Rights to Light

Rights to light issues are arising ever more frequently given the increasing density of London and are therefore becoming of greater concern to developers.

What is a Right to Light?

A right to light is not to be confused with the right to direct sunlight, which is a planning issue. A right to light is the right for sufficient natural illumination and is essentially an easement which entitles the owner of one property (the dominant land) to direct light passing over the neighbouring property (the servient land).

The nature of the right depends on the way in which the right was created. If, for example, the right to light was created by a grant, one would look to the deed granting the right, whereas where a right has arisen by prescription, you would need to consider the facts of the case itself and the relevant case law.

In this article, I will be focussing on rights to light arising by prescription as this the most common way in which the right arises.

The Prescription Act 1832 provides that a right to light arises once it has been enjoyed by a building for an uninterrupted period of 20 years, without consent. However, there is a further requirement, in that the right is limited to the light passing through apertures in the dominant building. Whilst apertures are usually windows, they can include glass roofs and skylights and therefore these should not be overlooked when investigating whether a right to light exists.

In practical terms, this means that there can be no right to light by prescription in favour of open land. Therefore, if a developer intends to purchase a field to build high end homes, it should be aware that unless there is an express grant of a right to light, there is no restriction on how the neighbouring owner uses or develops its own land and this could have an adverse impact on the value of the proposed high-end homes.

Conversely, the developer should also consider what rights to light exist in favour of the neighbouring land that may be impacted by the development.

How much light is the dominant property entitled to?

There is a common misconception that if a right to light exists, the light entering the building cannot be diminished by any degree. This is incorrect as a diminution in light does not automatically amount to infringement of the right to light unless a certain test is satisfied.

In Colls v Home and Colonial Stores Limited (1904), it was held that what must be left behind is the quantity of light which is required for the ordinary purposes of inhabitation or business of the tenement according to the ordinary notions of mankind. In a more recent case of Allen v Greenwood (1980), the court held that the dominant owner is entitled to the light required for the beneficial use of the building for any ordinary purpose for which it is adapted. This is therefore a subjective test and depends on the judge’s interpretation of the facts and how much light is required by that building for its ‘ordinary purpose’.

Case law has continued to evolve, and the courts will now also take into account potential future uses of the property. However, this does not mean that the dominant owner can put forward any imaginary use as the courts will require evidence of any such proposed uses.

In addition, the right to light is not dependant on location. This means that it is irrelevant whether a building is in the country or a densely populated city such as London. The amount of light that the building is entitled to is the amount of light the eye needs for ordinary purposes.

For example, in the 2020 case of Beaumont Business Centres Limited v Florala Properties Limited, the court held that, to establish its claim in nuisance, Beaumont needed to prove that the effect of the diminution in light was such that it made the property substantially less comfortable and convenient than before. To prove this Beaumont had to show that the diminution in light would result in a loss of income over the remaining length of its lease in an amount that was more than trifling or de minimis.

Florala, the developer, had tried to argue that as the property was already poorly lit before the development, the interference with the light only resulted in a small amount of loss of income and therefore the interference should not be considered to be substantial. The judge however rejected this argument and decided it was appropriate to grant an injunction ordering Florala to reduce its development. However, as the floors to be demolished were already let and the tenant was not a party to the proceedings, the court gave judgement that Beaumont was entitled to an injunction and to join the tenant to the injunction proceedings but in the alternative Florala was ordered to pay £350,000 damages in lieu of an injunction.

How is the loss of light measured?

Specialist surveyors are usually employed by the parties who use mathematical calculations to determine whether or not a development causes an infringement.

One method, known as the Waldram method, is frequently used. This involves plotting the area of a room that receives adequate light before the proposed infringement and comparing it with the area that will be adequately lit afterwards. Nowadays this is done using computers. The general practice is that if the area that remains adequately lit after the infringement exceeds 50% there is no actionable interference and therefore no claim. This is known as the 50/50 rule. However, the threshold is higher for residential properties where it is generally accepted that 55% of the area should be left with adequate light.

Although the Waldram method was criticised by Florala (and in fact has attracted some criticism at large) the judge did not accept that he should ignore the Waldram tests as ‘they have stood the test of time and have the advantage of giving one some measure of the loss of light’.  As mentioned before, by applying the Waldram method, the court accepted that there was an actionable loss of light and awarded £350,000 in favour of Beaumont.

What remedies are allowed likely to be awarded?

If a right to light is interfered with, that interference amounts to a nuisance and the owner of the dominant land could be entitled to an injunction or damages. The primary remedy is an injunction, although the court does have a discretion to award damages instead. A developer will therefore want to gauge the nature of the remedy that the court is likely to award, should an infringement be proved, as this will assist the developer in deciding whether to negotiate at an early stage of the development or whether to take a risk.

It was thought that obstructing the right light in respect of residential property was likely to result in an injunction whereas for commercial properties, damages was a more usual remedy. However, in 2020 the development and legal worlds were taken by surprise when the judgement in the case of HKRUK II v Heaney was handed down. This case involved two commercial properties and proceedings were actually issued by the servient owner, which is rather unusual, after the development had already been completed. The developer had basically ‘taken a punt’ and subsequently decided to seek a declaration from the court that it had no liability to the dominant owner, Heaney. The general expectation was that the court would award damages should a nuisance be established. However, the court decided to grant an injunction which required the demolition of two of the upper floors of the building. This was despite the fact that:

1. those floors had already been led by the developer;
2. the loss suffered by Heaney could be compensated in money terms; and
3. there had been a lengthy delay by Heaney in seeking that injunction.

In making its decision, the court applied the rule in Shelfer v City of London Electric Lighting Company Limited (1895), which although an old case is still the leading case on the court’s discretion to award damages rather than an injunction.

The Shelfer rule is that damages should be awarded instead of an injunction if:

1. The injury is small;
2. It is capable of being estimated in monetary terms;
3. Is adequately compensated by a small monetary payment; and
4. It would be oppressive to the defendant to grant an injunction.

However, the legal burden is on the defendant to persuade the court that an injunction should not be granted.

In the Heaney case, the court decided that the only limb of the Shelfer rule that was satisfied was that the injury could be estimated in monetary terms. In addition, the court took particular note of the fact that the infringement of Heaney’s rights was not trivial, was not inadvertent, was carried out with a view to profit and could have been avoided.

This turned out to be an extremely costly lesson for the developer.

There has subsequently been some criticism of applying the Shelfer rule too strictly as the court’s discretion to award damages in lieu of an injunction should be fettered. However, at the same time, it is equally important to ensure that there is some guidance on how the discretion should be exercised so as to ensure it is exercised in a consistent manner.