If your neighbour is thinking of building an unwanted skyscraper next to your downstairs loo, don’t worry - your right to light might just stop the development in its tracks or allow you to charge potentially significant levels of compensation in exchange for giving permission for the development to go ahead.Under English law a right to light is a form of easement that gives a long-standing owner of a building with windows a right to maintain the level of illumination. An easement is a right to use property that is not your own. An example of an easement is where a statutory authority is granted a right to enter onto land it does not own in order to effect a repair to a sewer or electric cable.
In effect, the owner of a building with windows that have received natural daylight for 20 years or more is entitled to forbid any construction or other obstruction that would deprive him or her of that daylight. Neighbours cannot build anything that would block the light without permission of the owner.
It is possible for a right to light to exist if granted expressly by deed or granted implicitly by prescription; that is, the enjoyment has continued for a period of 20 years without interruption.
If you are a developer and you want to extinguish your neighbour’s right to light, short of getting your cheque book out and throwing yourself at the mercy of the neighbour, you could have a real problem. A Local Authority has statutory powers under the Town and Country Planning Act 1990 to sell, lease or use land or build on it even though it might interfere with a neighbour’s interest or right, including a right to light, but these powers are rarely exercised.
If a party is affected by a neighbouring development that is going to infringe that party’s right to light then the remedy is to apply to the court for an injunction to restrain the development. The granting of a restraining injunction is not a guaranteed outcome but it is the default remedy available to the Court. As an alternative, the Court may elect to award damages in lieu of granting an injunction if it deems this to be appropriate or it decides that the granting of an injunction would be oppressive.
In reality, parties affected by a loss of right to light may seek to negotiate an appropriate level of compensation leaving the threat of a restraining injunction hanging over the head of a developer. Assessing the level of damages is based on the loss of amenity caused by the loss of light. The Court is unfettered in assessing what the level of damages ought to be. However, if the development is one in which investors are likely to make a significant amount of profit then it may well be more inclined to grant an injunction or to award an appropriately high level of damages. Conversely if the loss of light is minor or the profit to be gained by the development is modest, the Court may well be less inclined to grant a restraining injunction and more likely to award a modest level of monetary compensation.
The final issue to consider is the cost of legal representation and the commercial bargaining position of the parties in dealing with disputes over right to light. A good friend of mine once commented that everything is for sale, even the wife and children he would say. So, if you are a party whose right to light has or is about to be affected, instead of throwing caution to the wind and applying for that restraining injunction at least think about negotiating compensation in parallel with Court action. Similarly, if you are a Developer thinking of trying to ride rough-shod over your adjoining land owner’s rights to light, perhaps a sensible discussion and a negotiated settlement on compensation, inside or outside a formal mediation, might be a better way of proceeding than investing, indirectly of course, in your lawyer’s new Bentley.
Peter Vinden is a practising adjudicator, arbitrator, expert and mediator. He is Managing Director of Vinden and can be contacted by email at email@example.com.