Casting light on a grey area of law

How do the public and private law systems affecting rights to light interact with each other?By Stephen Bickford Smith The common law recognises a right to light as an easement, interference with which involves the tort of nuisance. Planning law protects the built environment, including daylight, sunlight and views. How do the two systems relate? Common law At common law, windows in a building can enjoy rights to light acquired by prescription or by grant over the land of another. The right to light is an easement, and entitles those interested in the building to: Sufficient light, according to ordinary notions, for the comfortable or beneficial use of the building in questionÉ for such purposes as would constitute normal uses of a building of its particular character. Allen v Greenwood (1980) Ch 119 at pp134-135 The building enjoying a right to light is known as the dominant tenement, the land over which the right is enjoyed as the servient tenement. Remedies for interference with a right to light include damages and injunctions to prohibit the erection of the offending structure or to order its removal. At common law: The right is one to light only – not to a particular view, nor to privacy against overlooking, still less to absence of interference with television reception: see Dalton v Angus [1] 6 App Cas 740; Brown v Flower [1911] 1 Ch 219; Hunter v Canary Wharf Ltd [1997] 2 All ER 426. Only owners and tenants of the dominant tenement can claim for interference. Those with no legal interest are excluded. Reduction of light is permissible, if what is left is sufficient for ordinary purposes (in most cases, if more than 50% of the room(s) affected remains well-lit, no action will lie). To protect a right to light, it is necessary to take legal action in the appropriate court. Statute The planning acts, principally the Town & Country Planning Act 1990, embody the planning system. These prohibit development (including construction of works) without planning permission. The decision to grant or refuse permission is generally made by local councils in their capacity as the local planning authority (LPA) following the development plan – usually a unitary development plan (UDP), and other material considerations including government policy as laid down in official guidance and planning policy guidance notes (PPGs). An appeal against refusal lies to a planning inspector and thereafter on points of law to the High Court. The co-existence of rights of light with planning law raises interesting questions. Should planners take account of common law rights? The traditional view is that: The planning system does not exist to protect the private interests of one person against the activities of another PPG 1 (February 1997), para 64. It should follow that the concerns of private individuals are not relevant to the planning process. In practice, things are not so clear, for two reasons. First, in formulating the UDP the LPA is required by law to include policies to conserve the natural beauty and amenity of land in its area, and to improve the physical environment. LPAs must also have regard to central government guidance. Policies designed to protect light and views of existing residents are almost universal. The criteria used were for many years those in a Department of the Environment publication of 1971: Sunlight and Daylight: Planning criteria and design of buildings. This has now been superseded by a BRE report: Site Layout Planning for Daylight and Sunlight: A guide to good practice. Both documents are in use by UDPs, and include detailed criteria to protect daylight to existing buildings, by reference to the height and distance of the new building from the windows of the existing building, and the effect on existing windows in terms of lost sky visibility. These standards can be considerably more stringent than common law rights to light in restricting new development. Second, planning case law shows that it is legitimate to take into account visual amenities of existing residents when granting or refusing planning permission for a new building. In Wood-Robinson v SSE [8] JPL 976 the LPA refused permission for the erection of a house in the grounds of a block of flats, on the ground that it would spoil the residents’ views. The developer appealed unsuccessfully to a planning inspector and to the High Court. Its argument was that private interests (ie the residents’ view) were irrelevant to planning. The court held that whether protection of the view in the public interest was a legitimate planning consideration was for the decisionmaker (ie the inspector) to decide. Note that the residents could not have sued the developer for blocking their view of the house once it had been erected, since there is no common law right to a view. Previous cases established that an LPA can refuse planning permission for development that would harm private interests, provided the decision can be justified on planning grounds, ie that it relates to the character of the use of land. Courts have upheld: restrictions on development round a radio telescope to prevent interference: Stringer v MHLG [1] 1 All ER 65; a refusal of permission for a concrete plant that would harm a nearby precision engineering factory through dust: RMC Management Services v Secretary of State (1972) 222 EG 1593; a refusal of permission for conversion of a house into two flats, resulting in each occupier suffering noise disturbance from the other: London Borough of Newham v Secretary of State [6] JPL 607. Can a would-be developer argue that, if existing residents enjoy common law rights of light, possible harm to their light should not justify refusal of permission since they can bring an action in nuisance? In Brewer v SSE [8] 2 PLR 13 the would-be developer sought to rely on the absence of a common law right of light as a ground for granting planning permission. A planning inspector granted permission on appeal. He found that the proposed development (a house extension) would substantially harm the light received by the windows of an adjacent property. