Rights to light are legal easements that protect the enjoyment of natural light by neighbouring buildings. A successful right to light claim may result in an order for the demolition of a development, or compensation.
It is surprisingly common for schemes to progress through the design, drawing and tendering phases without anyone considering legal rights to light issues. This is a significant risk for developers.
Defining the Issue
In England and Wales a ‘right to light’ gives landowners the legal right to receive natural light through defined apertures (such as windows) in buildings on their own land. A developer cannot disrupt a neighbour’s rights to light without their consent, according to Blackacre Chartered Surveyors. When a development infringes upon these rights, the owner of the affected property can take legal action. This could involve an injunction preventing the building from being erected or even demolition, or compensation for the loss of the light.
Disputes over rights to light can be complex and expensive, so developers often take out a rights of light insurance policy in order to mitigate the cost and risk. However, the recent rise in claims has seen this insurance premium increase significantly and is causing some to reconsider their options.
For a city as famous for its landmarks as London, it is surprising that the historic character of some areas has been lost through inappropriate development. This is partly down to the fact that there are a limited number of large sites in central London which are suitable for new developments. However, it is also a result of poor planning and development practices.
One way to avoid a rights of light dispute is for the council to acquire the freehold of a building and use its powers under section 203 of the Housing and Planning Act 2016. This allows the local authority to override easements such as a right of light, stopping the neighbour from seeking an injunction or requiring the developer to pay compensation. However, this method is controversial as it can have significant implications for the community and may be perceived as an attempt to privatise the public’s assets.
In addition, it is important to ensure that there is a balanced mix of tenure across London. This can be achieved through incremental small scale as well as larger scale developments which foster social diversity and redress concentrations of deprivation. This can be supported by allocation policies, tenancy strategies and homelessness strategies.
Defining the Beneficiary
Many freehold owners and tenants of buildings enjoy a legal right to receive a reasonable level of natural light into windows and other openings in their property. It is not generally possible for another landowner to interrupt those rights unless the infringement can be shown to be ‘unreasonable’ or ‘disproportionate’. The law protects such rights, and can allow legal action resulting in injunctions to restrain infringements or even order that a building must be demolished if the infringement cannot be remedied by structural change.
As a result, it is important for developers to consider whether their proposed scheme may infringe rights to light and, where relevant, factor any potential risk of injunction or damages claim into their planning balance. The RoL Protocol encourages a developer to identify any such issues at an early stage by providing the adjoining owner’s surveyor with the details of the proposed development, arranging an inspection (and ideally a joint inspection) and sharing with the neighbour a copy of the technical loss of light analysis that will be prepared by the expert surveyor for the developer.
This process can also be aided by the use of a ‘light obstruction notice’ under the Rights of Light Act 1959. This creates a notional interruption of the right and registers it as a local land charge for one year, allowing affected parties to object to the notional obstruction and potentially seek compensation.
Nevertheless, identifying where a potential rights of light dispute is likely to arise requires the services of not only a specialist rights of light surveyor but an experienced real estate solicitor who can review the legal titles for the adjoining properties. Often it will be necessary to examine both the history of the property and the location of the ‘windows’ in the adjoining buildings to ascertain what rights are likely to have been acquired by prescription (i.e. long use) or vested by acquisition.
In the case of disputes that are likely to be costly or time consuming to resolve, consideration can be given to obtaining a bespoke rights of light insurance policy. Such policies are often required by lenders and incoming purchasers as part of the due diligence process and can save both time and money in the longer term by helping to identify issues early and facilitate a speedy resolution to the dispute.
Defining the Dispute
Rights to light provide a guarantee that natural light will continue to enter a property – increasing its utility, value and amenity. They can enable landowners to prevent construction that interferes with them, or even to have a building demolished under certain circumstances. Landowners may also be awarded substantial compensation for any loss of light suffered.
It is possible to avoid a dispute arising over rights of light by taking steps during the planning process. The RoL Protocol suggests that developers should contact adjoining landowners early and explain the proposed development, seeking access for surveys to assess any potential infringement. This is particularly important where the proposed development is a listed or protected structure.
If a developer anticipates that its proposed development will infringe the neighbouring owner’s rights to light, it is often worth considering obtaining a rights of light insurance policy. These policies mitigate the cost and risk of a neighbouring owner seeking an injunction to stop (or, in extreme cases, destroy) a development which materially interferes with their rights to light.
The RoL Protocol recommends that parties consider the use of mediation, arbitration, expert determination or an early neutral valuation as alternatives to traditional litigation involving the courts. This approach is likely to be quicker and cheaper than litigation and may help to settle the dispute.
It is also hoped that the introduction of the protocol will encourage the devolved institutions to recognise the importance of human rights and prevent them from legislating in a way which is incompatible with international law. This will be crucial to ensuring that their policy proposals respect fundamental civil liberties.
In order to safeguard projects against the risks of rights of light disputes, Marsh Commercial can arrange legal indemnity insurance which offers financial protection against claims relating to any infringement on these rights during the construction period. This can protect you against costs and compensation resulting from the infringement of rights to light during your project, allowing you to focus on delivering your project on time and within budget. To learn more, get in touch with a specialist adviser today.
Defining the Remedies
Many freehold owners of buildings enjoy a legal right (in the form of an easement) to receive natural light through defined apertures in their buildings, such as windows. This is a desirable feature that enhances the value of properties and must be protected. Owners of land burdened by such rights cannot substantially interfere with them – for example, build a structure that blocks the light – without their neighbour’s consent.
As a consequence of the increasing commercial activity in London, and of growing social divisions, the city became more clearly differentiated from area to area in terms of housing and household incomes. As the research project ‘People in Place’ has shown, differences developed both within and between contrasting study areas of the city as well as across the wider urban area.
The expansion of the city and its suburbs continued apace during the nineteenth century. A large number of major works transformed the appearance of the streets and the buildings within them, from constructing the Metropolitan Line to replacing tollgates with new Thames bridges and rebuilding the older ones at Battersea, Westminster and Blackfriars.
Increasingly, people moved out of the central zone to suburbs and commuted in for work, shopping, education and leisure. As a result, suburban communities developed with their own distinct characteristics, shaped by local customs and traditions as much as by the physical environment.
During the nineteenth century, a growing sense of national and international responsibility for urbanisation and public works allowed a greater degree of planning control to be exercised. In 1888 a County of London was formed, bringing together the old city and 28 metropolitan boroughs into one autonomous territorial unit, ruled by a single authority. This allowed development to progress at a faster pace, which was to continue after World War I.
The law on rights of light is complicated and difficult, and the remedies available are largely limited to injunctions. It is not possible to modify rights of light except by the agreement of the parties concerned, but the Law Commission has recommended that this is an area where reform is required. In addition, it is possible for local authorities to use their powers under s.203 of the Housing and Planning Act 2016 to override third party rights, including rights of light, for significant developments of public benefit. However, this route is rarely taken and can involve substantial compensation payments to the affected party.