Let There Be Light - Fiat Lux! What You Need To Know About The Right To Light.

The easement of light sits outside the planning system and after

rights of way, is the most common private easement for developers

to grapple with. Even so, the rules and concepts are often

misunderstood and commonly confused with either sunlight and

daylight calculations used in the planning system, or techniques

used to consider natural light in designs. The developer must

accept that private rights exist, therefore, on a confined urban

development, a high density scheme will need to factor from the

feasibility stage common law ROL, particularly given a rise in the

awareness of the public in respect of the easement of light.

A right of light is the right to receive light over another

person's land to particular windows in a building. It is not a

right to prevent a neighbour from reducing in any way the amount of

the light reaching the windows in question. It is a right merely to

preserve light to the room served by the window such that the light

to the room served by the window as is sufficient for its

"comfortable or beneficial use". What would be considered

to be sufficient in this context may vary depending on whether the

affected property is used for commercial or for domestic purposes.

As a broad rule, it is generally accepted that a right of action

will arise if the result of the obstruction is that it will leave

less than 50% of the affected room adequately lit. For these

purposes, adequate lighting is considered to be one lumen at 850mm

above floor level which is equivalent to 0.2% of the light

available from the whole dome of the sky.

Issues associated with ROL can be awkward particularly given the

emergence of tensions in the case law, especially in the field of

the remedies available to claimants in ROL cases and the increasing

emphasis on re-developing brown field sites – this has

made ROL a hot topic for the courts in recent years. This and the

credit crunch have combined to produce several instances of

prospective buyers using ROL to negotiate reductions in the

purchase price for land with some development potential.

Most of the relevant cases in this area were decided under what

is known as the "Lord Cairns Act" (Chancery Amendment Act

1858). This gives the court the power to award damages in addition

to, or in substitution for, an injunction.

The prevailing view used to be that the power to award damages

under the LCA only arose where the court had jurisdiction to grant

an injunction at the time the claim was issued. However, following

Experience Hendrix v PPX Enterprises Inc (2003), it would

seem that damages could be awarded even where the claimant would

not be awarded an injunction.

The foremost case in this area is Wrotham Park Estate

Company Limited v Parkside Homes Limited (1974). The aim of

what has become known as Wrotham Park damages (or

"buy out" / "wayleave" damages) is to consider

the sum that would have been arrived at in a haggle between the two

parties as the price for the claimant to relax its rights, each

making reasonable use of their respective bargaining positions, but

without seeking a ransom.

Despite some debate as to the basis for such damages, it is

accepted wisdom that they are designed to be compensatory, rather

than punitive. The Wrotham Park decision was described by

the House of Lords in Attorney General v Blake as "a

shining beacon" (pardon the pun) showing that in contract as

well as tort, damages are not necessarily confined to recoupment of

financial loss, but can be measured by the advantage to the

defendant from the breach.

The sums paid to infringed parties in ROL claims contrast

enormously given ROL disputes are increasingly common as developers

compete for space in the metropolitan...