Rights to Light – What is all the noise about?
Potential changes to the Rights to Light legislation are currently being reviewed by the Law Commission.
In England we have an ancient legal system and it has been argued that the current legislation is based on an outdated and ancient logic. A Right-to-Light derives from the 1832 Prescription Act and is it is important to understand that it is entirely separate from planning law.
The act does not provide specific criteria but sets out the general right of a householder to maintain a degree of air and light to their property. Legal judgements over the years have built up a set of criteria that are used today. There are no single pass or fail figures due to the number of precedents set over the years.
The department for Communities and Local Government note that “Such proposed land law reform is no different from the Party Wall Act 1996 which consolidated complex legislation on land boundaries that dated back to the 17th century”.
What Changes to the Law are Being Suggested?
Rights to Light is a form of easement in English law. This means that a window currently acquires a Right-to-Light if it has had an uninterrupted benefit from a given amount of sky for a period of at least 20 years.
The Law Commission is currently consulting on significant changes to the legal regime surrounding rights-to-light. The four provisional proposals are;
• In future it should no longer be possible to acquire rights to light by prescription.
• A new statutory test is proposed to clarify the current law on when the courts may order a person to pay damages instead of ordering that person to demolish or stop constructing a building that interferes with an individual’s Rights-to-Light.
• A new statutory notice procedure is planned requiring those with the benefit of Rights-to-Light to make clear whether they intend to apply to the court for an injunction with a view to introducing a better basis for understanding a rights to light dispute.
• A proposal to allow the Lands Chamber of the Upper Tribunal to be able to stop Rights-to-Light that are obsolete or have no practical benefit, with payment of compensation in appropriate cases. It can currently do this under the present law with respect to restrictive covenants.
Daylight and the Planners!
Planning Permissions apply guidelines and not laws. The guidelines relate to the amount and quality of daylight in a residential room. Architects and planners generally inform their decisions based on the BRE guide ‘Site Layout for Daylight and Sunlight: A Good Practice, 1991.
The guide recommends that windows in dwellings have a minimum sky factor of 27%. It is also suggested that windows that face south should receive at least 25% of the available annual sunlight and at least 5% of available annual sunlight during the winter.
An additional source of guidance is the British Standard, BS 8206, Part 2 1992, ‘Code of practice for daylighting’
Over and above the guidance the planners do not normally check to see if a proposal infringes a neighbours Right-to-Light as it is not a planning matter. Even if planning has been granted a neighbour who feels their Rights-to-Light might have been infringed can seek an injunction to stop or modify a project, it is not unheard of for a neighbour to seek a partial demolition!
Rights to Light Insurance for Larger Developments
Right-to-Light insurance policies are available for our developer clients to protect them from the risk of a possible future claim in respect of an infringement of a neighbour’s Right-to-Light.
Courts are increasingly awarding injunctions against developers rather than simply compensating the injured parties. The costs of compensation/damages can be significant, often being based on up to 30% of developer’s profit, but this is still significantly less than the cost of an injunction requiring the demolition of the offending part of the development, possibly even following completion and occupation.
As a consequence, in order to allow a development to proceed without the delay of awaiting the conclusion of Right-to-Light matters, a developer can take out an insurance policy to protect themselves from the range of potential costs associated with a legal claim in a rights to light dispute.
Insurance policies provide two forms of protection: firstly, paying all legal costs involved in addressing claims against a developer; secondly, insuring any combination of the cost of any settlements, damages award or abortive costs incurred as a result of a third party claim or loss in land value in the event a developer’s desired project is permanently halted by a Court.
Douglas and King and Rights to Light
At Douglas and King we welcome the review and the potential simplification of outdated legislation. As London rebuilds, remodels and expands we are continually having to address the complex Rights-to-Light legislation in order to maximise our clients land value without infringing on neighbouring rights.
On smaller projects we include a section on light tests as part of our Planning Statements. We have software that calculates VSC (Vertical Sky Component) for windows and produce a set of diagrams that clearly explain the impact of a proposal on neighbouring amenity. We have recently been granted permission for a roof extension that had been previously submitted by others and refused due to a lack of clarification on light issues.
With larger projects we employ leading specialist consultants to inform the design process and to prepare sophisticated computer models that explain and justify our proposals.
A copy of the Law Commission Consultation Paper can be downloaded from the following link;