Rights of light

Rights of light hold immense importance in property law, particularly in the context of development projects. This can be an expensive issue, and is becoming a more frequent problem.

An opportunity for the courts to provide much-needed guidance on right to light was missed at the back end of last year when the parties in Sirosa Properties Establishment v The Prudential Assurance Company Limited reached a settlement. Uncertainties persist.

In essence, a right of light is an easement that typically arises through a specific grant, or is acquired by prescription. It grants certain benefits to buildings on the dominant land, enabling them to receive natural light through specific openings, usually windows, from neighbouring servient land. The purpose of such rights is to prevent substantial interference with the access of light to the dominant land. This means that any individual with an interest in the servient land can be legally restrained from erecting or altering a building that obstructs the light.

To effectively navigate the intricacies of rights of light in property development, it is essential to understand the distinction between a Rights to Light report and a Daylight and Sunlight report. These two assessments serve distinct purposes and play a crucial role in managing risks associated with development projects.

Rights to Light report

This is a legal assessment that focuses specifically on the rights of neighbouring property owners to receive natural light through their windows. Under UK law, particularly the Prescription Act 1832, windows that have enjoyed uninterrupted natural light for a minimum of 20 years are entitled to this protection.

The primary objective of a Rights to Light report is to evaluate the potential impact of a proposed development on the natural light available to neighbouring properties. If the development significantly reduces the amount of natural light received by these properties, the affected owners may be entitled to seek compensation or even an injunction to halt the development. Conducting a Rights to Light report is essential for developers as it helps manage the risk of legal disputes and potential financial losses.

Daylight and Sunlight report

In contrast, a Daylight and Sunlight report is a technical assessment that focuses on the overall quality of daylight and sunlight within a proposed development and its surrounding areas. This assessment adheres to the guidelines set out by the Building Research Establishment (BRE) in the UK.

The primary goal of a Daylight and Sunlight report is to ensure that the proposed development meets the minimum standards for daylight and sunlight access, as defined by the BRE. Local planning authorities often require this report as part of the planning application process. It aims to guarantee that new developments provide suitable living and working environments for occupants, while minimising adverse impacts on the surrounding area.

To ascertain the existence of a right of light, developers undertaking land development projects should seek advice from a specialist surveyor. This professional will consider various factors, including the amount of daylight received by the dominant land’s buildings and potential claims from owners who hold rights of light. Engaging a surveyor early in the development planning stages is crucial to avoid potential delays, redesigns, or the need for new planning consents.

The surveyor will prepare a comprehensive right of light report, allowing the establishment of a ‘development envelope’. This envelope defines the physical boundaries within which the development on the servient land must adhere to, ensuring minimal or no infringement on the rights of light benefiting neighbouring land.

Once the initial development plans have been outlined, it is essential to evaluate the trade-off between minimising the risk of a claim by reducing the size of the development and the potential cost associated with such a claim. Initiating negotiations with the owner of the right of light or obtaining suitable insurance may be advisable.

In cases where an infringement of a right of light has occurred or is imminent, there are various paths to resolution. One option is obtaining the consent of the owner of the right of light, accompanied by appropriate compensation. Negotiations can be initiated between the developer and the owner to reach a mutually beneficial agreement, which should be documented in a deed of release and registered at the Land Registry.

Alternatively, if an infringement persists, the owner of the right of light can seek enforcement through injunctions or damages. Injunctions can prohibit or require certain actions to rectify the interference, while damages provide financial compensation for the infringement. The court has the discretion to award damages instead of an injunction, considering factors such as the degree of harm caused and the sufficiency of monetary compensation.

Considerations

Before initiating a claim, owners of rights of light should establish the grounds for their claim and commission a surveyor’s report to assess the strength of the claim and potential compensation. Developers must conduct thorough assessments of the risks associated with potential claims, identify relevant parties, and handle negotiations in a timely manner. Ignoring or underestimating the significance of a right of light claim can lead to serious consequences, including delays, financial losses, and even demolition.

In conclusion, rights of light play a crucial role in property development, ensuring adequate access to natural light and protecting the interests of both dominant and servient landowners. It is vital to seek expert advice and engage in proactive communication to ensure the best outcomes for developers, helping them strike a balance between development aspirations and the rights of light held by neighbouring properties.

Jaz Tott is a partner at Spector Constant & Williams, London