The legal steps you can take if these rights are threatened
The level of natural light that comes through the windows of your home can make a huge difference to your enjoyment of your property. It is understandable then, that you will want to take action if that enjoyment is threatened by a neighbouring development that will block out the light.
In this article we explain what rights you have to light in your home, and what steps you can take if these rights are threatened.
What rights to light do you have?
You will usually have a legal right to light through the windows of any part of your home if it has received light from that direction for more than 20 years. This is known as a ‘right by prescription’.
Following the case of Colls v Home & Colonial Stores Limited (1904), you have the right to receive enough light through a window to enable you to have the ‘comfortable use and enjoyment’ of a room (note though that this is only a right to natural light and not to direct sunshine).
Over the years this test has been refined into what is known as the 50/50 rule, and it is now widely accepted by the courts that a ‘right to light’ claim can be brought if the light in the room is affected by an obstacle – which could be a tree, hedge, fence or a new development on adjoining land – and light is reduced by 50 per cent or more. Such a claim would allow you to apply for an injunction to have the obstacle stopped or removed, or to receive damages instead (see below).
How to determine if light has been or will be lost
A property surveyor will be able to confirm whether your right to light has been or is likely to be encroached on by a planned development or obstacle, and if it has been affected by the necessary amount.
When deciding whether a new development should be given the go ahead, council planning officers will often use the ’45-degree rule’. This involves drawing an imaginary horizontal line at 45-degrees from the centre-point of any window which could have its light impeded by the new building. If the line traverses the planned development, this implies light to the window will be obstructed and the development may be blocked.
The 45-degree rule, although frequently used in planning decisions, is not a legally binding rule. Although persuasive, it should not be the sole basis of your right to light claim and the claim should instead be mounted, if possible, under the 50/50 rule.
Do I have a right to light in my garden?
A right to light applies to buildings only, so you would not usually have cause for a right to light claim if an obstacle blocks the light to your garden. However, you may have an express right to light to your garden under your property deeds and you can check with HM Land Registry to discover if this applies to you.
Your deeds may also contain a mutually enforceable restrictive covenant which prevents both you and your neighbour from planting trees or high hedges. Even if no such restrictive covenant exists, you may have a cause of action under the High Hedges Regulations 2005 if the light to your garden is blocked out by a neighbour’s high greenery which spoils the reasonable enjoyment of any part of your property, including your garden.
What are the options?
It is sometimes important to take proactive steps to protect your right to light and to register an objection. For example, your right to light by prescription may be lost if an obstacle blocks your light for a year or more and you say nothing.
Similarly, if you receive a Light Obstruction Notice under the Rights of Light Act 1959 from a developer which relates to a proposed new building that could impede your right to light, you need to send in a written objection as soon as you receive it.
If you get wind of a proposed development on neighbouring property that may affect your right to light, you can object via the public consultation period of the planning process.
If an objection you made has been ignored – or indeed if an obstacle is already in place – you may apply to the court for an injunction. If awarded, the injunction will have the effect of stopping a proposed development, or could force the other party to remove the offending obstacle.
The court may, however, award damages in lieu of an injunction if the defendant can satisfy the tests laid out by A.L. Smith LJ in Shelfer v City of London Electric Light Company (1895). This would occur if:
- the injury to your legal rights is small;
- is one capable of being estimated in money;
- can be adequately compensated by a small money payment; and
- the case is one in which it would be oppressive to the defendant to grant your injunction and so damages in substitution for an injunction may be given.
Until the case of Coventry v Lawrence (2014), courts generally worked on the principle that an injunction will be awarded unless there are exceptional reasons to not do so. However, although the Supreme Court acknowledged in Coventry that the default position is that an injunction should be granted where a right is infringed, it ruled that damages may be awarded if the defendant can prove that they are a suitable alternative.
Remedies will therefore be decided on a case-by-case basis, but courts have shown that they are still fully prepared to grant injunctions – particularly if the affected property is residential and the property developer’s behaviour has not been exemplary.
How a solicitor can help
Our team is experienced in resolving disputes about involving rights to light. We will advise you of your options and refer you to a property surveyor to assess whether you have a valid case.
Court proceedings can be expensive and time-consuming, so it is always better to try to settle a right to light dispute through negotiation or a form of Alternative Dispute Resolution such as Mediation. Our team will guide you through the process to help you settle your dispute amicably, including directly negotiating where it is practical to do so with the other party on your behalf to reach a settlement which satisfies all sides without the need to go to court.
If all else fails and your case has to go to court, we will advise and represent you throughout the proceedings.
For further information, please contact Luke Edwards in the dispute resolution team on 01733 882800 or email [email protected].
Luke Edwards LLB, Solicitor
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