Longer spring days can be revealing!
Development of houses on farmland or farm buildings can lead to some amazing homes which are a delight to live in. A lot of time and thought in these “grand designs” is applied to windows and glazing. Coupled with longer spring days and gardening time thoughts can now turn to rights to light.
So what is a right to light? It is a right to have light through an aperture being an aperture that light passes through. So it is not a right to enjoy sunlight in your garden, nor is it a right to a view. It is not a right to all the light that you might now enjoy or you may have had in the past as to qualify it must pass through an “aperture”. It is what is called a continuous easement, and so burdens one area of land or building to benefit another area of land or building. It can be extremely sensitive on developments and getting it wrong can have catastrophic consequences financially.
If a right to light is not expressly granted in the title deeds it can be acquired through prescription or long use over many years. There are many different types of prescriptive rights, and all may be defeated where consent is given by one party to another.
Other prescriptive rights include a right of access or a right to services.
Abandonment of a right to light can occur and also interestingly a right to light can be inherited from an old building. For example, converting an old farm building where there have been apertures allowing light through could mean prescriptive rights are already acquired and those could be very helpful on a conversion for residential purposes.
A right to light has an uncertain element, as probably the leading case of definition is a 1904 case where the Court stated that it means “…the owner or occupier has uninterrupted light through his ancient windows… according to the ordinary notions of mankind”. This is probably the best indicator of how difficult it is to quantify a right to light – “according to the ordinary notions of mankind” is pretty vague.
Because it is not always clear if there has been an infringement or reduction of a right to light, it is perhaps best to look at what remains after the interference to that right, not what has been actually taken away. There is potential guideline in the 50:50 rule, and there are specific professionals who quantify a reduction in right to light in terms of what it will cost a developer in lost revenue or capital.
Also, bear in mind that an injunction and not money damages are the solution here. An injunction is a costly legal action to stop the building or reduction of the right. Courts despair of highhanded developers and can determine that a building has to be pulled down if it is infringing a right to light.
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