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.
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.
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.
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