Rights to Light – Illuminating the Dark Art
The law of rights to light is complex and often misunderstood. It has also come under increasing criticism for failing to strike an equitable balance between the interests of property owners and those of developers. The Law Commission has taken this on board and will shortly begin a review of the law in this area. This will be an in-depth and lengthy process, the first stage of which will be publication of a consultation paper in early 2013. The Law Commission is inviting suggestions on what areas to include in the consultation paper which could ultimately lead to a recommendation being made to Government in 2015.
What is a right to light?
A right to light is an easement entitling a landowner to receive light through defined openings in buildings on their land. Adjoining landowners cannot interfere with that right by building a structure on their own land which blocks the light – unless of course their neighbours have given consent. The right is invaluable in giving certainty that light will continue to be enjoyed by a property but also can be a significant impediment to development.
How is the right created and who can benefit?
A right to light can arise by express grant or, more usually, by prescription if it can be demonstrated that the apertures in a property have enjoyed uninterrupted access of light for at least 20 years. The right can be acquired by the freeholder of the property that enjoys the right and acquired by or passed down to the freeholder’s lessees. This can even include periodic tenants and tenants on short leases who haven’t necessarily enjoyed the right for 20 years.
Rights to light can also be retained by new buildings if apertures in them have access to light that was enjoyed by the building previously on the site.
How is the right affected?
If it is established that a site is subject to a right in favour of an adjoining property, any development on that site that deprives the access of light to the other property so as to render it “uncomfortable in the ordinary ideas of mankind” will be an interference with that right.
Rights to light surveyors use what is known as Waldram analysis to calculate whether that has been established. If the analysis shows that the area of a room that receives at least 0.2% of the total illumination received from the sky is reduced to less than 50% as a result of the development then there is likely to be grounds for a claim. This is often referred to as the “50:50 rule”.
Remedies for interference
If an infringement with a right is established (an “injury”) the person with the benefit of the right may be entitled to an injunction or damages.
Injunctions may be available either before (to halt development that would cause an injury), during or after completion of a development (to require the development to be cut back to remove the injury or even taken down altogether) with potentially drastic consequences for developers.
If damages are the appropriate remedy then they are likely to amount to what the Courts consider the parties would have negotiated in the open market to release an injunctable right. This will be a share of the developer’s profit. In a recent casea 30/70 split of profit between right owner and developer was held to “feel right”.
A local authority can acquire rights to light under its compulsory purchase powers where their existence might jeopardise a development that is in the public interest. However, local authorities are only likely to compulsorily purchase such rights for a developer if a CPO is required for a wider site assembly scheme. It is also a protracted process requiring a public inquiry and the involvement of the secretary of state.
A quicker and popular method of establishing certainty on to rights to light is for local authorities to use their powers under s237 of the Town and Country Planning Act. This enables them to override rights that burden a site if it has been acquired for planning purposes. This can be difficult to structure as it requires the local authority to acquire an interest in the site (often the freehold with an immediate 999 year lease-back to the developer) and can be seen as quite an aggressive step for them to take.
What could the Law Commission look at? – Some suggestions:
- Making the acquisition of rights more certain – it is often difficult for both developers and property owners and their tenants to establish who has actionable rights. The use of light obstruction notices by developers may help but this is a complex process and often only brings the issue to a head rather than resolving it.
- Measurement of injuries – should the same method be used to measure residential properties and properties used for other purposes?
- Relationship with the planning process – it might give developers and owners more certainty if rights to light themselves (as opposed to daylight/sunlight issues generally) were considered at the planning stage.
- Quantum of damages – is it fair that the damages potentially available to a landowner with an injured right to light are based on a share of the developer’s profit when they haven’t contributed anything else to the development? They are not calculated on this basis if the developer can persuade a local authority to use its powers to compulsorily acquire the rights.
- Availability of injunctions – is it proportionate for a landowner to have the ability to compel a developer to cut back or tear down its development to preserve a right?
Until the Law Commission has concluded its work we will have to deal with the law as it stands. If you are a developer considering a site where there are other buildings nearby or a property owner or an occupier who may be affected by a neighbour’s proposals, we can assist. We also welcome any comments or suggestions you may have for the Law Commission review and shall be happy to pass them on.
Jason Tann, Partner
Commercial Real Estate
email [email protected]
tel +44 (0)20 7591 3354