In this article, our experienced commercial property solicitors walk you through the concept of right to light, the extent to which it can apply and what stages of the development it impacts. We consider potential solutions should your project be likely to breach another party’s right to light, what steps you can take to prevent this as well as how to handle any complaints received regarding such right. We explore in detail the nature of right to light disputes, the affect it can have on the project and legal consequences of the same.
It is crucial that such a right is not overlooked given its potential impact on your development, but the good news is that with the right legal help, you can achieve a much smoother, straightforward project.
Contents:
- What is right to light?
- When does right to light apply?
- Can the right to light extend to outdoor spaces in commercial developments?
- How does the right to light impact the design phase of commercial projects?
- Can the right to light be waived or modified through agreements?
- What steps should developers take to prevent potential right to light issues?
- What happens if I receive a right to light complaint during construction?
- Disputes involving right to light
- What evidence do developers need to prove compliance?
- How to resolve a right to light dispute
- What remedies are available if a right to light is infringed?
- Summary
What is right to light?
The right to light is a legal easement that grants a property owner the right to receive light passing over another person's land through specific openings, usually windows in their building. It is worth noting that the right to light does not guarantee the affected party direct sunlight access. Instead, it provides the recipient with a minimum level of natural light.
When does right to light apply?
The right generally applies when a neighbouring property's windows or openings are obstructed or affected by a new development to such an extent that it is deemed a nuisance. There must be a reasonable expectation of natural illumination, windows or openings to storage areas, garages and communal areas are not typically taken into account.
It is not the case that everyone simply has an automatic right to light. The property in question has to “acquire” the right to light, which is most commonly by prescription (ie the property must have enjoyed uninterrupted access to light for 20 years). Other ways in which a property can benefit from a right to light is through an express grant (usually recorded in title deeds), an implied grant, a lost modern grant or through the passage of time.
Can the right to light extend to outdoor spaces in commercial developments?
The right to light is applicable not just to residential buildings but also to commercial properties where there is an anticipated need for daylight. This means that establishments such as schools, hospitals, hotels and other business sites may also be afforded the protection. The right to light law specifically refers to light passing through a window, or other ‘defined aperture’ in a building; it is generally agreed that construction on an adjacent property that obstructs light to a garden or parking lot does not apply.
It is important to check if any express rights to receive light exist in property deeds, or mutually enforceable restrictive covenants between parties preventing obstruction of the same.
How does the right to light impact the design phase of commercial projects?
The design phase of the commercial project is a crucial stage in which to consider the impact of the proposed development on the rights to light of neighbouring / surrounding land. Here you have the ideal opportunity to consult with designers, architects and right to light surveyors in order to assess the potential impact of your proposed building. This may involve conducting light impact studies, analysing and altering building orientations, or adjusting the height and placement of windows to minimise any negative effects on neighboring properties' access to natural light. Once the project has started and you are erecting buildings, the impact of any right to light claims can be very expensive and disruptive. It is always best to be proactive rather than reactive in this scenario.
Can the right to light be waived or modified through agreements?
Both parties may explore the option of formally waiving or modifying any rights to light by recording such an agreement in a binding contract. It may be the case that the affected party requires some form of compensation or payment for agreeing to surrender their rights. The terms of any such contract or agreement should be very carefully worded, expertly drafted and properly executed to prevent future disputes. Whether you should engage with an injured party is a critical question which needs to be considered in the context of the development. This should be discussed with your lawyers as there could be material financial consequences for a developer if not properly considered. If you approach the injured party and they are not co-operative then you are risking your development and the possibility of procuring any right to light insurance.
What steps should developers take to prevent potential right to light issues?
- Conduct assessments: a thorough initial assessment of the surrounding area at the outset of the project can help you identify existing buildings and structures that may be affected by the development.
- Consult a surveyor: consider engaging a specialist right to light surveyor to assess the impact and extent of the development infringing upon light access of neighbouring properties. They will produce a report for you.
- Conscious design: design the development in a way that maintains adequate access to light for neighbouring properties, such as using setbacks, height restrictions, and building orientation.
- Legal input: consult with legal experts to discuss your options to mitigate the risk of potential legal disputes.
