The battle over right to light: A growing concern in urban development

Recent ‘right to light’ disputes are set to be increase following the relaxation of planning laws by the government last December, particularly in London and other urban areas. As developers seek to maximise space by building upwards, conflicts with neighbouring property owners over access to natural light are becoming more frequent and complex. Mustafa Sidki of the Commercial Property team at leading Southeast law firm Thackray Williams explores the legal rights, solutions and actions commercial landlords can take to navigate this challenging landscape.

The impact of planning law changes on building up

Relaxed planning restrictions announced in December 2024 are about to come into effect, which are designed to facilitate 1.5 million new homes by 2030 by expediting approval for a wide range of housing projects. The government’s strategy is to assign local councils mandatory housing targets, based upon available space and existing housing stock, and councils will be tasked with meeting a target of 370,000 new homes per year.

Areas with the greatest housing unaffordability and growth potential will see higher housing targets and developers will be required to focus more on social rent when building homes, ensuring affordable housing is prioritised.

Urban areas not only have the greatest issue with unaffordability, but also the least developable space; as such the government’s reforms endeavour to provide landlords with the facility to  ‘build up’ into the airspace above buildings and utilise existing rights under residential leases to develop retained parts of residential buildings.

The impact of building up on ‘right to light’

Whilst it can be straightforward and cost-effective to develop on top of an existing block of flats using modular construction methods, developments that ‘build-up’ can fall foul of “rights to light” enjoyed by the owners of neighbouring properties, even with the relaxation of planning restrictions.

A right of light is an easement to enjoy natural light that passes over someone else’s land and then enters through defined apertures such as windows, skylights and glass roofs into a building.

How a right of light can be acquired is predominantly the same as for other easements. In practice, a right of light is most often established in accordance with the Prescription Act 1832 which prescribes that if the light has been enjoyed for 20 years, without interruption, the right is deemed absolute and indefeasible unless the right was enjoyed by written consent or agreement.

Once established, a right of light entitles the beneficiary to receive sufficient natural light to allow the room or space behind the aperture to be used for its ordinary purpose. Rooms used for different purposes will be entitled to receive different levels of light, for example, a greenhouse requires more light than a store room.

What ‘right to light’ means in practise

It is not sufficient to show that there has been a net reduction in the amount of light available; the loss of light must amount to a nuisance, requiring the claimant to prove that their property has been made substantially less comfortable and convenient than before, due to the reduction in light.

Although there is no standard measure of “sufficient light” that can be applied for all uses, there are “rules of thumb”. The starting point of an assessment to determine loss of light is the principle that the maximum light coming from the sky is the equivalent of 500 lumens per square foot or 500-foot candles. The light from the sky is referred to as ‘the sky factor’ in the right of light calculations.

An adequately lit room is generally accepted to receive 0.2% of the sky factor over at least half of its area at working plane level (usually at table height). Therefore, a room should have one lumen per square foot over 50% of its floor area.

If a development results in less than half the room receiving a 0.2% sky factor, when it was above this threshold before the development, or where any material reduction occurs in rooms lit to below 50%, a potential claim for infringement of the right of light may well arise.

Legal recourses to redress right to light infringements

Although planning restrictions may lead to the grant of planning permission, if a right to light is infringed, the beneficiary is permitted to apply for an injunction against the person interfering with the right, irrespective of planning permission being granted. In such cases the courts have discretion to award an injunction, to award damages, or to award both.

An application to the court can be made by the owner of a right of light:

• At any time before the development is completed seeking an order to prevent the development (a prohibitory injunction)
• After the development is completed seeking an order that the development be demolished or cut back to prevent interference with the right of light (mandatory injunction).

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 be required to protect and enforce a beneficiary’s rights.  The courts 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.

Where damages are awarded, the level of compensation is determined by carrying out a valuation of the light lost and the strength of the bargaining position of the party losing that light. Two main methods of valuation are used. They are as follows:

• The diminution in the value of the property interest that benefits from the right of light (usually where loss of light will be small and/or the bargaining position of the owner of the right of light is limited)
• A share of the developer’s gain from infringing the right of light (usually where an injunction is a likely outcome if action for infringement is taken).

Proactive management of potential right to light issues

Developers and commercial landlords wanting to develop their properties can take proactive steps to anticipate and manage potential right to light issues by commissioning a ‘right of light report’, a technical analysis of the potential loss of light caused by a prospective development, which will identify:

• The buildings, and where possible, the identity of the owners and occupiers that may have a right of light
• The extent of the loss of light that may be suffered
• Options to eliminate, or minimise, the risk of a right of light claim being brought by the owners and occupiers of these buildings against the developer or property owner.

A right of light report will enable you to decide if, and when, you should start planning applications to local authorities and negotiations with the owners and occupiers of neighbouring properties benefiting from rights of light. Local authorities often require those wishing to build up to provide rights of light reports with their planning applications, but as set out above, the granting of planning permission does not override a neighbour’s rights to light. Apart from anything else, the light levels that planning authorities might require you to be maintain for your neighbours can be lower than those that your neighbours can enforce by taking legal action against any breach of their rights.

If a local authority grants planning permission, in theory, negotiations can be carried out with the owners of all freehold and leasehold interests in properties that will suffer from an infringement to the right of light. The right to light report will identify the people who should be contacted, but it is not always easy to identify all such parties.

If you can reach an agreement with the owner or occupier with a right of light allowing you to go ahead with your development,  you need to record the agreement by a deed of release, also known as a right of light agreement.  The agreement must record the release of the right of light with sufficient details as to whether it is a full release or a partial release. Once completed, the release should be registered at HM Land Registry as a notice on the property register.

Using light obstruction notices to flush out objections

The Rights of Light Act 1959 (ROLA 1959) provides a method for interrupting a right to light without the requirement for a physical obstruction (i.e. before any construction takes place). 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 obstruction infringes.  The process for obtaining and registering light obstruction notices currently remains somewhat cumbersome but can be beneficial on several different levels.

Light obstruction notices can be useful to flush out potential objections to development in advance and can eliminate possible objectors who fail to respond within the requisite timeframe; 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.

Insurance to protect the interests of commercial landlords

Developers and commercial landlords can additionally seek insurance to indemnify against costs arising from rights of light claims. However, it is very important to bear in mind that, generally, insurance will not be available if negotiations have started with the owners or occupiers of the surrounding buildings whose right of light is likely to be impaired. So a property owner often has to choose between:

• Taking indemnity insurance against a possible claim for infringement of a right of light
• Negotiating the release of the right of light.

Right of light indemnity insurance usually lasts in perpetuity and benefits successors in title, but it is prudent to check the terms of the policy. There may also be an excess to pay that should be taken into account.

Kindly shared by  Property Wire Picture courtesy of Adobe