What are Rights of Light and Why Are They So Important?
With Rights of Light being such a complex and evolving subject, this article cannot possibly cover everything there is to know about it. Rather, we cover some salient points and some of the practicalities below. Our full Basis of Rights of Light document will soon be available and will cover the subject in more depth. We are also always on hand to discuss the subject in greater detail so please do get in touch.
What are Rights of Light?
A Right of Light is a private, legal easement in English law. An easement is defined as “the legal right to cross or use someone else’s land for a particular purpose”¹ and has a dominant owner, who benefits from the easement, and a separate servient owner, who is subject to the easement. Easements must also be capable of forming the subject of a grant (transferred from a grantor to a grantee)².
Rights of Light constitute a negative easement because the right of the dominant owner prevents the servient owner from taking an action that would infringe the right.
Rights of Light give property owners the right to enjoy light through “defined apertures” (windows or other structures in the form of defined apertures), over adjoining land.
When Rights of Light are enjoyed and a loss of light occurs, the question is whether the infringement of the right constitutes a nuisance.
How are Rights of Light acquired?
Rights of Light can be acquired in several ways; expressly granted or granted by implication - usually coinciding with a property sale or the granting of a lease - or through long enjoyment (prescription).
Acquisition of Rights of Light through long enjoyment usually occurs via the Prescription Act (1832), when light is enjoyed for a period of 20 years immediately prior to the issue of a Court action, without interruption and not by consent, although there are two other principles of long enjoyment that we must also consider when establishing whether an adjoining owner is likely to have acquired prescriptive Rights of Light; acquisition via the doctrine of Lost Modern Grant and at common law. Once acquired, the right is said to be absolute and indefeasible.
Rights of Light can be transferred from a pre-existing building on a site to a new building on the site through the principle of transference. Transference of Rights of Light can occur where there is sufficient coincidence (overlap) between the old and new apertures i.e. in plan and elevation. The onus is on the adjoining owner - the owner of the right - to prove that pre-existing Rights of Light have transferred to apertures within the new building, although it is critical for developers, as the servient owners, to fully investigate these instances in order to establish the level of risk a newer building may pose to their development. We investigate this through undertaking transfer studies to estimate the extent of any coincidence.
How are Rights of Light impacts measured?
A Right of Light entitles the right owner not to the same amount of light through those apertures that they have always enjoyed but, rather, to a level of light considered to be sufficient for the comfortable use and enjoyment of the property in question.
There is no clear definition of what constitutes light sufficient for the comfortable use and enjoyment of a property. There has, however, traditionally been a working rule that a good starting point is for half of a room to enjoy a view of 0.2% of the sky dome, equivalent to one lumen per square foot (which is equivalent to the light given by a one foot candle at a distance of one foot away), at the working plane, or approximately 85cm above floor level, to leave it adequately lit once a development has been constructed (the “50:50 rule of thumb”). It is generally accepted, however, and is supported by case law, that residential properties have a higher expectation of natural light than other uses, so Rights of Light surveyors often consider 55% well-lit area of a room to be a reasonable starting threshold for residential properties when undertaking their assessment.
Rights of Light surveyors have traditionally used a simple methodology devised in the early 1900s to measure the area of a room that is adequately lit (receiving the aforementioned view of 0.2% of the sky dome); the “Waldram method”. Nowadays, however, more advanced methods of daylight assessment exist and this, combined with a number of flaws in the simplistic methodology, has resulted in the appropriateness of the Waldram assessment being questioned. Nevertheless, the Waldram methodology remains a generally accepted starting point for assessment and a useful tool for surveyors as it has long formed the basis of initial calculations of monetary compensation.
Whilst Rights of Light assessment considers impacts to natural daylight to properties, the huge advancements in artificial lighting since Rights of Light assessments began mean that the relationship between natural daylight and artificial lighting is increasingly discussed when considering the overall context of impact to an adjoining property and whether a nuisance has occurred.
When assessing the impact to a property, both existing and reasonable future uses and layouts of the rooms should be taken into account, not only the existing condition of a property.
How are Rights of Light removed?
Rights of Light can be prevented, extinguished or overridden in the following ways:
Through interruption by an obstruction for a period of one year prior to Rights of Light having been acquired via the Prescription Act (1832). Light Obstruction Notices under the Rights of Light Act (1959) serve as a notional screen served by a developer in respect of an adjoining property and, if not successfully challenged within a one year period, they prevent the property from acquiring Rights of Light under the Act;
By a developer and adjoining owner entering into a deed of release, which legally documents that the adjoining owner has agreed to relinquish their Rights of Light over the development site;
By the adjoining owner abandoning their Rights of Light in some way, although abandonment is usually very difficult to prove;
By the two parcels of land being under the same ownership; and
Via the use of statutory powers enacted by a Local Authority or other public body under Section 203-206 of the Housing and Planning Act (2016), allowing them to override Rights of Light and other rights in situations where sufficient public benefit can be evidenced. This is a significant and lengthy process seen as a last resort.
