Let there be light - Rights to light and The Law Commission's recommendations
Rights of light are an important consideration when undertaking development.
This article provides an overview of the current law relating to rights to light, as well as considering the recommendations of the Law Commission, following the publication on 4 December 2014 of their report on suggested reform of the current law relating to such rights, the primary aim of which was:
- to strike a balance between the opposing interests of the developer of land subject to a right to light and the adjoining landowner as beneficiary of such right; and
- to stop landowners from stonewalling and using delay tactics to force up the price demanded from a developer to secure the release of the right to light.
- A right of light is an easement granting a right to enjoy sufficient natural light across a third party’s land for the benefit of other land;
- The right of light must benefit particular ‘appertures’ i.e. windows, skylights etc. and in doing so must allow that property or land to be used for its normal purpose. The latter requirement means that each case will be determined on the individual circumstances. For example, whilst a storage facility may not require substantial natural light, a property used as offices or a shop would require more; and
- The infringement must amount to a legal nuisance. There is no right to a particular view, nor to direct sunlight as this would not satisfy such a requirement.
The ways in which a right of light can be acquired are varied and include:
- The express grant of such a right. In practice an actual grant of a right of light is rare but they are commonly found as reservations in favour of land retained by the seller on a sale or in favour of a landlord's adjoining property on the grant of a lease. A reservation is effectively treated in the same way as a grant;
- Certain statutes prescribe such rights;
- The implied grant of the right – the essential characteristic here is that a party cannot dispose of a piece of land without the necessary means of enjoying the use of such land and it was the intention of the parties at the time of the sale and purchase to include such rights; and
- Acquisition over a period of time by the doctrine of Prescription (long use). This method only applies to a party owning the freehold interest in the land and will not benefit a leaseholder. The right must have been in use for a continuous period and not have been the subject of a written consent.
Broadly, rights to light can be extinguished, suspended or their acquisition defeated in the following ways:
- Where the land with the benefit of the right and the land which is subject to the right are owned by the same party;
- Where there has been a physical blocking of the right – for example the aperture which benefits from the right of light has been boarded up or covered in some way. Additionally a change in the position of the relevant aperture can defeat the right;
- By service of a light obstruction notice under the Rights of Light Act 1959 – this is a statutory method requiring registration of a notional obstruction and requires a court order from the Lands Tribunal; and
- “Custom of London” – there are certain special rules which apply to properties within the boundary of the City of London.
It is important to note that the identification and measure of rights to light (or their infringement) will require the commissioning of a right to light report from a surveyor or other expert in this field.
The alternative remedies available to a party where a Right to Light has been obstructed are:
- an injunction requiring the cause of such breach to be rectified (where appropriate). This is quite a draconian measure requiring the development to cease; or
- damages in lieu of an injunction, where this is a sufficient remedy for the claimant. Damages will be based on either the diminution in the value of the land as a result of the infringement; or a share of the developer’s gain in proceeding with the construction of the development.
On 4 December 2014 the Law Commission published its final report, Rights to Light (Law Com No 356) and draft Right to Light (Injunctions) Bill, setting out its recommendations on the reform of this area of law. Currently, these are recommendations only and the Government will need to implement them.
The key recommendations in the report are:
- A statutory notice procedure to allow landowners to require neighbouring landowners to inform them, within a specified time, if they intend to seek an injunction to protect their right to light and halt development. Failure to do so would mean that damages would be the only remedy available. They also recommend that the test should be clarified as to when a damages order should be given as opposed to an injunction stopping development;
- The existing requirements and procedures for obtaining a right to light by Prescription are complicated and at times contrary and the Law Commission considered abolition of this method. Instead they have recommended that the existing complexities involved in the process of acquiring a prescriptive right to light be simplified into a single statutory method requiring 20 years qualifying use;
- Amending the law governing where an unused right to light is treated as abandoned;
- That the process for obtaining a light obstruction notice from the Lands Tribunal be streamlined; and
- A power for the Lands Tribunal to cancel or amend unused rights to light.
Posted on 01/07/2015 by Ortolan