Mustafa Sidki
By Mustafa Sidki, a partner in the commercial property team at Thackray Williams
The relaxation of planning laws by the government last December has laid the foundations for ‘right to light’ disputes to increase, particularly in London and other urban areas.
As developers seek to maximise space by building upwards, conflicts with neighbouring property owners over access to natural light are becoming more frequent and complex. While this is likely to mean more work for property litigators, non-contentious construction lawyers will have a growing role to play in enabling developments to go ahead smoothly.
Meeting government home-building targets
The government’s key policy of building 1.5 million new homes by 2030 led to the relaxation of planning restrictions announced in December 2024, aimed at expediting approval for a wide range of housing projects. The government’s strategy is to assign local councils mandatory housing targets, based upon available space and existing housing stock, and councils will be tasked with meeting a target of 370,000 new homes per year.
Areas with the greatest housing unaffordability and growth potential will see higher housing targets and developers will be required to focus more on social rent when building homes, ensuring affordable housing is prioritised.
Urban areas not only have the greatest issue with unaffordability, but also the least developable space. The reforms therefore endeavour to provide the facility to ‘build up’ into the airspace above buildings and utilise existing rights under residential leases to develop retained parts of residential buildings.
Right to light consequences of building up
Whilst it can be straightforward and cost-effective to develop on top of an existing block of flats using modular construction methods, developments that build up can fall foul of ‘right to light’ easements enjoyed by the owners of neighbouring properties.
These are usually established in accordance with the Prescription Act 1832, which prescribes that if the light has been enjoyed for 20 years without interruption, the right is deemed absolute and indefeasible unless the right was enjoyed by written consent or agreement.
Although the relaxation of planning restrictions may lead to the grant of planning permission, if a right to light is infringed, the beneficiary is still permitted to apply for an injunction against the person interfering with the right.
In such cases, the courts have discretion to award an injunction or damages – or both. Case law over recent years has acknowledged that, whilst an injunction should generally not be awarded where financial damages would be an adequate remedy, in many rights to light scenarios, an injunction will be required to protect and enforce a beneficiary’s rights.
The courts will not shy away from requiring a developer to abandon future development plans or, even worse, to demolish existing development, where there is a right to light infringement.
Measuring ‘right to light’
Although there is no standard measure of “sufficient light” that can be applied for all uses, there are rules of thumb. The starting point of an assessment to determine loss of light is the principle that the maximum light coming from the sky is the equivalent of 500 lumens per square foot (or 500-foot candles). The light from the sky is referred to as ‘the sky factor’ in the right of light calculations.
An adequately lit room is generally accepted to receive 0.2% of the sky factor over at least half of its area at working plane level (usually at table height). Therefore, a room should have one lumen per square foot over 50% of its floor area.
If a development results in less than half the room receiving a 0.2% sky factor, when it was above this threshold before the development, or where any material reduction occurs in rooms lit to below 50%, a potential claim for infringement of the right of light may well arise.
Consequences for litigators
We are already seeing a growing case load as a result of right of light infringements, and we anticipate enquiries will increase further as more ‘building up’ developments are proposed and get underway.
For example, we have an ongoing case arising from the modular construction of penthouse apartments on top of existing blocks in Bromley and Beckenham, made possible by the 2021 relaxation of planning laws.
The developers in these cases obtained planning permission and utilised rights they enjoyed in their leases to develop roof spaces, but they did not consider that there could be any loss of light to neighbouring properties. It’s an oversight that can ultimately prove both time consuming and costly.
Litigators can expect to be kept busy with enquiries from both sides of the fence. With owners of a right of light able to seek either a prohibitory injunction to prevent a development, or a mandatory injunction after it’s been completed for it to be demolished or cut back, enquiries might come from either those who have had their right of light infringed or developers or property owners looking to enable their planned development to go ahead or to protect their investment.
Litigators representing those whose right of light has been infringed will need to demonstrate that the loss of light amounts to a nuisance, requiring the claimant to prove that their property has been made substantially less comfortable and convenient than before, due to the reduction in light.
