On this website, a couple of years ago we posed some questions that arose concerning rights of light in a case which had settled at the door of the court – Sirosa Properties Establishment v The Prudential Assurance Company Ltd. Had the case fought we could have expected some useful illumination to be cast concerning the importance or otherwise of natural light in an office environment, especially given the identity of the trial judge, Sir Paul Morgan.
Since then, not one single case has emerged from the courts in what the Royal Institution of Chartered Surveyors, rightly in our view, regards as a “crucial area”. Why so?
Through a glass, darkly
Disputes over rights of light often emerge at quite a late stage in a development cycle. Given the uncertainty over the outcome of litigation, a prudent developer faced with a claim for an injunction protecting alleged rights of light may well halt the bulldozers or pause the scaffolders, with all the waste that that course will entail.
Property owners are accordingly keen to receive advice on the key questions that arise again and again: How valuable will a tribunal consider my rights of light to be? How likely is it that an injunction will be granted restraining any interference with them? If an injunction is refused, what sort of damages in lieu will be likely? These questions arise in the context of both commercial development and residential accommodation.
We are aware of many cases which have got close to trial that would have determined the answers to some of these questions, if not finally, then at least in a way that would have given more certainty to the whole industry. Alas, there has not been a single reported decision in this area since that of the High Court in Beaumont Business Centres Ltd v Florala Properties Ltd [2020] EWHC 550 (Ch); [2020] EGLR 20.
Shafts of light
Instead, we have had lots of useful bits of advice as to safeguarding rights of light, and how to proceed where interruption to light is threatened.
The RICS
The RICS has played a pivotal role in the provision of guidance to its members concerning rights of light, commencing with the publication of the first edition of a guidance note on the subject in 2010, professional guidance in March 2016, and a third edition of that guidance earlier this year.
This latest edition, its authors claim, has undergone a rigorous process, including extensive drafting and updates by an expert working group, expert peer review, and an open consultation, with the aim of delivering a substantial enhancement in professional best practices in this crucial specialist area.
Key features of this new edition include updated case law examples, a revised legal Rights of Light protocol (the latest in the series of property protocols), comprehensive coverage of geospatial/measured surveys, and insights into insurance and compensation. This is very much a practitioner’s working document, and lawyers and surveyors alike would do well to study it carefully.
HM Land Registry
This year has also seen the publication on 15 July 2024 of HM Land Registry’s Practice guide 62A: rights to light or air.
This short guide is aimed primarily at solicitors and other conveyancers. It sets out how HM Land Registry deals with requests by parties to record easements, restrictive covenants and other provisions relating to light or air.
It also shows the Land Registry’s practice in adding, amending or removing entries where parties agree to vary or release rights to light or air. In addition, it spends a little time discussing the acquisition of rights of light by prescription, as well as the rather arcane (but vitally important) topic of stopping the period of prescription from running by obtaining a certificate from the Upper Tribunal, and registering a light obstruction notice as a local land charge, pursuant to the Rights of Light Act 1959.
Beyond these subjects, given its remit, the Land Registry does not go.
The Law Commission
As one has come to expect of any publication from this crucible for our eventual legislation, the Law Commission has produced its own scholarly commentary spanning the whole subject of rights of light – and given us the benefit of its views as to the way in which the law should develop (of critical importance, we think, albeit infrequently referred to in the rights of light cases).
Alas, its latest work on the subject was in 2014, with the publication of its Rights to Light report (Law Com No 356), and, despite its useful and constructive recommendations (numbered among which were a statutory notice procedure that would allow landowners to require their neighbours to tell them within a specified time if they intend to seek an injunction to protect their right to light, or to lose the potential for that remedy to be granted; the introduction of a statutory test to clarify when courts may order damages to be paid rather than halting development or ordering demolition; and a power for the Lands Chamber of the Upper Tribunal to discharge or modify obsolete or unused rights to light), legislation has not been carried forward.
CIBSE
As we have written before, it is also worth keeping an eye on the suite of documents on lighting standards published by the Society of Light and Lighting and its parent body the Chartered Institution of Building Services Engineers. These valuably include bespoke guidance on minimum lighting standards within office spaces and residential buildings.
Out of the shadows?
Much guidance, then (and we have not even mentioned the classic and invaluable legal textbooks on the subject), but all of it of limited usefulness compared with the advancement in our understanding and analysis that would flow from a first-rate decision on the subject following a closely contested case in court. We are aware of a High Court case making its way to an expedited trial early in 2025 on the questions of liability and entitlement to injunctive relief (mirroring the trial in Midtown Ltd v City of London Real Property Co Ltd [2005] 1 EGLR 65) following an interim injunction hearing last month; and other cases are in the pipeline for the year ahead. We look forward to the next Beaumont v Florala and some judicial guiding light to penetrate the darkness.
Guy Fetherstonhaugh KC, Elizabeth Fitzgerald and James Tipler are barristers in Falcon Chambers
