Rights of light explained

What are rights of light?

Rights of light (or a right to light) are complex, not least because of the legal language and principles involved. Also, there are some common misconceptions, which, hopefully, I clarify below.

The first thing to understand is what an ‘easement’ means. Put simply, it is a person’s right to use another person’s land in a particular way. We often associate the term with a right of way on foot or in a vehicle, but there are many types of easement.

Rights of light is an easement giving a property owner the right to enjoy the light passing over somebody else’s land and through ‘defined apertures’. Typically, defined apertures are windows in their building. So, suppose a new development (including a residential home extension) diminishes the light through that aperture to such an extent that it causes a nuisance. In that case, the property owner may have the right to take legal action.

It’s important to remember that rights of light is not a right to direct sunlight. Rather, it entitles the beneficiary to a minimum level of natural illumination, not the sun’s direct rays.

Rights of Light Act 1959

The most common way a property acquires rights of light is through ‘prescription‘. Generally, any property having uninterrupted enjoyment of light for more than 20 years acquires rights to light. This is sometimes referred to as the ‘right to light 20 year rule’.

But that can be defeated if, before the expiry of 20 years, the light is obstructed for one year continuously. Creating a physical obstruction to prevent a property from acquiring rights to light is usually impractical. It’s also not great for neighbourly relations! Therefore, the Rights to Light Act 1959 provides a notional obstruction mechanism. This is achieved by serving a notice on the property owner and registering a local land charge which will appear on a local search.

Injunction for rights of light

If legal action over rights of light is successful, two remedies are available to the court, damages and/or an injunction. The first involves awarding a sum of money to compensate for the loss. The second may require demolishing some or all of the new development unless some other structural change(s) can remedy the problem. That will inevitably prove very expensive.

The thinking for many years was that if a property owner had not taken prompt action to secure an injunction, the only remedy available to them was damages. However, a case decided in 2010 caused concern among developers as the court held that it was possible to obtain an injunction even after the completion of the new building. In another case, decided in 2014, the Supreme Court seemed to soften the position. They suggested courts should be more flexible and not award injunctions too readily.

But in a more recent case, decided in 2020, the court awarded an injunction to a property owner two years after completion of the offending work. The development will require cutting back at colossal inconvenience and expense. The court found that the developer had proceeded with full knowledge of the risk they were taking. In addition, they also found the developer had acted in an unneighbourly fashion.

The moral here is that if a developer – including a homeowner planning an extension – identifies a risk that the development affects rights of light, they should notify the affected property owner and engage with them to reach an amicable settlement. This might be through compensation or a re-design to rectify or mitigate the problem. Parties should properly document any agreement to avoid a subsequent dispute.

Rights of light in a garden

It’s a common misconception that a homeowner can acquire a right of light in their garden. However, the law provides no such right regarding land not built on. You may have express rights to light created by your property deeds. If so, the official copy of your title from the Land Registry will confirm that.

Also, your deeds may contain mutually enforceable covenants restricting both you and your neighbour from planting trees or high hedges. And even if there are no such restrictive covenants to protect you, there may be a statutory remedy through the local authority under the Anti-Social Behaviour Act 2003 and the High Hedges Regulations 2005. This legislation applies to owners and occupiers (so it includes tenants), where:

• there are two or more trees or shrubs over two metres high above ground level, which act as a barrier to light; and
• the reasonable enjoyment of part or all of a property, including a garden or part of a garden, is adversely affected by a tree or high hedge situated on neighbouring land; and
• the land adversely affected is domestic property.

Rights of light 45 degree rule

The 45 degree rule, also known as the 45 degree code or 45 degree guide, is a method used by local planning authorities to measure the impact of a proposed development on light to neighbouring properties. The rule is based on the idea that it’s reasonable to expect a certain level of light and unobstructed view from the window of a habitable room.

Rights of light surveyor

Given the inconvenience and expense of infringement, proactive rights of light planning is imperative. Today, surveyors have available to them sophisticated computer software to help. Such software uses mathematical calculations to assess whether and to what extent a proposed development will affect light to neighbouring properties.

Rights of light insurance

Rights of light insurance protects developers against financial losses that may arise in actual or threatened legal action concerning breach of a right to light. Most policies provide cover against:

• potential damages claims and costs;
• abortive and additional costs of works;
• diminution in value.

These policies tend to be bespoke and as claims can be substantial, premiums tend to be high.