commercial property 29


A glimmer of light?


Rights of light are never very far away from the public eye.


Paris Smith‘s Mark Withers looks at rights of light and the reforms which the Law Commission may recommend following its consultation process


A number of cases have recently been reported involving developments being stopped and Court orders made for the demolition of completed buildings as a result of litigation based on rights of light. It is perhaps unsurprising that, as reported in the mainstream press, the Government has turned its attention to this area with a view to trying to rebalance the interests of property owners and those seeking to construct new or extend existing buildings.


Rights of light can be encountered in any number of situations. Wherever development involves a property with buildings nearby, consideration needs to be given to whether the rights of light of adjoining landowners will be infringed.


A right of light is a proprietary interest in land and in that respect is no different from an easement (such as a right of way or a right to use a drain). A right of light can be acquired in a number of ways, including express agreement, statute, demonstrating use back to 1189, continuous use for 20 years and by various other obscure means.


The right to receive light is a right to receive sufficient natural illumination from the sky over neighbouring land through defined openings in a building. The right is not one which entitles a property owner to receive 100% or full daylight. The entitlement is intended to enable the interior areas of a building to be used for the ordinary purposes for which that building is or may normally be put. A dwelling will therefore have a different entitlement to an office building. The use of a building therefore impacts directly on the amount of light which a landowner is entitled to and needs to be taken into account when determining whether a development creates an actionable interference with the rights of light of adjoining owners.


Once a right of light has been acquired, an infringement of it (even where the interference is deemed by a rights of light surveyor to be trivial) will entitle an aggrieved party to make an application to Court for an injunction. The fact that planning permission and any other relevant consents have been obtained is irrelevant and an injunction will, if granted, prevent (and


THE BUSINESS MAGAZINE – SOLENT & SOUTH CENTRAL – APRIL 2013


depending on the stage of construction require the demolition of) the offending development.


Neighbours whose rights of light stand to be interfered with by a development are therefore (often much to the surprise of developers), in a powerful position and one from which they can and often do extract financial advantage which is disproportionate to their loss or inconvenience.


Courts have a discretion to make an award of damages (to compensate for the loss suffered as a result of developments allowed to go ahead) instead of granting of an injunction. The Courts however generally seek to protect the rights of property owners (and so grant an injunction preventing development) unless there are compelling and exceptional reasons not to. The Court in reaching its decision will ask whether the light loss is small, is capable of being compensated by a monetary payment, and whether it would be oppressive to a developer in all the circumstances to grant an injunction. As numerous developers have found to their cost, Courts apply these principles rigidly.


The Courts‘ approach of applying rigid principles in determining the remedy to be granted (and often granting injunctions) isn‘t consistent with developing brownfield and city centre sites or for that matter, enabling development to enhance and revitalise inner city areas. This approach clearly needs to be revisited as part of a rebalancing exercise between the interests of property owners, viewed within the context of planning policies and the economic landscape generally.


The Law Commission reviewed easements (the rights to use the property of another) including rights of light in a report and a draft Bill presented to the lord chancellor and secretary of state for justice in 2011.


The report indicated that further work was required on the question of rights of light and a consultation is to be carried out during the course of 2013. The options being


www.businessmag.co.uk


considered include, a damages calculation similar to that used in compulsory purchase, incorporating rights of light as a consideration within the planning system and allowing parties to apply to a judicial authority, such as the Lands Tribunal, for rights of light to be varied so as to allow development to proceed.


An acknowledgement that the loss of rights which Courts have to date largely upheld, can be adequately compensated by a monetary payment is clearly needed and it is to be hoped that the further recommendations of the Law Commission will try and reach a balance between the rights of landowners and the need to lessen the impediment to development which rights of light currently represent.


Details: Mark Withers Partner property 023-8048-2274 mark.withers@parissmith.co.uk


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36