Rights of light

Publication | May 2017

Introduction

This is a brief overview of the law relating to rights of light in respect of buildings in England and Wales. To keep this overview as succinct as possible it has been necessary to deal briefly with some points that are in reality quite complex. Specific legal advice should always be obtained as to how the principles set out below apply in any given situation.

What is a right of light?

Many freehold owners and tenants of buildings enjoy a legal right (in the nature of an ‘easement’) to receive a reasonable level of natural light from the sky to the windows in their buildings. Natural light is generally perceived as a desirable quality, particularly in residential premises, and can enhance the value of property.

This right does not however amount to a right to direct sunlight or uninterrupted views, or a right to privacy or protection from being overlooked.

Why are rights of light important in the context of development?

Rights of light can be protected by legal action, including the grant of injunctions to restrain development which infringes a right to light and even an order requiring a completed development to be cut back. This is the case even if the development has been granted planning permission. Alternatively the court can award substantial damages (often based on a percentage of the additional potential development profit that may be generated by the infringement) to compensate for the interference with such rights.

Accordingly developers (and their funders) must ascertain at an early stage whether their schemes may infringe such rights and, if so, factor the potential delay, uncertainty and costs into their development appraisals and programme if necessary.

Acquiring rights to light

There are several ways in which a freehold owner and tenant may acquire a legal right of light to their building over neighbouring land. Such rights can be granted expressly (or by implication) in a transfer or lease or alternatively can accrue over time ‘by prescription’ following 20 years or more enjoyment, pursuant to the Prescription Act 1832 or the common law doctrine of ‘Lost Modern Grant’.

Further, rights of light can transfer automatically from a demolished building to a new replacement building if the position of the windows in the new building is essentially the same as the windows in the demolished building.

Identifying rights of light

In order to ascertain whether or not a particular property enjoys a right to light it is necessary to consider not only the age of the existing building but also determine whether it has replaced an earlier building. A review of the legal title to all of the relevant properties is also needed. This is likely to involve instructing both a specialist rights of light surveyor who can use sophisticated computer modelling programmes to identify what properties may be impacted by a proposed development scheme and an experienced real estate solicitor to review the necessary legal titles.

Potential strategies for developers

If neighbouring buildings have acquired, or are about to acquire, rights to light, developers must consider carefully both when and how to deal with the potential impact of rights of light claims on their proposed scheme and to formulate a clear strategy at an early stage.

In practice such a strategy is likely to include seeking to prevent any neighbouring properties which have not yet accrued rights of light from doing so by service of a ‘light obstruction notice’ and seeking to negotiate formal releases from those enjoying existing rights. In addition early consideration should be given to obtaining a bespoke insurance policy to help mitigate the potential commercial risks. However it should be understood that developers cannot insist that those with rights release them and therefore sensitive and sometimes protracted commercial negotiations are often required to try to achieve releases and substantial premiums may need to be paid.

As a last resort, in the case of substantial development schemes with significant public benefit, it may be possible to request the local planning authority to exercise their statutory power under section 203 of the Housing and Planning Act 2016 to override third party rights, including rights to light, subject to limited compensation. However such powers are rarely used, require a transfer of ownership to the local planning authority, and are only considered after negotiations with the relevant parties have failed.


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David Stevens

David Stevens

London
Greg Rouse

Greg Rouse

London