Conversely, those representing property developers or owners will be able to defend their clients’ interests if they can prove that any loss of light has not reduced the comfort and convenience of the property. Pragmatically, they may also find themselves negotiating settlements that limit any damages their client might have to pay.
The relative strengths of the two sides are crucial when it comes to fixing damages. Where loss of light will be small and/or the bargaining position of the owner of the right of light is limited, damages can normally be agreed in line with the diminution in the value of the property interest that benefits from the right of light.
However, if an injunction is a likely outcome if action for infringement is taken, a share of the developer’s gain from infringing the right of light is generally more appropriate.
The role of non-contentious construction lawyers
At the same time, non-contentious construction lawyers have a key role to play in facilitating the building up that will be necessary to hit the government’s homebuilding targets, steering clients through proactive steps to anticipate and manage potential right to light issues.
The 12-storey, £500m extension of the British Library, due for completion in 2029, is an example of how to manage rights of light infringements proactively, so that a planned development can go ahead with the agreement of neighbours.
The developers approached the owners of properties that might suffer a loss of light. Technical surveys were conducted with their agreement to understand how the development might impact the light enjoyed, with an offer of compensation being made by the British Library and the developers, as a gesture of neighbourly goodwill, without any admission of actionable injury.
The British Library and the developer also agreed to pay the legal and surveyor fees of the owners of the neighbouring properties. Their lawyers instructed their own surveyors to review the developer’s technical analysis using computer modelling to quantify the right of light being lost, which enabled them to negotiate an acceptable compensation, which in turn enabled this flagship development to proceed.
The value of erring on the side of caution
A right of light report enables developers and their professional advisers to decide if and when to start planning applications to local authorities and negotiations with the owners and occupiers of neighbouring properties benefiting from rights of light.
If a local authority grants planning permission, in theory, negotiations can be carried out with the owners of all freehold and leasehold interests in properties that will suffer from an infringement to the right of light. The right to light report will identify the people who should be contacted, but it is not always easy to identify all such parties.
Local authorities often require those wishing to build up to provide right of light reports with their planning applications, but as set out above, the granting of planning permission does not override a neighbour’s rights to light. Apart from anything else, the light levels that planning authorities might require can be lower than those that can be enforced through legal action against any breach of rights.
Prudent construction lawyers can help their clients minimise the risk of litigation by commissioning a detailed technical report before development starts and erring on the side of caution as to what the courts might enforce.
If you can reach an agreement with the owner or occupier with a right of light allowing you to go ahead with your development, you need to record the agreement by a deed of release, also known as a right of light agreement. The agreement must record the release of the right of light with sufficient details as to whether it is a full release or a partial release.
Once completed, the release should be registered at HM Land Registry as a notice on the register.
Using light obstruction notices to flush out objections
The Rights of Light Act 1959 provides a method for interrupting a right to light without the requirement for a physical obstruction (i.e. before any construction takes place).
Under the Act, a ‘light obstruction notice’ creates a notional obstruction which is registered as a local land charge. Affected parties then have one year in which to object, which they can do by showing that they have existing rights of light which the notional obstruction infringes. The process for obtaining and registering light obstruction notices currently remains somewhat cumbersome but can be beneficial on several different levels.
Light obstruction notices can be useful to flush out potential objections to development in advance and can eliminate possible objectors who fail to respond within the requisite timeframe; if a neighbour who has acquired prescriptive rights of light fails to object in time, the right is deemed to have been interrupted and the 20-year clock starts to run from zero again. Light obstruction notices can also be used tactically, to prevent a building that is nearing 20 years of age from acquiring prescriptive rights of light in the first place.
Conclusion
The government’s homebuilding drive – and the relaxation of planning restrictions designed to help it achieve its targets – is inevitably going to mean more right of light infringements in urban areas over the next few years.
Both contentious and non-contentious construction lawyers will have a vital role to play in ensuring that our changing urban landscapes respect the right of light easements enjoyed by property owners, or provide them with adequate damages for loss of light, while enabling the development needed to reduce housing scarcity and unaffordability.
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