Consenting to Infringement of Right of Light
17th September, 2012
A recent Court ruling has considered the effect of the wording of a transfer of part of a property which allowed development, even if it interfered with the access of light to the retained/neighbouring land.
In this note, we have a quick overview of rights of light; consider this case and its potential impact as well as discuss what may lie ahead in respect of rights of light.
What is a right of light?
A right of light is a right benefiting one piece of land enjoyed over land owned by another person. Such a right usually will have been specifically granted in writing, or acquired through long use of the right over a period of time.
Buildings which stand on the benefiting land are allowed to receive light into that building through particular openings (usually windows) across the other land.
The existence of such rights prevents the owner of the other land from substantially interfering with the access of light received, for example, by erecting a new building which obstructs the light.
How to overcome a right of light
Existing rights of light can cause headaches for developers as opposition from owners of neighbouring land with the benefit of such rights can cause delay in the development or even lead to a total redesign of the development and the need to obtain new planning permission.
Once a right of light is established, it is possible to obtain the owner’s consent to have his right infringed. It may be that he is willing to give up his right, or have it reduced in exchange for compensation. The owner of the benefiting land may give up or vary this right in return for a cash payment or other such benefit such as a right of way over the development land or another right.
As soon as an agreement is reached with the owner of the right of light, the exact terms should be documented in a formal deed of release and registered at the Land Registry.
It can, however, be somewhat difficult to establish the identity of potential owners of rights of light, particularly where the benefiting land is not registered.
A one off indemnity insurance policy to protect against any potential infringement of a right of light could be obtained. However, any negotiations with the owner of the benefiting land could mean that any insurance company will not cover the risk and could invalidate any policy that has been taken out previously.
The Decision in City Plaza Shares 1 Limited v Britel Fund Trustee Limited
If a transfer is intended to be used to defeat a right of light, it must be drafted very carefully to ensure that it is clear:-
- which rights have been enjoyed up to the date of transfer a
- which rights may be acquired after the transfer
- which land benefits from any rights of light and
- the nature of the building work that can be done.
This case considered a typical clause in a transfer of part of a property and the High Court has provided some guidance as to whether such clauses will be considered effective.
Often, where part of the land is being sold, the seller reserves the right to build on the retained land, even if doing so will obstruct access of light to buildings on the land transferred. The transfer of the land itself can operate as the necessary written consent to prevent a right of light being obtained, so long as it is worded appropriately.
Here, the land sold off was granted a right to build up to the extreme boundaries of the land transferred, notwithstanding such buildings may interfere with any right of light enjoyed by the buildings for the time being standing on the benefiting land.
The Court found that the clause was effective as a consent to prevent rights being acquired through long use. Accordingly, no right of light could be acquired over the land transferred after the date of the transfer. They also confirmed that even if the owners of either the sold or retained land transferred their interest to another party, this did not mean that rights of lights could start to be acquired from this point.
The Law Commission started work on its Right to Light Project in early 2012 and is expected to publish a consultation paper in early 2013.
Its recent work in general on rights benefiting land highlighted the need for further work on rights to light. This project will investigate whether the law by which rights to light are acquired and enforced provides and appropriate balance between landowners and developers. It will examine the relationship wit the planning system and whether the remedies available to the courts are reasonable, sufficient and proportionate.
If you have any concerns regarding rights of light, or would like more information as to how to overcome the difficulties they can sometimes pose, please do not hesitate to contact Emma McGlinchey at [email protected] or 01244 405567.