (an amount of light considered adequate for an average person) of light at desktop level (2ft 9ins above floor level). A “Waldram” graph may be used to plot those points on a contour plan and show the distribution of daylight within the room on the basis of present conditions and then on the basis of those conditions that would be brought about if the neighbouring (servient) owner’s proposed (if not actual) development took place. This will split the room into a number of zones: the insufficient, adequate and loss zones from which the necessary calculations or predictions can be made (although, once again, remember that it is the law courts rather than the surveyors which make the final decision — the 50/50 rule is “merely a useful guide to be adopted or discarded according to the circumstances” (Carr-Sanders supra).
Practical and commercial considerations
Any developer will need to ascertain whether there are any inhibitions or third-party rights (such as rights to light) on the development he proposes — the developer may then decide to tailor his development so as not to infringe these. If, however, a right to light has been established which would be infringed and be actionable, then the developer who still wants to proceed with his development will have to weigh up whether:
(1) to “buy” the right to light (ie obtain a waiver of the dominant owner’s right) so as to allow the development to proceed without interference; or
(2) proceed without and face the risk of interference by action for an injunction and/or an award of damages.
This will be a commercial decision based on the likelihood of such an injunction being obtained and the costs to the developer in pursuing either of these two avenues. The most significant costs would be likely to arise if the development programme were halted by the grant of an interim injunction or if there were an award of damages.
The quantification of this will be different in each case and depends not only on the strength of the dominant owner’s position (ie the likelihood of his obtaining an injunction) but also the commercial pressures upon the respective parties. The developer may already have contracted to provide the new building and be under (time or other) pressure. Any delay in his programme could mean incurring liability to, say, his tenant, penalties becoming payable under contracts and funding costs increasing. A dominant owner in a strong position rarely has such pressure, but where his position is not strong he may still have a nuisance value as against the servient developer.
Possibility of an injunction for infringement
The grant of an injunction by a court for infringement is only a discretionary remedy and a court would be less likely to grant one where a monetary compensation could be ordered as an alternative and adequate remedy. This is more likely to be the case for example with an office building where additional lighting systems can make a building without much natural light functional. The basic principle behind the award of damages in action for tort is to put the injured party back in the position he would have been in had the tort not been committed. Diminution in rental value of the dominant owner’s building may be one element of this as could be the cost of installing lighting systems to enhance the lighting levels.
The threat of an application for an injunction may still loom forebodingly over a developer preparing to “take a risk”. Application for an interim injunction (pending final determination by the court of the dominant owner’s action) necessitates the dominant owner giving the servient owner (the developer) a cross-undertaking for damages. A servient owner unable to satisfy such a cross-undertaking would not therefore be granted an interim injunction. The dominant owner may try to circumvent this by starting proceedings and asking for the court (at the ultimate hearing) to grant a permanent injunction. No cross-undertaking is required and, although the developer is not prevented from proceeding with his development, he is at risk of the court ultimately granting an injunction.
In advising either developer (servient owner) or adjoining (dominant) owner a detailed investigation of both the existence and extent of any possible legal rights at as early a stage as possible is required. Rights to light are just one part of the overall investigation, but an early identification of the issues, problem areas and potential risk exposures is the best way to reduce the costs associated with the infringements and these should preferably be identified before the developer becomes committed to a particular scheme or before tying oneself into a loan facility to, say, fund site acquisition and building costs.
Preventing acquisition of rights to light
The procedure for registering a light obstruction notice (ie in acting on behalf of a servient owner/developer and being in lieu of a physical obstruction of access of light) under the Rights of Light Act 1959 is a little involved. The object of the exercise is for the developer/servient owner to register a light obstruction notice with the appropriate local authority (in which the dominant building is situate) as a local land charge for a period of one year: which will then represent the interruption and period of acquiescence referred to under “Section 3” above. Procedurally, however, one must begin by way of application to the Lands Tribunal. The Lands Tribunal must first produce a certificate that adequate publicity of the proposed application to the local authority has been given (Part VI The Lands Tribunal Rules 1975). Therefore, two copies of the proposed application (in Form A of the Local Land Charges Rules 1977) to the local authority must accompany the actual application (in Form 6 of rule 27 Lands Tribunal Rules 1975) for a certificate from the Lands Tribunal. The Lands Tribunal will then decide what publicity is to be given of the (proposed) application. This publicity shall be “by way of advertisement or otherwise to those persons who appear (it seems to the Lands Tribunal rather than the servient owner) to have an interest in the dominant building”.
The irony for a servient owner/developer of the light obstruction notice procedure (to prevent adjoining/dominant owners acquiring rights against the developer) is that the sheer fact of the Lands Tribunal’s advertisement requirements will put those adjoining owners on notice as to rights they might not otherwise have been aware of: further, they should then be aware that they have just under one year to refute “acquiescence” and nullify the developer’s “interruption” (if any): see “Section 3” above.
Extinguishment of rights to light
The remedies for infringement of any easement are:
(a) abatement (a remedy not favoured by the law); and
(b) action in the law courts (briefly dealt with above).
As to the actual extinguishment of a right to light there is no statutory procedure to discharge or modify an easement (as there is for restrictive covenants). Indeed, the right to light may be extinguished:
(a) by express release by deed (obviously a matter for negotiation);
(b) by implied release involving an actual intention to abandon the right to (the reception of) light: non-user by itself will not suffice although non-user for a long period raises a presumption of intention to abandon. This is an important principle. It is clearly possible to transfer a right to light from a window (aperture) in a demolished building to a window in a newly erected building: see Moore v Rawson 1824. Alteration or destruction followed by rebuilding does not necessarily terminate the right to light: see Scott v Pape 1886. Provided the new building is not entirely different from the old and that any intention to abandon the right to light is not more than a temporary intention to abandon enjoyment of the former light. Clearly, this has important implications for demolition and redevelopment of buildings in built-up areas such as the City of London; or
(c) by unity of both ownership and possession of the dominant building and servient land (development site). With easements generally, it appears that unity of possession merely suspends the easement/right to light whereas if there is unity of ownership the right to light will continue until there is unity of possession (whereupon it will be extinguished).
Conclusion
The law underlying rights to light may be somewhat involved but is a necessary element in understanding the potential risk and cost exposure in a development. The aim of this article been to take some of the mystery out of the legal rather than ractical aspects of this subject. It is important for any “dominant” owner entitled to a right to light to be continually aware of a potential infringement of his rights, as well as for a potential “servient” owner to ensure his proposed development can proceed without interference.