What are the remedies for Rights of Light infringements?
In Rights of Light cases that reach the Courts, it is at the discretion of the Judge to award, taking all circumstances of the case into account, either an injunction - a requirement for the offending area of a proposed development not to be built, or to be removed in situations where it has already been constructed - or damages in lieu of an injunction. If damages are deemed the appropriate remedy, it becomes a question of how these damages are calculated and what level of financial settlement is appropriate. The conduct of the developer (as well as the adjoining owner) in Rights of Light cases is critical to the outcome.
There are generally two main principles that are considered in the calculation of monetary payments for Rights of Light settlements:
A book value methodology, which uses the Waldram methodology to produce an “Equivalent First Zone” figure, having taken into account the areas of the room from which light is lost and applied a weighted value to those losses. A rental value of light figure (typically £5psf) and years purchase figure (based on the appropriate market yield) are then applied, producing a book value for the loss of light that is then uplifted in negotiating an appropriate settlement, with the level of uplift based on various factors; and
A development profit share methodology, whereby an adjoining owner may be paid damages based on a portion of the profit the developer stands to gain in relation to the offending part of the development. Again, as one may expect, there are a huge number of factors influencing what level of damages this methodology might produce.
In cases that don’t reach the Courts, it is generally the case that developers will pay a monetary settlement to an impacted adjoining owner in return for both parties entering into a deed of release. The deed of release is registered on the title to the properties and legally confirms that the adjoining owner relinquishes their Rights of Light over the development site.
Although perhaps unhelpfully vague, an overarching principle in Rights of Light cases is that the level of payment should “feel right”³.
What are the practical points for our developer clients?
Rights of Light are entirely separate to the Daylight and Sunlight considerations and assessments undertaken for planning applications. Regardless of the planning status of their proposed development, our developer clients must always consider the impact that their development may have on any Rights of Light enjoyed by their neighbours.
For our developer clients, it is crucial that consideration has been given to potential Rights of Light impacts to neighbouring properties in the earliest stages of a project. Rights of Light, where there are potential infringements identified, requires considerable time, resource and expertise to be allocated to it, as well as a financial budget for implementing and concluding a mitigation strategy. Even prior to acquisition of a site we recommend that our developer clients engage us to review the site to determine whether there are any Light Obstruction Notices that could be served to protect the site or to highlight any key Rights of Light risks that may constrain its development. A Light Obstruction Notice strategy for our clients’ sites can be critical to their successful development and improving financial outcomes.
We recommend that our developer clients, where we are going to be required to engage with adjoining owners in connection with Rights of Light, allow sufficient time for all discussions to be closed out. As a rule of thumb we recommend at least a year but this is entirely dependent upon the specifics of the site in question.
Rights of Light insurance is often appropriate and available as part of an overarching Rights of Light strategy for a development site. When appropriate, we liaise closely with brokers and insurers in obtaining the very best tailored insurance solution for our clients based on the specific requirements of their site. Rights of Light insurance does not cover the physical risk of an injunction but can cover a range of the financial risks associated with Rights of Light claims.
What are the practical points for our adjoining owner clients?
Not to be confused with Daylight and Sunlight for planning, our adjoining owner clients are entitled to assert their Rights of Light over a neighbouring development site notwithstanding that it may or may not yet have been granted planning permission.
Raising a Rights of Light claim can be daunting for adjoining owners, who can feel intimidated by an often faceless developer proposing to develop a neighbouring site. We recommend that adjoining owner clients engage us as soon as they suspect that their light might be impacted by a development (even if we find that there will be no Rights of Light infringement once we have assessed the situation - it’s better to engage us and find this out than not engage us at all!).
It is important that adjoining owners engage Rights of Light surveyors to advise them on the correct processes and to act on their behalf, as being well-advised and conducting oneself appropriately is critical to the outcome of these matters. We act for a range of adjoining owner clients, from large-scale landlords, large companies and public bodies, to individual private property owners (including owners of flats within larger blocks), so are here to help anyone with concerns about an impact to the light to their property.
At Century Associates, we help to guide our developer and adjoining owner clients through Rights of Light matters, from initial appraisals and design stages through to implementing Rights of Light strategies and concluding discussions on behalf of adjoining owners. The importance of having Rights of Light surveyors on board when navigating the subject cannot be understated but we hope that this article is helpful in providing a summary of some of the key considerations.
Please do not hesitate to contact us at enquiries@century-associates.co.uk, or on 07554 939 187, for advice.
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1 Cambridge Dictionary definition of an easement (2023)
2 Ellenborough Park (1955)
3 Amec Developments Ltd v Jury’s Hotel Management (UK) Ltd (2001) and Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd (2007)