Welcome
Kay Evans
Director
kay.evans@haroldbenjamin.com
Rights of Light
Mark Davies - Associate Director of UK Underwriting
17th June 2015
Rights of Light - Topics
What is a Right of Light?
How is a Right of Light
created or defeated?
Why are Rights of Light so
important?
What is interference
with a Right of Light?
Remedies for interfering
with Rights of Light
What is a Right of Light?
Is the right to enjoy natural light over someone else’s land
through defined apertures (windows etc) to allow room to be
used for its ordinary purpose – enough for comfortable use –
Colls v Home & Colonial Stores 1904
A Right of Light allows A to stop B from interfering with
its light by showing that B is causing a nuisance to A.
Nothing to do with Sunlight or Daylight or view from a
building
No legal measure of enough light exists – caselaw has
evolved - 0.2% sky factor as at 850mm above floor level
How is a Right of Light created?
By Deed
Noted on Title
By Implied Grant/
Reservation
S62 LPA 1925 – exception
& reservation for retained
land
By Prescription
More than 20 years of legal
enjoyment by an aperture
(eg a window)
How is a Right of Light defeated?
By Unity of ownership –
Suspends right of light
By physical impediment
unchallenged for a year
PA1832 sec 4
By Light Obstruction
Notice – Rights of Light
Act 1959
By Agreement between
parties
By change in the
position of benefitting
window
By Statutory powers – CPO
or Appropriation T+CP 1990
sec 237
Why are Rights of Light so important?
Developing Town/City Sites
Blocking natural light out to neighbours
More light in building – increased value
Increased Capital/rental returns
ROL affects all types of
development
Loss of light - less
Property value
What is interference with Rights of Light?
Substantial interference with adequate light – reduction of
adequate light to below 50% of area of room – actionable
Factors to be taken into account
Rooms already badly lit – every bit of light precious
Residential - Courts more inclined to require 50 – 55% of room
well lit – less means interference substantial – less so with
commercial uses – changing to same for both
> % area of loss of usable floor area > actionable
interference
Interrelationship – Liability/injunction/damages
Remedies for Interference
Injunction – stop threatened interference or pull down
structure causing interference
Damages – Compensate loss due to interference or
lost value of right to get injunction – book valuation or %
of loss of Developer’s profits
Declaration of Court - status of rights claimed – meaning
of deeds + validity or effect of Light Obstruction Notice
Rectification of Registers – Claims for Indemnity against
Land Registry - costs
Remedies - Indemnity Policies
Cover – diminution in
value of Property
Documents of title
for site and affected
Properties
ROL Surveyors Report
Copies of any
correspondence with
affected parties
Copy Planning + letters
of objection
Photos of site and
Surrounds – age of
buildings and apertures
Questions re underwriting policies
Any connection between Insured and
owners/occupiers of affected properties?
Have there been any adverse approaches made
by any third party claiming rights of light?
Amount of cover required? Does it reflect the GDV or
an amount to cover compensation - No correlation
between GDV and the damages awarded by Courts
Have there been any complaints from neighbours?
Copy Planning to be implemented - history for site
and surrounds? What was previous use?
Questions re underwriting policies
Is there anything known about potential
rights of light claims by any third parties?
Have the terms and conditions of any previous
right of light deeds been complied with and will
the Developer be able to comply with them?
Legal report as to Rights of Light by lawyers acting
for Insured
Is there the possibility of a Light Obstruction
Notice being served on any owners/occupiers of
affected buildings? Objection may equal claim
Thank you
Mark Davies
Mark.davies@stewart.com
Rights of Light
-Current Case Law and Future
Reform
Robert Kelly – Commercial Business Development Manager
17th June 2015
Injunctions after Regan v Paul and Heaney:
• Pre Regan
− Overall principle to find “fair result”
• Regan v Paul Properties (2007)
− High Court awarded damages
− Court of Appeal granted injunction
− Behaviour of parties?
• HKRUK II (CHC) v Heaney (2010)
− High Court put onus on developer to show why
injunction should not be granted
− “Shelfer Test”
− Shelfer v City of London Electrical Lighting Company
(1895)
− (i) Injury to plaintiff rights small (ii) capable of being
estimated in money (iii) can be adequately compensated
by money payment (iv) would be oppressive to
dependant to grant injunction
− Injury to Mr Heaney’s light was less than 1%
− Cost of removing offending floors £1,000,000+
− Settled before Court of Appeal hearing
• Coventry and others v Lawrence and another
(2014)
− Noise not light
− “discretion….should not…be fettered”
− “each case is….fact sensitive”
• Scott v Aimiuwu (2015)
− Central London Court case
− First reported Light case since Coventry
− Court held that damages were sufficient as:
− Interference was to secondary accommodation
− Injunction to knock down would be “oppressive” and “punitive”
− No hard and fast 50/50 rule
− Damages were compensatory - £12,000 loss x 2.5
Reform:
• Rights to Light (Law Com No 356)
− Government Response by December 2015
• Prescription
− Statutory 20 years of qualifying use
• Abandonment
− No use for 5 years would constitute abandonment
• Modification
− All rights of light ( whether before or after reform)
are open to modification
• Notice of Proposed Obstruction (NPO)
− Developer can serve notice that it expects to obstruct
− Owner must commence proceedings for injunction within 8
months or lose the right to get an injunction
− Not intended to replace negotiation but can be used to
stimulate negotiations
• Statutory Test for damages or injunction
− Proportionality
− Conduct of parties
− Public interest
− Impact of injunction
• No statutory test for infringement of right
− Law Commission think flexibility is good
What to do:
• Right of Light Report
− Identification
− Calculation
− Compensation
• Negotiate
− Courts take account of “bad behaviour”
− Law Commission seem to agree
− Agreement
• Insurance
− “bad behaviour”?
− Cover
−
−
−
−
Damages and compensation including costs and expenses
Alteration or demolition
Diminution of market value
Costs incurred and rendered abortive
• Level of Cover
− Value of light lost
− Percentage of developers profit
• Disclosure
− Read policy carefully. Restrictions on Part Wall Act
applications
• Agreed Conduct Clauses
Thank you
Robert Kelly
Mobile: 07415240703
robert.kelly@stewart.com
Kay Evans
Director
kay.evans@haroldbenjamin.com