Natural light is particularly important for building users’ wellbeing – who wants to live or work in a windowless room?
The law, therefore, has to balance the right to enjoy natural light with the finite amount of space in the built environment (and need for new development and refurbishment).
The planning system provides some protection (but not rights) for the impact of development on existing buildings, primarily through consideration of the Building Research Establishment’s Site layout planning for daylight and sunlight: A guide to good practice.
Some property owners, however, have a legal right (via an easement) to enjoy natural light (rather than direct sunlight) passing over another property or piece of land into “defined apertures”, such as windows or skylights. An easement, in simple terms, is a right that benefits a property (dominant land) and burdens another (servient land).
The amount of natural light entering defined apertures is, of course, affected by the proximity of other buildings and structures. In essence, therefore, this is a right to prevent the owner of the adjoining land from obstructing the passage of natural light into another property.
How rights of light work
Rights of light arise in one of three ways: common law, adverse possession or under the Prescription Act 1832 (being the most common). There is, therefore, no automatic right of light.
The right under the 1832 Act relates to where there is “uninterrupted use of something over someone else’s land for 20 years without consent, openly and without threat, and without interruption for more than a year”.
Thus, if a property or land owner wants to construct a new building or extend an existing building, they need to consider if they will be infringing another owner’s rights of light.
When considering if a right to light has been infringed, two key issues need to be considered:
- Does a right to light exist?
- Does the development interfere unreasonably with the enjoyment of this right of light? (Which means, essentially, will a nuisance be caused?)
If demonstrated, then the injured party can seek an injunction (to prevent construction or remedy works already carried out) or damages (to compensate for the loss as a result of the development). However, most cases are settled by negotiation rather than by the courts.
The Rights of Light Act 1959 allows a property or landowner to prevent a neighbouring owner from acquiring a right of light over their land, via a light obstruction notice, without actually constructing a new building (ie, the obstruction is notional, not physical or real). The LON is valid for one year after being registered at the Land Registry, as a local land charge.
The new professional standard
The Royal Institution of Chartered Surveyors’ new professional standard, Rights of Light England and Wales (3rd Edition, March 2024) sets out best practice for rights of light surveyors. A few of the key points are outlined below:
- RICS members dealing with rights of light instructions must act with “due skill, care and diligence and with proper regard to the technical standards required of them”.
- RICS members should check for conflicts of interest before accepting rights of light instructions (as with any professional work).
- If appointed as an expert witness, the RICS member has an overriding duty to the tribunal or court, rather than their client.
Surveyors may be asked to advise on rights of light in a variety of circumstances, including:
- Advising on the impact of a potential infringement of a right of light.
- Advising a developer on a new scheme which may affect rights of light afforded to neighbouring properties.
- Advising on compensation (damages) where a right of light has been infringed.
- Acting as an expert witness in a court scenario.
- Advising an owner on preserving future development potential and/or rights of light that may exist.
The professional standard provides guidance on various areas of rights of light instructions, including:
- Establishing the client’s brief.
- Recording the client’s instructions, for example using the RICS scope of services document for neighbourly matters.
- Due diligence and further research, including reviewing 2D drawings and 3D models, aerial photography and other data sources.
- Considering the position of the dominant owner and the servient owner.
- Considering Part 36 offers (under the Civil Procedure Rules) if compensation may be payable.
- Relevant caselaw (of which there is plenty!).
- Measurement of the properties involved using a variety of geospatial instruments, eg GNSS, total station, CAD and aerial imagery.
- Reporting.
- Modelling and technical analysis.
- Method of assessment, eg using Waldram Diagrams, Sky Factor Extension, the 50:50 rule and understanding the term “adequately lit”.
- Valuation of compensation and four categories of loss.
- Rights of light agreements.
- Insurance.
- Litigation and alternative dispute resolution, such as mediation and the RICS Neighbour Disputes Service.
Finally, the RICS has developed a new Rights of Light pathway and guidance for candidates, which can be found on the RICS website. There is also an accompanying Consumer Guide: Right to Light of which candidates should be aware.
The professional view: Natasha Bray
It was a pleasure to be part of the team reviewing and updating the RICS professional standard for rights of light. This is an important document for all professionals in the industry to be aware of and particularly for those at the beginning of their journey. It provides some helpful guidance on the baseline information needed throughout roles in the rights of light world, as well as some lesser discussed topics, such as alternative dispute resolution options, that certainly should enter our discussions far more often than they currently do. I would strongly encourage everyone either operating or indirectly involved in the field to take the time to read through the professional standard. Whether you are new to the topic or not, there may be something in there to get you thinking or remind you of something you haven’t come across in a while. As with all standards and technical guidance, the more informed and knowledgeable surveyors are, the more protected clients will be, particularly in this fast-evolving built environment. Alongside all of this we have the Light Knights network, the industry’s only dedicated professional collective on the topic. The events, that are run three times a year, are there to bring the industry together and to showcase and assist in understanding changes such as this. The next event is on 19 July. We look forward to seeing you all there to discuss this further.
Natasha Bray is a partner and head of daylight/sunlight and rights to light at Rapleys
Jen Lemen BSc (Hons) FRICS is a co-founder and partner of Property Elite
