Right to light issues can have serious implications on development schemes in the initial stages and, more problematically, those that have already begun. Neighbours can obtain injunctions to prevent interferences with their rights to light and/or be awarded significant damages to compensate them for the loss of their rights, even when the infringement is considered relatively minor.
The injunctions that can be awarded can result in the developer having to amend their proposed scheme and/or cease work altogether which could undermine the viability of a development.
What is a right to light and who has it?
A right to light is an easement. An easement is a benefit one parcel land enjoys over another parcel of land. In effect, this right allows the owners of a property (Property A) to benefit from the natural light that passes over their neighbour’s land (Property B) and then enters Property A through defined apertures in a building. Apertures include windows (with or without glass), skylights and glass roofs.
How does a right to light arise?
A right to light can attach to a parcel of land either immediately (via express grant, implied grant or statute) or, as is more commonly the case, through long term use. There are various ways in which an assertion based on long term use can be made. However, most are based on the provisions of the Prescription Act 1832 (the 1832 Act).
A right to light can be acquired under the 1832 Act if the light has been enjoyed without interruption for a period of at least 20 years, provided the light has been enjoyed without any written consent. It is worth noting that, if oral consent has been given (even if that is evidenced by payment), that is not a bar to establishing a right to light by prescription under the 1832 Act.
Implications for the Developer
From the outset of a scheme, developers must ensure that emphasis is placed on how and when they deal with the potential impact of right to light claims.
Developers who assume that all possible litigation on this point evaporates once planning has been granted and works have commenced, does so at their own risk. Although courts will generally not assist a party who seeks an injunction after the event if it can be shown that they had the opportunity to act sooner, there are examples in case law where a party has waited until a building has been erected and has then obtained an injunction requiring it to be altered. Although these cases are exceptional they do show the impact an injunction can have at any stage in a development project.
Conduct is crucial says new case law
A key judgement on this right has recently been upheld by the Court of Appeal.
Scandia Care Ltd and another v Ottercroft Ltd [2016] involved a developer who had commenced works on a small mixed-use development comprising residential flats above a commercial unit. Alongside building a storeroom, the works involved replacing an existing staircase that serviced the flats as a fire escape. The neighbour owned a restaurant next-door and complained that the new staircase obscured the light to the restaurant’s kitchen windows. In response to the complaint, the developer, specifically one of its directors, gave undertakings that the neighbours’ rights would not be infringed. In spite of this assurance, the developer persisted with its works culminating in the neighbour seeking an injunction from the Court for the removal of the staircase.
Decision
An injunction was granted despite the fact that the impact to the neighbour’s light had been valued by the parties’ experts at £886, whereas the cost to the developer for removing and relocating the staircase was estimated to be in the region of £6,000. On this basis, one might consider that the injury suffered by the neighbour to be relatively minor and therefore could have been be compensated by a small monetary payment as opposed to an injunction putting the developer to significant additional cost. The County Court, however, did not hold this view.
Instead, the Court held that the developer company had acted in an un-neighbourly and high-handed manner throughout and that one of its directors was deemed not to be a truthful witness by the presiding judge. Further, it was held that the developer knew that the staircase would infringe the neighbour’s light but proceeded with its works regardless, even after the neighbour had threatened legal proceedings and contrary to the undertakings given. In addition, the developer intentionally kept its plans for development from its neighbour and chose to build the fire escape during a time when it knew the neighbouring premises would be vacant.
The Court of Appeal upheld the trial judge’s decision and reiterated that in cases of this sort, judges have the discretion to either award damages or an injunction as they see fit based on the facts of the case. It should be borne in mind that where the court awards damages in lieu of an injunction it is effectively allowing the compulsory purchase of a neighbour’s rights by the developer. Therefore, there will be instances in which this remedy cannot be deemed appropriate due to the attitude and actions taken by those involved.
This case should serve a clear message to developers. A strong emphasis should be placed on adopting a careful strategy in terms of communicating with the neighbouring owners, ensuring that, should a conflict arise, their behaviour will be deemed to be, at the very least, reasonable and fair when it falls under the scrutiny of the Court.
Avoiding conflict with strategy
It is advisable for developers to consider adopting a clear strategy at the outset of a scheme with a view to avoiding what could result in costly conflicts. A balanced approach should be adopted having regard to the cost implications in light of the overall value of the scheme and any possible negative effects. How this matter is dealt with will depend on the individual circumstances of each development however by way of overview, options which may be available include (this list is not exhaustive):
- Early negotiations settlement to avoid lengthy claims
- Light obstruction notices; and/or
- Right to light insurance.
If due diligence indicates that neighbours of a potential scheme have acquired rights to light under the 1832 Act, then negotiations can provide level of certainty by uncovering any potential claims, making way for early settlement and in effect nipping any contentious matters in the bud. However, there may be the unintended consequence of alerting parties to potential rights they would have remained unaware of had contact not been made. The number of neighbours involved is likely to be a determining factor as to whether this option is utilised. It should be borne in mind that if a neighbour has been alerted to a potential claim, insurers will be highly unlikely to provide cover.
If a neighbour has accrued less than 20 years benefit of light it is possible to serve a light obstruction notice upon them to prevent them acquiring a “right to light” under the 1832 Act. Additionally, if a neighbour has already acquired a right to light by accrual over 20 years or more, a light obstruction notice can still be served upon them. If the notice remains unchallenged for 12 months the neighbour’s right to light is eliminated.
Right to light insurance is becoming an increasingly popular and viable option for developers, particularly those under a strict time constraint. The key advantages are the provision of a safety net should a claim arise and the ability to truncate what could otherwise by a lengthy period of investigation and negotiation. Naturally, the cost implications of purchasing such cover will need to be assessed against the cost of the overall scheme.
Seeking legal advice on this point at the infancy of a scheme will ensure any potential issues are identified and will allow for the implementation of appropriate measures to help to protect the developer’s position. Should a developer choose to ignore their neighbour and the issue, the resulting penalties could prove significant.
If you would like to discuss any aspect of this article, please contact Amanda.Byrnes@tughans.com or any member of our real estate team who will be happy to assist you.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.
