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Shedding some light on rights to light

Print publication

03/06/2015

The Law Commission’s final report on rights to light was published at the end of last year. The report, which reviewed the issues that rights to light disputes cause developers and landowners alike, attempted to address the imbalances in the law and the lack of transparency that currently arises in rights to light cases. The Law Commission’s aim was to balance the competing interests of developers and landowners, and to discourage beneficiaries of rights to light from using delaying tactics and silence to coerce increased payments from developers in return for giving up their rights.

What is a right to light and how can it be acquired?
A right to light provides the beneficiary with the right to enjoy the natural light that passes over a third party’s land and enters their property through defined apertures in a building. Once acquired, the right entitles the beneficiary to receive sufficient natural light to allow the space behind the aperture to be used for its ordinary purpose. As a result of the particular nature of rights to light, there is no right of light in respect of land that has not been built upon nor is there a right to direct sunlight (as the right entitles the beneficiary only to sufficient light for natural illumination not to direct rays from the sun).

Rights to light can be acquired in substantially the same manner as other easements namely:

  • by express grant or reservation;
  • by statute;
  • by implied grant; and
  • by prescription (i.e. long user).

In practice, rights to light are generally established in accordance with rules set out in the Prescription Act 1832. These rules differ somewhat from those for other easements and require the right to be enjoyed without interruption for a period of at least 20 years, without written consent (albeit oral consent does not necessarily constitute a bar to establishing a right) and without the use having to be as of right.

Despite initial indications that the Law Commission was going to recommend the abolition of prescriptive acquisition of rights to light it has refrained from doing so. It has however made a number of proposals with a view to making the process of acquiring a right to light more straightforward. In summary, the Law Commission has recommended the replacement of the existing methods of prescriptive acquisition by one statutory method identical to all other easements and based on 20 years’ qualifying use.

Preventing or defeating a right to light
The acquisition of a right to light can be defeated, or an existing right suspended or extinguished in a number of ways including unity of ownership of the benefitted and burdened land, agreement of the parties, light obstruction notices and abandonment. Of these, the Law Commission has proposed amendments to the procedure for light obstruction notices, the law governing when an unused right is to be treated as abandoned and the introduction of powers for the Upper Tribunal (Lands Chamber) to discharge or modify obsolete rights to light.

The Rights of Light Act 1959 (ROLA 1959) provides a method for interrupting a right to light without the requirement for a physical obstruction. Under the procedure in ROLA 1959 a notice creates a notional obstruction which is registered as a local land charge. These notices are known as light obstruction notices. However, before an application can be made to register the local land charge the owner of the burdened land must obtain a certificate from the Upper Tribunal (Lands Chamber) whose role it is to determine what steps must be taken to inform other people with an interest in the building about the proposed registration and to issue the certificate if it believes that sufficient publicity has been given. The Law Commission believes that the current procedure for light obstruction notices is unwieldy, slow and expensive. In an attempt to make the process more efficient the Law Commission has recommended a new system of registration for landowners to prevent the acquisition of a prescriptive right to light over their land. This would permit a certificate of light interruption to be registered as a local land charge and would mean that ROLA 1959 would be repealed. Only a freeholder, tenant with more than seven years of their lease remaining or a mortgagee in possession would have the ability to register a certificate of light interruption.

A right to light can be brought to an end by abandonment; however, this is difficult to prove as it requires evidence that the owner of the benefitted land had the intention never to assert their right to light (or transfer it to someone else) at any time in the future. The cessation of use of the right is, of itself, not sufficient to prove abandonment. An intention to abandon the right must also be demonstrated. This requires the blocking up of the aperture through which the light enters in some way.

The Law Commission has previously suggested [1] that if an easement had not been used for 20 years then such non-use would be sufficient evidence of an intention to abandon the right. It has now proposed that this principle should also apply to rights to light but that the period would be only five years. The Law Commission believes that if a window has been blocked up or a building demolished it is difficult to argue that there is an intention that the right should continue once even a short period has passed, hence the much shorter period of non-use than for other easements.

At present it is not possible, save by agreement of the parties involved, for a right to light to be modified. The Upper Tribunal (Lands Chamber) only has jurisdiction to modify or discharge restrictive covenants in limited circumstances, generally involving situations where the covenant is obsolete or does not serve any useful purpose due to changed circumstances. In its earlier report [2] the Law Commission recommended that it would be possible to discharge or modify easements created after its proposed Easements Bill. Such modification or discharge would require an application to the Upper Tribunal (Lands Chamber) and the circumstances in which such orders would be granted would be limited. Having reconsidered this point as part of its work on rights to light, the Law Commission has now recommended that all easements, including rights to light, regardless of their date of creation should be open to modification or discharge.

Damages – an adequate remedy?
If a right to light is infringed, the owner is permitted to apply for an injunction against the person interfering with the right. The courts, however, have discretion to award damages in lieu of an injunction. Recent case law [3] highlighted the court’s considerations when deciding whether to grant an injunction or award damages and confirmed that an injunction could be granted despite a development having been completed and let even though the owner of the right to light had failed to take steps to prevent the development during its construction and the developer had attempted to negotiate with the owner.

The Law Commission has recommended two changes to the law concerning rights to light disputes (and potential disputes). First, a statutory notice procedure (a Notice of Proposed Obstruction) to allow landowners to ascertain, within a set period of time, whether their neighbours intend to seek an injunction to protect their rights, or lose the ability to call for that remedy. Secondly, a statutory test to clarify when the court may award damages rather than halting a development or requiring its demolition. This test takes into account the Supreme Court’s decision in Coventry and others v Lawrence and another (No 2) [4] in which Lord Neuberger suggested a more flexible approach be taken when considering whether damages should be awarded. It is proposed that the court should not grant an injunction to prevent the infringement of a right to light if to do so would be a disproportionate means of enforcing the breach, taking into account not only the claimant’s interest in the benefitted land, the loss of amenity arising from the infringement and whether the loss could be adequately compensated by an award of damages. The courts would also be required to consider the conduct of the claimant and whether they had delayed in seeking an injunction, the conduct of the defendant and the impact that an injunction would have on them and finally the public interest.

WM Comment
The changes proposed by the Law Commission constitute a welcome step towards clarifying this contentious area of law. The proposed statutory test as to whether to grant an injunction acknowledges that there may be other relevant considerations, for example the public benefit of a development, over and above the interest of the parties involved in the dispute. It is hoped that increased transparency and engagement between parties at an early stage could aid in reducing disputes or settling those that do arise at an early stage. Only time will tell however whether the proposals will be adopted.

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[1] Law Commission: Making Land Work: Easements, Covenants and Profits a Prendre (8 June 2011)
[2] ibid.
[3] HKRUK II (CHC) Ltd v Heaney [2010] EWHC 245 (Ch)
[4] 2014 UKSC 46