- Insurance: developers often pay for insurance to protect against financial losses from breach to right claims. Such policies can cover potential damage claims and costs, abortive and or additional costs of work to address the breach, and any diminution in value to your project / development. This is a niche area in the insurance market and one you will need to discuss with your lawyer. If you are procuring funding, your lender will also need to be considered by your lawyers.
What happens if I receive a right to light complaint during construction?
It can be both frustrating and daunting to receive a right to light complaint once you have started the construction phase of the project. Permissions would have been obtained for the particular design and build that you are following, and such claims can potentially mean a huge setback and in a worse case scenario, an injunction to stop works on site. It is essential that you seek legal advice immediately to explore your options.
Disputes involving right to light
Right to light disputes can have far-reaching financial and practical implications for developers. This reinforces why it is important that any potential issues in this regard are considered and addressed at the outset of the project. A valid right to light claim pleaded by affected parties could result in:
- Financial loss: you may need to pay the other side damages or an out of court settlement if it is not possible to make alterations to the build design.
- Legal fees: in addition to any financial payouts in the form of damages or out of court settlements, you will be responsible for paying your legal representative’s fees and in some cases, you may also be liable to pay the other party’s legal costs.
- Amendments: you may need to adjust and alter your original build design so that it no longer infringes the rights to light of affected parties. This might also mean revisiting your planning permission depending on the extent of the change and conditions attached to the permission.
- Project delays: defending or negotiating right to light claims will inevitably set your development off its projected timeline while efforts are being made to resolve disputes.
What evidence do developers need to prove compliance?
It is important that you maintain detailed records and documentation throughout the project to prove compliance with the right to light. This may include reports of light assessments conducted by surveyors, any design modifications made to address problem areas, and email trails or logs demonstrating communication with affected parties. If you can prove that you have explored and satirised yourself that the right to light has not been impacted, this can strengthen your position in the event of a dispute.
How to resolve a right to light dispute
Speak to your lawyers before engaging with any the other side. Our commercial dispute lawyers have experience in advising on such matters.
Should you choose to engage with the other party, resolving a right to light dispute with affected neighboring properties can be complex, but there are several steps that you could explore to address the issue, including:
- Negotiation: the first step in any dispute is to engage in open and constructive negotiations with the other party. Listening to the concerns of affected parties and finding a mutually acceptable solution at the outset can save you time and money further down the line.
- Mediation: should direct negotiations prove unfruitful, both parties may consider engaging a mediator to facilitate discussions and help find a compromise. Mediation tends to be much less costly than formal court proceedings.
- Settlement: you may wish to offer an out of court settlement to the affected neighboring properties in exchange for the impact on their right to light. Financial compensation in this regard is intended to address any loss of property value or inconvenience caused by the development.
- Redesign: you may need to explore redesigning the project to minimise its impact on the neighboring properties' right to light. This may involve making adjustments to the height, orientation, or layout of buildings to mitigate the obstruction of sunlight.
- Legal Action: if all other options fail, as a final resort it may be necessary for the court to have a final say on matters concerning the right to light.
What remedies are available if a right to light is infringed?
There are two primary remedies used by courts for actionable infringement:
- Financial compensation: the court may order that you pay damages / a sum of money to the affected property owner to compensate for their loss. These could be a sizeable amount.
- Injunctions: this is the more common approach taken by courts in right to light litigation. The injunction may prevent the development commencing or stop you onsite, require alternations / adaptions to an existing project or in extreme cases, order the offending building (or part thereof) is removed.
Summary
Right to light is an important factor that developers must take into consideration when planning and designing projects in close proximity to neighbouring properties. Disputes or delays arising from right to light claims during the course of construction can have serious financial and practical implications. Understanding and addressing potential issues at early stages can therefore lead to a smoother and more successful construction overall.
If you do find yourself faced with right to light disputes during your project, it is essential that you make contact with expert commercial property solicitors as soon as possible; to try and help manage and mitigate the repercussions, avoid any excessive delays or disruptions in achieving your project goals. Here at Harper James, our expert teams have a wealth of knowledge and experience in advising developers on right to light, as well as quickly resolving any issues to protect your legal and commercial interests.
