Rights to light – Ancient and modern

Introduction

Easements to light are one of the oldest property rights and the principles are very entrenched. However a spate of controversial cases over recent years and general feeling of panic among developers has encouraged the Law Commission to investigate:

“whether the law by which rights to light are acquired and enforced provides an appropriate balance between the important interests of landowners and the need to facilitate the appropriate development of land.”

This article provides a recap of the current law in relation to rights to light and touch upon some of the problems faced by developers and landowners alike.

Legal background

A right to light like other easements can be acquired by express grant or prescription. Most commonly a right to light is acquired by prescription. In order to establish a prescriptive right it is necessary to show the following:

• Access to and use of light to a building
• Actually enjoyed (albeit by the owner or tenants)
• For 20 years (although 19 years will be sufficient in certain circumstances)

A right to light is enjoyed by a dominant tenement through an aperture which has a purpose of admitting light. Windows are clearly apertures and the fact that the windows have curtains or blinds or are in some way restricted will not prevent a right to light being acquired. Rights to light do not attach to gardens or open land.

The basic principle is that a right acquired relates to the amount of light required for the beneficial use of the building for any ordinary purpose: Carr-Saucders v Dick McNeil Associates Ltd [1986] 1 WLR 922 at 929.

If alterations to the windows render it impossible for the court to determine the extent to which light received by the old windows is received by the new, the easement is lost: Ankerson v Connelly [1906] 2 Ch 544 at 548, 549. The question for the court is whether the alteration extinguishes or interrupts the establishment of an easement.

“The measure of the enjoyment and the measure of the right are not the windows and apertures themselves, which would involve a continuing structural identity of the windows, but the size and position of the windows, which necessarily limit and define the amount of light which arrives ultimately for the house’s use”: Scott v Pape (1886) 31 Ch D 554 at 572.

A technical expert will use Waldram diagrams to assess the light coming into the relevant windows and compare the amount of light before the build and the amount after.

Remedy

An action for interference with a right to light is an action in nuisance for an injunction and/or damages. There is no need for the building work to have started nor any need to show damage. The following points will be taken into account is assessing whether there has been an interference:

• Is there sufficient light left? (Not how much has been taken);
• The Claimants are entitled to such light as is sufficient for all reasonable purposes to which the building may be put;
• Use of artificial light is irrelevant;
• An injunction should prevail over damages save in extraordinary cases.

HXR UK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch) provides modern authority for the proposition that the courts will readily grant a mandatory injunction if an affected landowner has made his protests clear and the developers have carried on regardless. Mr Heaney had not yet issued the proceedings, the injunction was granted in response to the developer’s declaratory proceedings. The principles applicable to the decision whether to grant an injunction as opposed to damages, entrenched since Shefler v City of London Electric Lighting Co [1985] 1Ch 287 and recently confirmed by the Court of Appeal in Regan v Paul Properties Ltd [2006] EWCA 1319 at 36-37. It is also important to note that this case was compromised before appeal and it is unclear whether the same decision would have been upheld by the Court of Appeal.

In CIP Property (AIPT) Ltd v Transport for London [2012] EWHC 259 (Ch) (Ch D) Sir Andrew Morritt concluded a quia timet injunction should be refused as there was no planning consent, no current ownership, and merely a possible pre-emption right, which would only be exercisable if the current owners decided to sell; there was no immediate threat such that the claimant needed the protection of the court.

Commentary

Horizontal space for development in England’s cities, most notably in London, is diminishing. The city sky line now contains Europe’s tallest building, the Shard, which is due to complete in a matter of weeks. It seems highly likely that this is simply the first of a number of tall buildings set to expand London upwards.  If the new buildings themselves block the light to the other new tall buildings (which have been there for less than 20 years), such as the Shard, it seems highly improbable that any easement will be available; there will not be the requisite period of interrupted use.

Nevertheless, the rights of those owners who have already acquired their easement could still seriously hamper development. Developers must take heed of the realistic chance that if they interfere with the land owners’ easement to light, they will face an injunction which could prevent the build or require parts of the building to be demolished. Sensible developers will ensure all potential claims are resolved before building works commence.

Landowners must be aware that the court will only grant injunctions to restrain development where that development is an immediate threat, not a theoretical possibility. Though, of course, this can be before works commence.

The Law Commission’s research was due to commence early 2012 and a consultation paper should be available in 2013.