A right of light is a type of easement (a right enjoyed over someone else’s land) that freehold owners and tenants of buildings can acquire. The right gives the owner the benefit of enjoying natural light into the windows, skylights and glass roofs of their buildings.
The protection created by a right of light does not extend to: a property’s privacy, uninterrupted views of a skyline, the right to direct sunlight or preventing a property from being overlooked.
Once acquired, a right of light can prevent a developer from substantially interfering with the light to a building, for example by erecting or altering a building which obstructs the light.
A right of light can be acquired:
1. Immediately by:
- express grant (or reservation); or
- statute; or
- implied grant.
2. Overtime by:
- common law prescription (this presumes that there has been a grant of a right of light since ‘time immemorial’, and consequently is only relevant if a building can be proven to have been there since around 1189); or
- the doctrine of lost modern grant (this presumes that, if light has been enjoyed as of right for at least 20 years, there was, at some point in the past, an express grant of a right of light, and that the document containing the grant has been lost); or
- The Prescription Act 1832 (the most common method of establishing a right of light in practice).
Enforcing a right of light
Once a right of light has been successfully proven and a potential infringement established, the following courses of resolution are available to the owner:
- Consent and compensation: Negotiations between the developer and the owner of the right of light with an aim to reach a position where the owner of the right of light provides their consent in return for compensation.
- Injunction or damages: An owner of a right of light can apply for an injunction against the developer.
Prior to making any claim, the owner of a right of light should consider/establish the following:
- The grounds for the claim: e.g. how the right of light has arisen and how the proposed development would (substantially) infringe the right.
- The likely level of compensation due: it is advisable to commission a specialist surveyor’s report.
- What the desired result is: e.g. compensation or prevention of the development.
A successful claim can cause developers to be forced to cut back their developments - even if planning permission had already been granted - and, in extreme cases, the court can order a completed development to be demolished.
Precautions for Developers
Developers should seek advice from specialist surveyors during the early stages of planning any development of land and consider any potential claims to rights of light that may be made. Failure to consider rights of light during the planning stage can lead to delays in development, redesigning developments at a late stage and having to re-apply for planning consent.
Developers should also consider taking preventative steps by, for example, preventing any buildings near the development from gaining a right of light prior to the development being completed.