Right to Light

What is a right to light?

The law surrounding Rights to Light is a complex and often specialist area of property law. A Right to Light is a type of easement that entitles a landowner to enjoy the light that passes over someone else’s land and enters through a defined aperture in a building. Apertures include, but are not limited to, windows, skylights, and glass roofs.

The most common way that a right to light is acquired is by way of prescription, meaning you have had uninterrupted enjoyment of light for more than 20 years.  Once the right to light has been established, to exhibit that your right to light has been breached and to seek injunctive remedies it is not sufficient to show that there has been a net reduction in the amount of light available, the loss of light must also amount to a nuisance.

The scope of rights to light is limited, whereby there is no right to light in the following situations:

• In respect of land that has not been built upon.
• The right is for sufficient natural illumination, not to direct sun rays (which therefore has an impact on solar panels more recently).
• Rights of light do not protect uninterrupted views of the sky from the property
• They do not protect a view to a property
• They do not protect a property from being overlooked nor do they safeguard privacy
• A right is not an entitlement to receive the same amount of light to that received before the obstruction arose.

Reform

The right to light has been considered by Governments past and present However, this consideration has rarely led to any development. The Law Commission investigated the right to light in 2012, and recommended changes to enable a better balance between “the importance of light and the importance of the construction of homes and offices, and the provision of jobs, schools and other essentials”. Unfortunately, no recommendations were progressed any further.

To provide some protection to developers, right to light indemnity insurance has continued to grow ever more popular, as it provides cover for claims for diminution in value, and for the cost of litigation and settlement.

The government announced in July 2024 a new Planning and Infrastructure Bill to encourage Britain to continue and accelerate the building of high quality infrastructure and housing.  Whilst this Bill concentrates on many areas of construction and development, consideration will be given to the issue of rights to light to avoid private law rights interfering in the Government plans for further development. Right to light claims are becoming ever more popular and litigious, and therefore there has been an increase in indemnity insurance premiums. Many developers are beginning to question whether insurance remains a cost effective method to mitigate risk of claims of these sorts.

Section 203 and its powers

Section 203 of the Housing and Planning Act 2016 gives local authorities the power to override rights and easements. This includes rights to light easements and can be used by the local authority when appropriating development land for planning purposes. For those who have acquired the right to light, their rights are not terminated, however they will be unable to claim for a breach of their easement. Instead, section 204 allows for statutory compensation to be provided in consideration of the diminution of value of the neighbouring land.

Once the land has been appropriated, it can then be transferred back to the developer, who will continue to reap the benefit of section 203, so long as statutory compensation is paid.

Whilst this seems a fool-proof method for avoiding claims for breach of right to light, developers will need to prepare a convincing case to put to the local authority to convince them that they should use their powers. The local authority will often ask for evidence that the developers have exhausted all other avenues of resolution, and this is their final resort. It is worth noting that the local authority are more likely to exercise their powers where the development contains a public benefit element.

The new protocol

There has recently been a Rights of Light Protocol launched, which aims to provide a clear framework for developers to resolve potential rights of light claims both amicably and cost- sensitively. The Royal Institute of Chartered Surveyors (RICS) have endorsed the new protocol which forms part of its latest edition of the RICS Rights of Light guidance.

The steps as set out by the Right of Light Protocol are as follows:

1. Introductory letter and Initial Response: the introductory letter is to be written by the developer when they believe intended development may result in an interference with access to light. The letter must provide the following information:
   1. a brief summary of the proposed development
   2. where appropriate, copies of plans for the proposed development or a link to any planning application or consent on the local authority’s online portal
   3. a statement that the Developer wishes to take steps to ascertain the extent to which the development may impact the Adjoining Owner’s access to light and, if appropriate, to resolve any claims arising
   4. a request that the Adjoining Owner provides access to the Adjoining Owner’s property to the Developer’s Surveyor for the purpose of ascertaining room layouts and undertaking assessments
   5. a request that (where the Adjoining Owner is able to do so, and subject always to data privacy considerations) the Adjoining Owner provide details of any tenant or occupier of the Adjoining Owner’s property who should be contacted to arrange access
   6. a recommendation that the Adjoining Owner should appoint an independent Surveyor to act on its behalf. The letter can include an offer to provide a list of independent Surveyors on request but should make clear that the Adjoining Owner is ultimately free to appoint a Surveyor of its choice
   7. confirmation that the Developer will meet the Adjoining Owner’s reasonable fees for taking advice from a Surveyor up to a capped amount to be agreed between the Surveyors
   8. contact details for the Developer’s Surveyor.

The recipient of the Introductory Letter should aim to respond within a reasonable time period (no more than 21 days). They should confirm that they will arrange access for inspection purposes, provide details of any tenant or occupier, and confirm if they intend to instruct a surveyor to act on its behalf.

3. Exchange of Information: within 14 days of the initial response, the Developer’s Surveyor should make contact with the Adjoining Owners Surveyor to carry out necessary inspections.
4. Dispute Resolution: following those steps, an initial meeting should take place between both instructed surveyors to narrow issues. On that occasion, matters may be concluded, but if at any point either party considers that the discussions between Surveyors are breaking down, a Letter of Claim should be sent setting out their position. Parties are encouraged to avoid litigation by using methods of Alternative Dispute Resolution (ADR).

Prevention over cure

Developers may often seek advice about steps to be taken to stop rights to light accruing. Rights to light can be excluded when drafting a lease, for example the right to light can be reserved for the benefit of the landlord exclusively, meaning the tenant will be barred from making any potential claim.