UK: Continue But With Compensation

Last Updated: 20 April 2018
Article by Andrew Ross and Sarah Quy

A right to light is an easement and a private property right. It gives the beneficiary a right to light through an aperture, usually a window, and may burden the neighbouring land over which the light passes to reach the window. Protecting a right to light often means preventing a neighbour from obstructing the light to a window.

Rights to light can conflict with development projects. This is particularly the case in the context of the current public policy impetus in favour of high-density housing in some urban and suburban areas. Although this conflict is not new, the courts and planning authorities are increasingly recognising in their decision-making that the balance is shifting from the protection of private rights towards the promotion of development which is perceived to be in the public interest.

Remedies for breaching rights to light

When an easement is substantially infringed, this constitutes a tort of nuisance. The primary remedy is an injunction to prevent or reverse the infringement. The court has a discretion to award damages instead. In the now famous nuisance case of Coventry v Lawrence [2014], the court found that although an injunction remained the prima facie remedy to which a successful claimant in nuisance is entitled, there should be a move towards more flexibility in awarding damages instead.

This shift can also be seen in cases relating to applications by developers for the release or modification of restrictive covenants affecting development land. In 2016 in Millgate Developments Ltd v Smith, the Upper Chamber prioritised public interest in housing development over a private landowner's rights when it determined that some covenants prohibiting development could be discharged because they were contrary to public interest.

The tribunal decided that it was not in the public interest for affordable housing, which had been built in breach of covenant, to remain empty when the covenants were the only obstacle to them being used. The tribunal awarded the beneficiary £150,000 compensation. This was despite the developer knowing that restrictive covenants prohibited development of its site and not attempting to negotiate to release these before building. Millgate built the homes to satisfy its affordable housing obligation at another site so it could sell more valuable private residences there.

Evaluating a breach of a right to light: how is light measured?

There are several alternative ways of measuring the amount of light that a room receives, in order to assess how much would be lost if a development proceeds. These include the following:

  • The Waldram method is the method commonly adopted by rights of light surveyors when providing expert evidence in a claim. It assesses the difference in light entering a room through a window before and after a proposed development. The adequate amount of light for reasonable enjoyment of a room is treated as being one lumen. A lumen is the amount of light thrown by a candle placed one foot away at table height. It equates to approximately 10 lux. If more than half a room (usually that part closest to the window or window) receives more than one lumen of light per square foot, the light is assessed as sufficient for reasonable enjoyment. It is difficult to imagine working in a room with one candle per square foot at desk height – the test has been accepted by courts but is not considered an accurate measure of reasonable light in a room by many rights of light surveyors and planners.
  • The BRE daylight and sunlight model measurement of light is the method commonly used for planning purposes. This model may well require a greater amount of light within rooms than the Waldram method. It is not normally used in rights of light disputes.
  • In its review of rights to light (4 December 2014 Law Commission final report (Law Com 356)), the Law Commission referred to the modelling of Professor John Mardaljevic, professor of building daylight modelling at Loughborough University. His technique is known as climatebased daylight modelling. This uses a more sensitive basis for modelling than the Waldram method. It takes account of the usual climatic conditions in the area in which a property is located, acknowledges the effects of variability of sky conditions and also takes account of the surrounding landscape and internal arrangements of rooms. This approach is accepted by the Education and Schools Funding Agency which adopted it for its Priority School Building Programme for calculating available light in schools. It has not yet been tested in court. It is possible that this would give a more accurate measurement for purposes of a claim than the Waldram method presently provides of exactly how much light is entering a room and the effect of a development.

How can a development proceed when the site is subject to rights to light?

There are four main approaches that a developer can take in order to ensure that development is not prevented by a right to light:

Using the light obstruction procedure

Pursuant to the Rights of Light Act 1959, light obstruction notices (LONs) can be served on the beneficiary of a right of light, certified by the Lands Chamber Upper Tribunal and registered with a local authority. This creates a notional obstruction of light to the dominant owner's land. If this remains unchallenged for a year, the right of light will be extinguished or the period of 20 years for purposes of establishing a prescriptive right will be interrupted.

LONs put owners of dominant land on notice of their right of light and can alert them to take action to protect their rights. Serving LONs may be combined with negotiation to agree release of rights.

Negotiating a deed of release

If a developer employs a rights of light surveyor to assess possible interference with rights of light caused by a development and some interference is identified, it is often the case that the developer will approach the owner of the dominant land to release their right of light. The Waldram method is usually used to assess this and calculate the value of the area over which the light is materially obstructed. When there is a real possibility of an injunction, a beneficiary may seek an amount in settlement which is a proportion of the profit the developer will gain as a result of breaching the rights of light (gain-based damages). Gain-based damages are often the owner of the dominant land's starting point in negotiation.

If a developer can persuade a beneficiary of a right of light to negotiate a release price openly, this may result in that beneficiary losing their ability to seek an injunction. This weakens their negotiating position.

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