Rights of Light: Key considerations for developers

For developers, particularly those working in urban areas, rights to light can be an unwelcome complication and may be one of the biggest impediments (alongside restrictive covenants) to the viability of any development project.  An adjoining owner’s ability to delay, or even block, a development because of the impact of the development on their natural light can, according to B P Collins’ property disputes team, put project timetables and investment returns at serious risk.

Despite last year’s High Court decision in Cooper v Ludgate House Ltd [where an injunction requiring the defendant to demolish substantial parts of its development was refused in lieu of awarding damages (the claimants were awarded damages of £350,000 and £500,000 respectively) rights of light cannot be ignored and careful planning in advance of breaking ground is essential.

What is a right of light?

A right of light is a legal easement that entitles an adjoining property owner to receive a certain amount of natural light through defined apertures (usually windows) across a neighbour’s land.  If your development blocks, or substantially interferes with, that light to the extent that the space is no longer adequately lit for its ordinary use, the adjoining owner may have a claim – seeking an injunction to prevent the further construction of development or its removal/demolition or, in line with the string of recent cases, compensation for the loss of light.

Rights of light can arise through:

• Express grant – typically granted during a transfer or lease where the seller or landlord reserves the right;

• Prescription – most commonly under the Prescription Act 1832, where a building has enjoyed the uninterrupted use of natural light through a defined aperture for 20 years or more without consent, permission or written agreement; or

• Implied rights – possible on the grant of a lease or transfer of land where a right to light is necessary to give effect to the parties’ intentions, though this route is uncommon in practice.

Is the right of light being interfered with?

Where a right of light has been established, action may be taken by an adjoining owner where there is an interference with that light.  

• The mere interference with the light, or the fact that there is not as much light as before because of the development, is not enough – the interference by the development must amount to a nuisance.

• The owner of a right of light does not have a right to all the light entering their building.  The test is whether the reduction to light caused by the obstruction (the development) makes the adjoining building less fit than it was before for the purpose of that building (i.e. operating a business or residential occupation) according to the ‘ordinary notions of mankind’.  

• The amount of light to which the adjoining owner is entitled is that appropriate to the normal use of the owner’s building.  The issue of whether the development will infringe that right is determined by what light remains, not the amount of light that has been taken away.  The standards will therefore be different for a house and office, shop or factory.

• The right of light can only be claimed for a window or other aperture in a building.

Why it matters to developers

Disputes often arise when a development is proposed, the consequence of which – often due to the height of the development – could be the interference with the adjoining property owner’s light.  Regardless of whether the development is at its conception or already well underway, a right of light claim can stall, reshape or even stop the development.

The remedy to the adjoining owner typically involves seeking an injunction to prevent or remove the interference, or a claim for damages in lieu of an injunction.

1. Injunctive relief: In the most serious cases, the court can order work to stop or even require the demolition of the development already constructed.

2. Damages: Whilst perhaps considered the lesser evil to an injunction stopping further works, the cost of having to pay compensation to adjoining owners could put the financial viability of the development in jeopardy.

Although there has been a recent trend towards commercial settlements and the court awarding damages in lieu of injunction (reflecting the wider public interest in development), rights of light need to be at the forefront of developers’ minds when they are managing risk to ensure development projects are kept on track.  A right of light claim will, invariably, cause delay and additional costs.  The outcome in the Cooper case should not be read as a licence to proceed in disregard of rights of light. The court’s discretion to award damages in lieu of an injunction is fact-sensitive, the damages awarded can still be very substantial, and the risk of injunctive relief – including mandatory demolition – in an appropriate case remains real.  Even the threat of a dispute can stall funding, planning, and delivery of the project on time.

Practical steps for developers

1. Assess early: Check that a right of light actually exists and whether there will be a substantial interference with that right caused by the development.
2. Light Obstruction Notice: Where a neighbouring building has not yet been standing for 20 years, the developer should also consider registering a light obstruction notice under the Rights of Light Act 1959.  Once registered as a local land charge and notified, a light obstruction notice is treated as if an opaque screen had been erected across the relevant aperture for one year, interrupting the prescriptive period and resetting the clock.  This is one of the most cost-effective tools available for preventing a right of light claim from arising in the first place.
3. Commission expert surveys: Specialist surveyors can model likely impacts and exposure.  The cost of the surveys will be substantially less than the cost of fighting a right of light claim after construction has already started.
4. Planning: Rights of light should be considered during the site feasibility stage, especially before planning is granted.  In addition to the cost and upheaval involved in modifying a building because of a right of light issue, if not dealt with before planning is granted, the final building ultimately constructed may not be that for which planning consent was obtained and the local authority will be under no obligation to grant consent for the modified building.  A key point that is sometimes overlooked: the grant of planning permission does not extinguish, override or diminish any private right of light that a neighbouring owner may have. Planning permission operates entirely independently of private property rights, and a developer who proceeds in reliance on planning permission without addressing rights of light issues does so at its own risk.
5. Section 203 of the Housing and Planning Act 2016: Developers should consider seeking to obtain protection for their developments under section 203, which can override rights of light, thereby eliminating the risk of injunctions and potentially decreasing the amount of compensation payable to adjoining owners.  Section 203 is not, however, available to all developers in all circumstances: the power is tied to certain authorities — including local authorities, development corporations and others with compulsory purchase powers — and the purposes for which the land is being developed.
6. Explore insurance: Whilst a specialist market, cover can be obtained to unlock funding and provide certainty against unforeseen claims.  Policies can cover damages, legal costs and even the risk of injunctions.  Lenders often require evidence of right of light cover before releasing funds in urban developments.
7. Engage neighbours: Proactive communication (only after insurance options have been explored and, assuming insurance has been obtained, the insurer’s consent to make such an approach has been granted) can reduce resistance and open the door to negotiated settlements.  Any developer who proceeds with a development without first securing appropriate agreements with neighbours concerning rights of light, does so at its peril – it is unsafe to ignore any protests and carry on regardless.
8. Settlement: If there is an unavoidable interference, is that interference capable of being exchanged for monetary compensation or some other benefit?  If terms can be agreed with neighbours, the terms of any settlement must be recorded in a deed. 

Right of light issues can have a serious impact on the feasibility and, ultimately, the successful completion of any prospective development if not explored and addressed.  B P Collins’ specialist teams advise both developers and property owners on how to manage these risks at the outset of any prospective development, resolve conflicts if they arise and help bring projects to fruition.  

The property disputes team wants to get to the heart of the issue, understanding the objective and managing the dispute to analyse the risks and achieve a resolution as swiftly, efficiently and as cost effectively as possible.  The team’s ethos is simple: solve the problem.  To contact the team for further information and advice please email enquiries@bpcollins.co.uk or call 01753 889995.