Shedding some light on rights to light: What developers need to know

10th December 2021

Back in 2014, the Law Commission published a final report which proposed reforms to the law of rights to light. 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.

As at August 2021, the Law Commission is still awaiting a response from the government.  Rights to light issues continue to cause uncertainty, and sometimes aggravation, when it comes to progressing developments.

David Manda provides an up-to-date overview of the law of rights to light and offers practical advice for developers.

What is a right to light and how can it be acquired?

A right to light provides the beneficiary with actually a rather limited right to enjoy the natural light that enters its property through defined apertures in a building.  A right to light entitles the beneficiary to receive only 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 to light in respect of land that has not been built upon.  Neither is there a right to direct sunlight; nor to a view.

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
• by prescription (i.e. long user).

Preventing or defeating a right to light

The acquisition of a right to light can be defeated, or an existing right can be 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
• abandonment

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 ROLA 1959, a ‘light obstruction notice’ creates a notional obstruction which is registered as a local land charge. Affected parties then have one year in which to object, which they can do by showing that they have existing rights of light which the notional obstructions infringes.  The process for obtaining and registering light obstruction notices currently remains somewhat cumbersome, but can be beneficial on a number of different levels.

For example, light obstruction notices can be useful to flush out potential objections to a development in advance.  Even more helpfully, they can eliminate possible objectors who fail to respond within the requisite timeframe. This is because, if a neighbour who has acquired prescriptive rights of light by virtue of 20 years’ enjoyment fails to object in time, the right is deemed to have been interrupted and the 20 year clock starts to run from zero again.  Light obstruction notices can also be used tactically, to prevent a building that is nearing 20 years of age from acquiring prescriptive rights of light in the first place.

Extinguishment of a right to light by abandonment can be 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 to transfer it to someone else) at any time in the future. The cessation of use of the right is, of itself, not enough.  Proving intention, never mind proving a negative, is notoriously tricky.  Generally, the blocking up of the aperture through which the light enters would be required.

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) has jurisdiction to modify or discharge restrictive covenants in certain circumstances [1] and the Law Commission has recommended that all easements, including rights to light, should be similarly open to modification or discharge.  This area of potential reform is ‘one to watch’.

Damages – an adequate remedy?

If a right to light is infringed, the beneficiary is permitted to apply for an injunction against the person interfering with the right. In such cases the courts have discretion whether to award an injunction [2], or to award damages in lieu.

Case law over recent years has acknowledged that, whilst an injunction should generally not be awarded where financial damages would be an adequate remedy, in many rights to light scenarios, an injunction will in fact be required to protect and enforce a beneficiary’s rights.  That will often particularly be the case wherever conduct on the part of the [potential] developer (for example in relation to dealings with possible beneficiaries) has been anything less than exemplary.  The courts have indicated, therefore, that they will not shy away from requiring a developer to abandon future development plans or, even worse, to demolish existing development, where there is a right to light infringement.

For more detailed legal and practical advice on right to light injunctions, please see our articles: Mandatory injunction issued in right to light case and Protection and enforcement of rights to light.

What practical advice arises?

Pending any possible changes to the legal position, the following practical tips should be of assistance to developers.

Do your research, and don’t delay.

• From the very earliest stages of the consideration and investigation of any potential development, the issue of rights of light should be high on the agenda.  If there is the potential for rights of light to impact upon development in any way, then deferring the issue will only make things worse:
  • The more time passes, the more likely it is that rights of light may accrue.
  • The further down the road a developer gets with a project, the more financing, professional and construction costs are incurred, all of which could be wasted if rights of light impede or even prevent development.
  • The more invested a developer has become, the greater the potential for beneficiaries to hold a project to ransom.
  • If a [potential] developer is not well-informed from the outset as to the likely existence of, and potential costs associated with, any rights of light, then the overall financial viability of the scheme cannot be properly quantified, and may be compromised.
  • If there is the potential for the ROLA 1959 light obstruction notice procedure to be deployed, the (sometimes lengthy) process should be commenced at the earliest possible time.
  • Take advice from a rights of light surveyor and specialist solicitor from the outset.

Adopt a strategic approach.

• Consider the likely numbers and values of potential rights of light claims and research the nature and identity of potential beneficiaries.  All of this should inform the developer’s overall strategy.  For example, some commercial occupiers might be quite open to the idea of a financial settlement in return for the release or extinguishment of rights, whereas residential occupiers, or commercial occupiers with significant goodwill attached to the specific location of their business, may be less willing to negotiate.

Communication and conduct are key.

• As well as potentially facilitating a commercial resolution, open and considerate communications with beneficiaries can stand a developer in good stead if and when any rights to light issues fall to be resolved via the courts.  Apart from the fact that any expression of interest by a beneficiary in a financial resolution can potentially undermine any subsequent claim for an injunction [3], good or bad conduct on the part of a developer can, case law tells us, significantly impact upon the court’s exercise of its discretion in favour of, or against, the developer.  Adopting a sensible and comprehensive communication and negotiation strategy in respect of rights of light should therefore be an essential early step in any overall development project.

How we can help

Walker Morris advises on all forms of developer disputes, both from a pre-emptive risk-management perspective and when it comes to resolving issues after they have arisen.  If you have any queries or concerns, or if you are interested in receiving legal and practical training in relation to rights of light or any other development-related issue, please do not hesitate to get in touch.

 

[1] See our recent overview briefing on the removing or relaxing of restrictive covenants for more detailed advice on this related issue

[2] a ‘prohibitory’ injunction where an infringement is threatened; a ‘mandatory’ injunction where an infringement has taken place/is continuing

[3] any compensation/financial reward offered by developers should, in these circumstances, therefore generally be made on an ‘open’ (as opposed to a ‘without prejudice’) basis