As with any easement, a right to light benefits one parcel of land, whilst burdening another. Most of the time, a right to light can be enjoyed by the benefitting landowner without them realising they have such a right. However, if a landowner seeks to develop the burdened land, a right to light might cause serious issues for the developer. If not considered early, rights to light can cause significant costs and delays.
What is a right to light?
A right to light is a type of easement granting one landowner the benefit of light at their property from the neighbouring or adjoining land. Rights to light can be obtained by:
- express grant (meaning that someone expressly grants the benefitting land the right to light from their land); or
- prescribed grant (meaning that the benefitting land has had the benefit of light from a neighbouring parcel of land for a period of 20 years without interruption).
How could this affect development?
As with any development programme, there may be adjoining freehold or leasehold landowners who object to a proposed development because it could impact on their enjoyment of their property. If a neighbouring landowner has a right to light over the development site, they have an additional tool to use when objecting to a new development.
If a neighbouring landowner with a right to light is able to prove that the light enjoyed on their land is going to be obstructed by a new development, they could seek to enforce their right to unobstructed light by applying for an injunction. If successful, an injunction can prevent a development from going ahead or require a development to be demolished or altered to prevent the light obstruction.
Of course, not every dispute in respect of a right to light will result in an injunction but that doesn’t mean that the viability of a development isn’t affected; a court may order damages to be payable by the developer if damages would be an adequate remedy to compensate a landowner for the loss of light.
Similarly, developers can negotiate with adjoining landowners to agree a release without any party applying for an injunction. However, a benefitting landowner may request a benefit in exchange for agreeing not to enforce the right (such as a cash sum or reciprocal development rights). This can become expensive and time-consuming if there are a number of adjoining landowners with rights to light. Leaseholders can also acquire their own rights to light which would need to be released in addition to the rights of the freeholder.
How do I prevent rights to light causing an issue?
In order to pre-empt any potential issues, a developer should consider possible rights to light in the early stages of any development. If identified early, development plans can be designed to reduce any risk of obstructing existing rights to light. Developers may be able to obtain insurance to cover any risk of a landowner enforcing their rights but any insurance is likely to be refused if contact has been made with the beneficiary. The developer should consider this carefully before requesting a release of the right. Early consideration is preferable to pulling down a new building after completion!