Rights of Light - May 08
The development of the law on light spans over 750 years and the complexity and antiquity of the law has provoked thoughts of reform.
There are two primary arguments for reform: first, the way in which rights of light can arise is complex and fragmented; and second, the state of the law can be a disincentive to development.
There are a number of ways in which rights of light can be acquired but the most common means of acquiring such rights are either by express grant (agreement by deed) or under Section 3 of the Prescription Act 1832. Of these two means of acquiring rights, most rights of light are claimed under the Prescription Act 1832.
To be successful in claiming rights under the Act, you must prove: -
1. continuous enjoyment of light for a period of twenty years;
2. no interruption, whether physical or notional. A notional interruption would be the registration of a light obstruction notice under the Rights of Light Act 1959 registered for one year;
3. enjoyment for the benefit of apertures in a building; and
4. enjoyment of the light without consent.
All four criteria must be satisfied if the right to light is to be successfully claimed.
If a party benefits from a right of light, the question that then needs to be asked in a case involving alleged interference with that right is whether the interference is sufficient to be actionable.
The method of assessing levels of light dates back to the early twentieth century and was designed to protect clerical workers, schoolchildren and other categories of worker who were doing “desk work”. The minimum standard is low, being one lumen which is the amount of illumination given by a one-foot candle over one foot. Applied at desk height (850mm), the desk worker is not entitled to a great deal of light under this standard.
Coupled with this is the 50/50 rule which states that if a room is already lit to fifty per cent or more of its area to the one lumen standard, any reduction in light below that area will be actionable.
The extent to which that interference is actionable is arbitrary. In Regan v Paul Properties Limited and Others [2007], the light to Mr Regan’s sitting room was reduced from sixty-seven per cent to forty-five per cent in area. The Court of Appeal granted an injunction requiring the developers to remove part of the offending top storey of the property opposite. In real terms, the loss was very small but the Court still granted an injunction.
By contrast, in Midtown Limited v City of London Real Property Company Limited [2005], the losses were large but affected commercial offices, so an injunction was refused. Many factors come into play in each case.
Against this background, it is necessary to look at the standards applicable in planning law. The BRE daylight and sunlight standards are based on totally different tests. The problem for developers is that the proposed development may comply with the BRE standards and therefore satisfy the local planning authority but this will not necessarily mean that the civil law standards are satisfied. In other words, a developer could be left with a planning consent that is compliant with planning standards but which can still be the target of a right of light action in the Civil Courts. A prudent developer will look at the issue of light at the pre-planning stage to ensure that the proposed development meets the civil law standard.
The remedies for a successful right of light claimant are either the grant of an injunction or the award of damages. When deciding whether or not to grant an injunction, the Court will consider factors such as whether the injury to the claimant’s land is small, whether the injury can be adequately compensated by a monetary payment, whether it would be oppressive to grant the injunction, and whether the claimant’s conduct renders it unjust to grant more than a financial award. A further factor is the speed with which the claimant acts. If the claimant stands by and allows building works to continue without protest, he runs the risk that the Court will take the view that it would no longer be equitable to grant the injunction.
If an injunction is not granted, damages will be awarded instead. The recent case of Tamares (Vincent Square) Limited v Fairpoint Properties (Vincent Square) Limited [2007] provided legal practitioners with guidance as to how the Court will quantify damages in right of light cases. In the Tamares case, the judge concluded that: -
• The owner of the right will normally be expected to receive some part of the likely profit from the commercial development.
• If there is no evidence of the likely size of the profit, the Court can do its best by awarding a suitable multiple of the damages for loss of amenity.
• If there is evidence of the likely size of the profit, the Court should normally award a sum that takes into account a fair percentage of the profit.
• The size of the award should not, in any event, be so large that the development would not have taken place had such a sum been payable.
• After arriving at a figure that takes into consideration all relevant factors, the Court needs to consider whether the “deal feels right”.
The outcome of the Tamares case has caused right of light surveyors to reflect carefully on their own, long-established methods of calculating the damages that might be awarded. What these surveyors have been doing is to consider the area of the room that has lost light, allow up to £5.00 per square foot and multiply it by an investment value to give a “book” value. They would then apply an enhancement to give something up to 2.5 times that book value.
However, whilst Tamares has provided some clarity as to how damages will be calculated, there are still a number of unanswered questions including, for example, the position where there are multiple claimants. Time will no doubt tell.
For further information on this or should you have any queries please contact Andrew Turner at andrew.turner@rickerbys.com.
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