RIGHT TO LIGHT COMPENSATION
Right to Light Compensation Claims
Natural light inside buildings is immensely important for comfortable living and working. We like and want natural light in our kitchens, and at our desks; people like to have a window seat and most people thoroughly dislike a windowless room. The amount of natural light that a window lets in depends upon what is outside that window, and particularly upon the proximity of other buildings.
The legal system recognises the value of natural light inside buildings, but because available space is finite it has to strike a balance between the importance of light and the importance of the construction of homes and offices. [The Law Commissions Report]
What is a Right to Light
A right to light is an easement*. [*A right to make some limited use of land belonging to someone else, or to receive something from that person’s land.]
It is a civil matter and is separate from daylight and sunlight as considered by Local Planning Authorities. Rights of light must therefore be considered even if the planning permission has been granted. Rights of light can affect both domestic and non-domestic properties – even non habitable rooms are capable of enjoying a right of light.
It is a right to receive sufficient natural illumination through defined apertures [windows] such that the rooms served by the apertures can be used for the ordinary purposes to which the building is likely to be put.
A right of light is a negative easement – it is not necessary for the dominant owner to take any steps to enjoy it.
Acquisition of Right to Light
In England and Wales a right to light is usually acquired under the Prescription Act 1832.
Under the Act a right to light usually occurs once light has been enjoyed through defined apertures of a building for an uninterrupted period of 20 years. Rights of light can also be acquired by less common means such as;
Time immemorial (the property existed since 1139)
Doctrine of lost modern grant
Implied and express rights
Remedies available for a breach
An infringement may give the neighboring owner the right to seek an injunction to have the proposed development reduced in size.
An injunction may also be sought to have a completed development, or part of it demolished.
If the loss of light is small and can be adequately compensated by money, a court may decide an award of right to light compensation instead of an injunction.
Right to Light compensation Calculation of damages
Rights of light surveyors use various formulae to arrive at figures for right to light compensation where an actionable loss of light has arisen and where an injunction is not being sought. Those formulae operate as an effective practical means of arriving at right to light compensation figures but are not founded on any legal principles. Where the level of damages is assessed by the court, the court will either award:
(i) common law damages; or
(ii) damages in lieu of an injunction.
At common law, the level of right to light compensation damages will be assessed by reference to the value of the loss suffered by the claimant, the most obvious measure of damages being the diminution in value of the property resulting from the loss of light. Difficulties arise in calculating that diminution, however, because there must be excluded from the calculation any reduction in light which is lawful – the damages should be calculated only by reference to the additional diminution in value resulting from the unlawful element of the reduction.
Damages calculated on that basis are frequently inadequate to represent proper recompense for the claimant’s loss. In such a case, the court may award damages in lieu of an injunction under section 50 of the Senior Courts Act 1981 rather than common law damages and would be likely to calculate the figure by reference to what would have been the result of a hypothetical negotiation between the parties for the release of the right, without either party holding the other to ransom. These are sometimes referred to as Wrotham Park damages following Wrotham Park Estates Co. Limited v. Parkside Homes Limited [1974] 1 WLR 798. The starting point for the calculation of the notional premium is the additional net profits which the developer will earn as a result of infringing the claimant’s rights.
Right to Light compensation Case Law
There have been a number of important right to light compensation key decisions handed down by the Courts over the years, including; Shelfer v City of London Electric Lighting Company (1895), Colls v Home and Colonial Stores (1904) and HKRUK II (CHC) v Heaney (2010).
If you need any further information on Right to Light claims, just get in touch.