Any development in a built-up area, or where there are neighbouring properties, runs the risk of running into issues with rights of light which benefit neighbouring buildings.
A right of light is a form of easement that gives a landowner (commercial or residential, freehold or leasehold) the right to receive light through defined apertures of buildings located on its land. An adjoining owner who unlawfully interferes with a right of light may be restrained from doing so or ordered to pay damages.
No natural rights of light exists at common law. A right of light can be acquired by:
- Express grant;
- Implied grant (s.62 Law of Property Act 1925); or
- Prescription (by common law, the Prescription Act 1832 (the most common means of acquiring a right of light) or the doctrine of lost modern grant.
If a right of light does exist and would be substantially interfered with (or has already been substantially interfered with) the primary remedy for the affected party is an injunction or, at the Courts discretion, damages may be awarded instead of an injunction. Damages can be assessed in various ways however the likely assessment will be based on a proportion of net profit resulting from that part of the development which causes the actionable interference. As an injunction would prevent a development and as any damages in lieu could be substantial it would be a risky and potentially expensive route to commence a development without being certain as to your liabilities for rights of light.
Increasingly however, developers are labouring under the misapprehension that any planning reports relating to rights of light are sufficient to identify any potential easements of rights of light that may affect the property to be developed. In particular, we are increasingly presented with daylight and sunlight assessment reports based upon the Building Research Establishment (BRE) Guidance “Site Layout Planning for Daylight and Sunlight : A Guide to Good Practice”.
The rights of light guidance contained within these reports are as a rule of thumb relating to daylight and sunlight for planning purposes and give information on the effect of a development on surrounding properties. Interference, in this instance, is by reference to sunlight/daylight.
By contrast, when assessing whether a right of light is being substantially interfered with, the legal assessment is by reference to the sky factor and no reliance can be placed upon a BRE guidance based report in determining whether an easement for right of light exists.
It would therefore be a potentially costly mistake to proceed with a development where there are neighbouring properties without first establishing if any property benefits from rights of light, obtaining a full right of light report from a qualified professional in this area, (who will be able to advise if the proposed redevelopment will substantially interfere with such rights), and then considering your options for dealing with any rights of light with your legal adviser.