How To Resolve A ‘Right To Light’ Dispute In Relation To Both Commercial And Residential Property

Introduction

The starting point when it comes to ownership of land is to presume that a landowner owns everything up to the heavens and down to the centre of the earth. Resultantly, a situation can arise where a neighbouring property is built up in very close proximity to an existing property, potentially blocking out natural light.

Fundamentally, a right to light is a legal easement that gives a property owner the right to enjoy the light passing over someone else’s land and through ‘defined apertures’ (typically, windows in the building or skylights). The Right of Lights Act 1959 provides statutory protection to ensure that buildings and homes continue to get access to natural light. If, for example, a new development diminishes the light through that aperture to such an extent that it causes a nuisance, the property owner may have a legal action against the developer.

To put this into perspective, if you go to London and you happen to venture down back alleyways near Chinatown and Covent Garden, you will see signs saying “Ancient Lights” marking individual windows on several properties. These signs serve as a reminder of the importance of natural light in densely populated cities. They also highlight the balance between urban development and the preservation of existing rights and amenities such as ancient rights to light.

This article will explore the right to light, how the right works in practice, and how to resolve a ‘right to light’ dispute without unnecessary hassle and cost.

How can a right of light be established?

There are several methods through which the right to light can be established:

1. If the property has benefitted from access to light for at least 20 years (as per the Prescription Act 1832) (this means that the property has enjoyed a continuous, uninterrupted and unconsented enjoyment of light over this period);
2. By lost modern grant; and/or
3. By reliance on the ancient legal principle of the light having been in existence since time immemorial. According to common law, time immemorial was fixed as the year 1189, which was the year Henry II of England died. This means that any right or custom that has been in existence since that time is considered valid and cannot be challenged.

A right of light is “a right to the light that is required for ordinary purposes”, according to the “ordinary notions of mankind”, as defined by established case law. The test does not relate to what light has been taken away, but whether the light that is left is sufficient to prevent an interference with the enjoyment by the servient owner of its property.

Each case is looked at on its own individual merits given that if the right to light is acquired by prescription, the amount of light acquired is that which is reasonably necessary for the ordinary use of the building.

What principles assist with establishing whether there has been an actionable interference with the right to light?

Over time, the court has established many principles to help assist in determining whether there has been an actionable interference with the right to light. For example, the court will generally not take into account the availability of electric light in the property (although the court did qualify this by stating that in appropriate circumstances the availability of electric light would be taken into account). Additionally, the court has accepted that the “notions of mankind” can change over time.

As a basis of establishing whether there has been an interference to the right of light, for over 100 years the Waldram method has been utilised and this is the principal way of determining whether a right of lights infringement has occurred.

The Waldram method, in its simplicity, evaluates the amount of light directly received from the sky at each point in a room, specifically at table height. If the light at any given point exceeds 0.2% of the total light received from the entire sky dome (which is typically assumed to be 5000 lux on a dull day), that particular area in the room is considered to be illuminated to a minimum of 10 lux. This standard of light is, or at least was, deemed sufficient to pass the test of adequate lighting according to the ordinary notions of mankind.

Recent cases have sought to challenge the Waldram method, although for now it remains the principal test and starting point for considering right of light infringements.

How to avoid a right of light dispute?

If you are a developer, it is important to remember that rights to light could be a key factor in the development’s success or failure. Therefore, it is best to identify and address any issues early on and prepare a strategy to address these issues.

You should also be pro-active in seeking specialist advice from architects, designers, and specialist right to light surveyors to assess the potential impact of the development. You may also need to negotiate with neighbouring property owners to address any concerns they may have and implement any design changes agreed with them.

The development should comply with the Right of Lights Act 1959 and other relevant laws and regulations. Therefore, you would be best-served to seek competent legal advice and consult expert surveyors in relation to right to light surveys.

Developers can mitigate the risk of neighbouring properties from obtaining rights of light by serving a light obstruction notice (LON) and can also negotiate formal releases from neighbouring properties who have already acquired a right to light. Additionally, a special insurance policy can usually be taken out by developers for rights to light.

What is a light obstruction notice (LON)?

If a property has been enjoying access to light for less than 20 years, it may be possible to prevent the establishment of the easement by the developer serving a LON (if this is correctly served, the correct legal procedures are followed, and relevant time constraints are adhered to).

If you have been served with a LON, it is imperative that you seek prompt competent legal advice as soon as possible. You will need to register any objections to the LON as soon as possible and if you are an affected party (i.e., the property owner served with the LON) and you do not register any challenge to the LON within a period of one year, then your right to light will be considered void.

Conclusion

The right to light is an intricate and complex area of law which may very soon be overhauled by Parliament. The entitlement of property owners to maintain access to natural light in their premises, and the requirements of developers to build new properties, thereby promoting development, is delicately balanced. This equilibrium is crucial.

The Waldram method, despite its challenges, remains the key test for right to light infringements. It ensures sufficient light for a building’s ordinary use by assessing the light received by the property at each point in a room.

Developers must proactively address potential right to light issues. This includes seeking expert advice, negotiating with neighbours, complying with laws, and serving a Light Obstruction Notice (LON) to prevent neighbours from obtaining the right to light (if possible). If served with a LON, property owners should take prompt and proactive action.

How we can help

Whether you are a property owner affected by a right to light dispute or development proposal that may affect your right to light, or if you are a developer who requires specialist legal advice in relation to right to light issues and any disputes that may have arisen with neighbouring property owners, we would be more than happy to assist, advise and guide you to resolve the matter to a satisfactory resolution.

We will always look at engaging suitable ADR methods if appropriate, as alternatives to court proceedings – but we can deal with these, of course, if necessary. As always, we will ensure that your matter is dealt with efficiently, diligently and effectively.

This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited.