A LEGAL RIGHT TO LIGHT
Buildings can obtain a legal right to light which then allows an owner to take legal action against a development which would cause a specific loss of light through existing windows of affected rooms. The legal means of assessing whether there has been (or will be) a legal ‘injury’ to a neighbour due to a loss of light is a complicated one based upon an assessment of the amount of natural light left in a room rather than being a measure of the amount of light lost.
The case law relating to the legal right to light is very complex and the financial implications of not adequately considering right to light issues at an early stage can be extremely significant, potentially resulting in an injunction to stop the relevant construction works and/or possibly very large compensation payments to right to light affected neighbours.
It is, therefore, essential that developers consider right to light matters at an early stage – at Smith Marston LLP, we can provide risk assessment reports and advise regarding building design to minimise or eliminate potential right to light claims. |
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We are able to carry out the very complex calculations to make an assessment of right to light issues using sophisticated and powerful computer software.
Alternatively, we can advise neighbours to a development whose right to light may be affected. In this regard, we can negotiate with a developer on the neighbour's behalf if a legal injury has occured or we can act as an Expert Witness in any subsequent legal claim if an out-of-court settlement cannot be agreed.
LIGHT OBSTRUCTION NOTICES
The most common means of obtaining a legal right to light is by ‘prescription’ where a window has enjoyed uninterrupted light through it for a continuous period of at least 20 years. A window (or windows) within a property can be prevented from obtaining a legal right to light in this way by an interruption to the light to the window within this 20 year period. This interruption can either be in the form of a genuine physical obstruction, such as a fence, hoarding or even a new building. Alternatively, however, The Rights of Light Act 1959 allows for a notional obstruction to be created an Registered as a Land Charge – this is known as a Light Obstruction Notice.
Any interruption to the light to a window needs to be for a period of 12 months and so, in order to achieve this, any light obstruction (be it physical or notional) must be commenced within 19 years and 1 day of the start of the prescriptive period. Once a Light Obstruction Notice has been served, the affected neighbour has one year to contest it. If not, then the Light Obstruction Notice would remain for the 12 months, cancel out any preceding prescriptive period and so re-start the 20 year process necessary to obtain a legal right to light.
It can be very useful for a landowner and/or proposed developer to prevent a neighbouring property from obtaining a right to light which might otherwise limit the size, location or extent of a proposed development on the land.
At Smith Marston LLP, we can assist with the service and registering of a Light Obstruction Notice or advise with regards to contesting one. BRE 209 DAYLIGHT & SUNLIGHT TESTS
Local Authority Planning Departments are able to request a developer to provide an assessment of daylight and sunlight. Such daylight and sunlight assessments are based upon the BRE Digest 209, entitled Site Layout Planning for Daylight and Sunlight. This requires assessments of diffuse daylighting to windows, sunlight to windows and sunlight to open spaces and gardens.
It should be noted that these daylight and sunlight assessment requirements are completely separate from the legal right to light, and satisfaction of these daylight and sunlight assessment tests does not necessarily mean that there may not still be legal right to light issues with neighbours.
For further information on daylight and sunlight assessments please refer to our separate page on this subject - Daylight and Sunlight Assessments.
SITE PLANNING
At Smith Marston LLP, we can give advice to developers on legal right to light and daylight and sunlight assessments at an early site planning stage in order to maximise the use of a site whilst avoiding issues relating to the daylight and sunlight assessment tests plus minimising the risk of any legal rights to light claims from neighbours.
We are also able to advise regarding site layouts in respect of optimising the use of sunlight to create comfortable and environmentally-friendly buildings including making best use of ‘solar gain’ heating to reduce energy consumption. |
