Uncategorized

IBB Solicitors: Give me light!

RLA
Written by RLA

Proposed changes to the law on rights to light are discussed by IBB Solicitors partner Jon Mowbray and trainee solicitor Alexis Ash…Everyone loves natural light and new rules may change the face of your properties…

Proposed changes to the law on rights to light are discussed by IBB Solicitors partner Jon Mowbray and trainee solicitor Alexis Ash…Everyone loves natural light and new rules may change the face of your properties.

Rights to light are a type of easement which give owners the right to receive natural light through defined apertures (such as windows, skylights or glass roofs) in buildings on their land.

Rights to light do not protect the right to direct sun or the right to a view. Similarly, they do not protect privacy or prevent a property from being overlooked.

Their value lies in ensuring that every room in the building continues to receive sufficient natural light to be used for its ordinary purpose – hence a kitchen would require more light than a storage space.

Quality of life

Rights to light, when they are infringed, can have a disproportionately negative impact on both the quality of life of an occupier and the development potential of land.

Infringements can arise without the knowledge of those affected by them, and landowners may be able, by injunction, to prevent a development being built, or even to have a built scheme demolished.

Landowners can also negotiate significant payments for release of the rights.

Court case

In 2010, the case of HKRUK II (CHC) Ltd v Heaney added to the uncertainty around rights to light.

Heaney was an unusual case where the developer brought a claim for a declaration that it was free from any liability to the defendant, despite admitting that it had caused an actionable interference with the access of light to the defendant’s building.

There had been considerable delay on the part of the defendant, who had not issued a claim despite extensive correspondence with the developer.

The court granted the injunction sought by the defendant’s counter-claim. The injunction would have required the developer to partially demolish the two new floors of the building which caused the interference, adding delay and cost to the development. The anticipated development profit was £6.9m, whereas the cost of demolition required by the injunction was around £1.1–£2.5m, plus losses in floor space.

The court also held that if damages had been awarded, they would have been assessed at just £225,000.

The case settled before it reached the Court of Appeal, but the figures illustrate how significant rights to light may be.

Extension problems

More recently, Helen Coughlan, of Redbridge, London, made the news when her neighbour built a two-storey extension with a wall 24 inches from her window, blocking all natural light, damaging her walls and causing subsidence issues.

In this case, and despite the fact that the neighbour was in breach of his planning permission, the council have not ordered demolition of the extension, ruling it “only a loss of light”.

It should be noted that the council’s planning officers do not enforce rights to light, which are a private law matter, and Mrs Coughlan received an out of court settlement of £30,000 plus costs in the civil case she brought against her neighbour.

Damages, not prevention

In March of this year in Coventry v Lawrence, a private nuisance claim, the Supreme Court made a number of comments which suggest that, although previously injunction was the main remedy to restrain infringements of private property rights, damages may come to be the primary remedy.

Property owners wanting to oppose development may be dismayed by this, but should be glad to hear that the measure of damages may not be limited to the diminution in value of the property (which is often small), but to an amount which reflects a reasonable price for a licence to commit the infringement complained of.

Reforms on the way

In 2013, the Law Commission produced a report on rights to light, containing four main proposals which the Commission hoped promoted certainty and transparency, ensured rights to light did not unnecessarily constrain development, and protected the amenity value of the rights. The final report with a draft Bill is expected later this year.

Currently proposed is a new statutory test to clarify when the court could award damages (rather than an injunction), and the introduction of a new statutory notice procedure which would require affected landowners to confirm whether they would apply for an injunction.

The justification for the test lies in a combination of practicality and policy. As pressure for development continues to rise, damages could be awarded where an injunction would be disproportionate when considering loss of amenity, the conduct of the parties, any delay in bringing proceedings, and whether damages would be adequate compensation.

This is in line with the comments made in the Supreme Court.

The notice procedure would remove injunction as a remedy if a property owner fails to respond or issue proceedings within a reasonable time after notification that a proposed development will obstruct his light. Damages would remain available, but the development could proceed free from the threat of delay or demolition.

While developers will be hoping that the economic impact of reform will be enough to persuade the Government to act on the proposals, neighbours must ensure that they take advice and act promptly if they become aware of a development that may infringe the light enjoyed by their property.

See more at IBB Solicitors

About the author

RLA

RLA

The Residential Landlords Association (RLA) represents the interests of landlords in the private rented sector (PRS) across England and Wales. With over 23,000 subscribing members, and an additional 16,000 registered guests who engage regularly with the association, we are the leading voice of private landlords. Combined, they manage almost half a million properties.

3 Comments

  • While it is very well to talk about the right to light .
    In real terms the issue that planning needs to address is how close can a new building be constructed to an existing building .

    This is I feel is the issue planning needs to address .

    Giving that all we see now is blocks of flats towering over existing homes .
    With the complete lack of amenity space . Except for a postage stamp balcony . That not only blocks light but creates a loss or privacy

    There used to be signs on buildings claiming right to light ancient lights
    Does this still apply ?

  • Yet another example of big business tramping on the rights of the individual. Damages are far too low for loss of light and the threat of an injunction makes developers consider more carefully the effect of not fully considering their neighbours.

  • Developers are not just “big business”. A lot of development consists of ordinary people wanting to improve elderly, small or inconvenient homes. The scope of the current law is very wide and very confusing with contradictory judicial decisions, mostly involving commercial developments, and arcane rules.
    It is a great pity the Law Commission has not taken the opportunity to bring the whole matter under statute and add it into the planning regulations. Most home owners are unaware that they have a right to light:equally most one house developers, extending or replacing their homes, are unaware they may be transgressing the law on those rights.

Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.