Rights of light: RICS guidance overview
Seeing the light
22 July 2016
Michael Ney outlines new RICS guidance on the often controversial issue of rights of light
Do you have clients or potential clients with questions about rights of light?
Questions regarding light are becoming more common. There are several factors that contribute to this: the availability of information on the internet means that more people are aware of the issue; people are much more likely to complain nowadays than in the past; and pressure from the government requires local planning authorities to seek denser development in response to the housing shortage, meaning that buildings are built higher and closer to others than before.
The most common misconception is that the planning process deals with the matter of light. This leads to the mistaken belief that once planning consent has been granted, there is nothing further that affected neighbours can do about the loss of light or overshadowing that they might, or will, suffer.
The most common misconception is that the planning process deals with the matter of light
Many members may also be unclear as to what planners can and cannot do, so they find themselves uncertain as to what advice to give to clients. Most local authorities do have policies in their local plans, or in supplementary planning documents made under those plans, to protect the amenities of nearby residential properties. Some authorities, such as Westminster City Council, also protect the amenities of educational buildings. Planners can thus consider the effects that any proposals have on surrounding buildings, and may use that information to inform their decisions. This matter is dealt with in greater detail in the guidance note on Daylighting and Sunlighting.
In England, Wales, Northern Ireland and the Republic of Ireland, where a building – whether residential, commercial or industrial – has benefited from a flow of light from over someone else’s land through its defined apertures, usually windows, for an uninterrupted period of 20 years, the building normally obtains an easement to that flow of light by operation of the Prescription Act 1832 or the Prescription (Ireland) Act 1832. There are other methods of obtaining such an easement but these are more fully addressed in the Rights of Light guidance note. Similarly, there are restrictions on obtaining prescriptive easements, such as where there is common ownership of the lands or where land over which the light flows belongs to the Crown.
Where an easement has been established, and the owner of the land over which the light flows wishes to build in such a way as to reduce the flow of light through the windows significantly, then the affected owner can take legal action to protect their easement. Indeed, it is the only way they can protect their easement, because the planning authority cannot assist them.
Dealing with matters of rights of light can be fiendishly difficult. Does the dominant owner really have an easement? Is that easement really adversely affected? Are there reservations preventing them gaining rights of light and air? Do they have the benefit of the Housing Act 1985, Schedule 2? If the affected property’s owner has an easement and it really is affected, how should they defend their rights? Can they afford to go to law? Can they afford to take the risk of not winning?
If acting for a developer, the questions are just as risky:
- does the neighbour have rights and are they affected?
- if they were to take legal action and win, would the court be likely to grant an injunction or an award of compensation?
- might the development scheme need scaling back?
- if compensation is awarded, would that be based on a share of the developer’s profit?
- can a developing owner insure the risk or should they approach the affected neighbours and offer them money?
- doesn’t planning permission deal with all such matters in any case?
James Kavanagh MRICS, Director RICS Land Group, writes:
The chartered surveyor has an established role as an expert dealing with the enjoyment of natural light in the built environment. This guidance note deals solely with easements known as "rights of light" and the approach to be adopted by surveyors. It is aimed principally towards the practitioner who may not be an experienced specialist in rights of light, although it is hoped that all chartered surveyors will find the guidance useful.
For the purpose of this guidance note, a right to light is a private, legally enforceable easement or right to a minimum level of natural illumination. This right applies through a "defined aperture", usually a window opening, whether conferred by express or implied grant or obtained at common law by a process of long, uninterrupted enjoyment known as "prescription". As with all easements, there is a dominant tenement that enjoys the rights and a servient tenement that is subject to and carries the burden of their existence.
The purpose of this guidance note is to assist the surveyor in the following:
The aim of the RICS Boundaries and Party Walls Working Group (BPWWG) and RICS Dispute Resolution Service is to encourage private individuals, businesses and professional advisors, particularly in the legal profession, to select a qualified chartered surveyor who can review a proposed scheme and give expert advice on the potential implications of loss of light.
Some individuals and businesses may seek advice from unqualified persons, often to the detriment of accurately identifying the problem and invariably leading to unnecessary loss or expense or ill-founded litigation. Accurate information and assessment at an early stage can assist in obtaining a prompt and cost-effective resolution.
The 2nd edition of the guidance note has been updated with recent case law and industry best practice, and includes an expanded section on the intricacies of right to light spatial measurement (three-dimensional modelling) and the method of assessment (Waldram diagrams), as well as "loss" evaluation and compensation.
It also contains a new appendix explaining rights of light and trees, while expanded sections on appropriate procedures, legal issues, research, instructions, insurance and alternative dispute resolution help strengthen the guidance note and bring it into line with other dispute-related guidance titles from RICS such as Daylighting and Sunlighting 1st edition (2011), Boundaries 3rd edition (2014) and Party Walls 6th edition (2011).
The new edition of the Rights of Light guidance note also contains in-depth appendices that should help both the expert practitioner and those wanting to learn more. The appendices themselves include sample forms, letters (such as form of release and scope of service), checklists (insurance) and survey specifications (measured survey and a Rights of Light customised survey detail accuracy table), as well as notices and agreements (RICS Model Mediation Settlement Agreement).
For further information on daylight and sunlight, see also the Building Research Establishment (BRE) publication Site layout planning for daylight and sunlight: a guide to good practice (BR 209, current edition).
To help members who may be getting more enquiries on rights of light, the rights of light sub-panel of the Boundaries and Party Walls Working Group (BPWWG), under the chairmanship of John Lytton FRICS, has drafted a new guidance note recommending best practice for members. This note was published in March and is now available for download to members. Whether you deal with the matter in house or pass it on to another practice, the sub-panel recommends the new guidance note to all members so that they can give the best advice to their clients.
Servitudes of light in Scottish Law are different from easements in England and Wales or Ireland, though this is not the case in relation to daylight and sunlight because most Scottish planning authorities, as well as English, Welsh and Irish ones, use the criteria set out in the Daylighting and Sunlighting guidance note, and you should study this carefully when advising on planning matters.
There are also recent and forthcoming changes in the Law of the Tenement, so the BPWWG cannot advise members on the application of servitudes of light in Scotland in this guidance note. The technical aspects may be of some assistance, but the summary of the law is quite different.
Related competencies include:
This feature was taken from the RICS Land journal (June/July 2016)