Rights to light:
Rights of light have to be acquired. This may be by the passage of time, purchase or assignment. If they are assigned this will normally be covenanted in the deeds in the same way as other easements (e.g.: rights of access). However it is relatively rare for rights of light to be assigned in this way. To become established the light has to be enjoyed uninterrupted for a period of twenty years. The minimum period for an interruption to frustrate the establishment of a right to light is a year and a day, consequently after nineteen years it is no longer possible for the right to be denied although not yet formally acquired.
There are some important qualifications that must be met: Rights relate to the light that is enjoyed within a room-space within a building, it is assessed on its quantity not its quality and its suitability for the carrying out of tasks within the room and it relates to the light that enters the building through an opening.
Each of these is an important factor in establishing and maintaining the right to light. There is no right to a view, or to a particular quality of light. If a window opening were to be enlarged the right to light would only relate to the unenlarged window until the enlarged one had been in place long enough to acquire its own rights. If a window were to be reduced in size it is likely to be judged as a voluntary relinquishment of rights pertaining to the part of the window that has been closed off and, unless the size reduction has been temporary, if the original size is reinstated the full original rights of light would not be similarly reinstated. If a window is closed off and a new opening made to take its place, rights to light may have been lost as a consequence of the linkage of the rights with openings. Generally light levels are assessed at worktop or tabletop height as this is the physical height at which light is considered to be most important. The established level of light that can be claimed as a right can be no greater than that which has been enjoyed for the whole of the twenty year period. Hence, if an obstruction reduced light levels for more than a year and a day during the twenty year qualifying period, rights of light will be limited to light levels within an affected room-space when the obstruction was in place until a period of twenty years has elapsed since its removal.
As with openings, alteration to internal wall positions may not be accepted as defining room-spaces until the qualifying twenty year period has elapsed, particularly if the room is enlarged. Similarly if walls are moved in such a way that windows serve different room spaces after the change the original configuration remains relevant for any assessment until new rights have been established by the passage of time.
Thus it is clear that as well as becoming established, rights of light can be lost or forfeited.
A right to light is normally relevant where the light passes across a neighbours land. It can reduce or prevent the building or erection of a structure on the neighbours land if that would reduce light entering the building through the relevant openings. It is normally at this point that the matters become subject to legal dispute. In weighing up the infringement of the right to light there will be consideration of the validity of the claim to the rights – qualifying periods, openings and room-spaces - and of the effect of the development on light levels within the property. Matters are dealt with in civil courts under common law and the Prescription Act. Recompense can be by monetary settlement or by an order to remove the offending obstruction. Which is deemed appropriate will depend on the scale of the infringement and the degree of inconvenience or discomfort arising from the loss of light.
Historically demonstration of the light lost has been subject of complex calculations. Today software programs can emulate the changes to light levels brought about by an obstruction to a high degree of accuracy. Alternatively, where possible, light level readings taken within the affected room-space(s) before and after the light is obstructed are reliable, provided that they are taken under comparable conditions. The level of light required for tasks is an important determinant and open to dispute and discussion. Light levels have not been defined in terms of absolute physical measurements and are subject to judgement being made at the time of the dispute. Generally we tend to expect better light levels today than were expected in the past.
One 'rule of thumb' that is sometimes applied is the so-called forty-five degree rule. A pair of lines drawn from the centre of the cill of the opening at 45° to the perpendicular to the opening, one either side of the perpendicular and defining an area with ninety degrees between its two sides. Any obstruction placed within the space defined by those two forty-five degree lines could cause a loss of light. However there has also to be a vertical component to the assessment as most light is derived from the sky and this tends not to be considered in the rule, making it of limited value. Showing that there is no infringement of the 'rule' does not demonstrate that there is no infringement of the right of light. Equally showing that there is an infringement of the rule does not demonstrate that a right of light will be infringed.
From reading the foregoing it will be seen that rights of light can be an important factor in the design and construction of new buildings and other works. It will also be seen that the qualifying period for the establishment of rights allows a neighbouring land owner to frustrate the process of establishing rights were light passes over his land. He can erect an obstruction which cuts off the light during the twenty year period, provided that his obstruction remains there for more than a year and a day. This is unnecessary for light that would fall on land that is open or undeveloped as rights of light are tied to openings in buildings and cannot be acquired without them. As an alternative to a physical obstruction a landowner can serve a notice on a neighbouring building owner advising the latter that he is denying him the light that passes over the landowner's land. There is a particular procedure for the issue of the notices that must be followed for the notice to be valid. As the period of denial has to be more than a year and a day within the twenty years it must start before the end of the nineteenth year during which the light has been enjoyed.
Light is considered as a commodity in law. It can therefore be bought, sold or traded as other commodities. Whilst the right to light is established as described above in normal circumstances it can be subject to other constraints. For example: the conveyance of a property can include covenanted restrictions that prevent rights being acquired to light passing over other land, enabling neighbouring buildings to be freely erected at a later date. The wording of the covenant may imply the restriction as a consequence of another matter without specifically mentioning rights of light. However it could then be subject to interpretation by the courts.
Rights of light are not affected by planning applications and decisions and are not, of themselves, grounds for planning refusals. The Planning Authority will often take into account their assessment of the impact of development on the enjoyment of light by neighbours but this could be as part of an overall consideration of amenity enjoyed by the neighbour(s). It is likely to be linked to the effect of building mass and location in relation to areas of the neighbours' property that are particularly susceptible. Consequently, although the infringement of a right to light may not lead to a planning refusal, loss of light may be cited in the grounds for refusal as a pertinent matter.
Rights of light are a important asset for many properties.
They are enshrined in common law and under the Prescription Act of 1832.
They can be established by a continuous period of enjoyment.
They can be granted or assigned.
Establishment can be prevented by either physical blocking of the light or by issuing a notice under the Rights of Light Act 1959 provided that the blocking is for an adequate period of time before the end of the period of establishment.
Rights are acquired for light entering a building through an opening.
There are no rights of light for open spaces.
Infringement of rights can be compensated by money or by injunction requiring an offending structure to be removed.
They are not affected by the grant of planning permission.
It is often considered that a small reduction in light levels is acceptable although this will depend on circumstances.
The information in this document is provided in good faith as general guidance. It is not a definitive statement of the law. Peter Jackson Architects its staff and associates cannot be held responsible for damages or liabilities arising from the use or misuse of this information. You are advised to seek qualified professional advice on these and other matters relating to any project before undertaking any work or making any financial commitment.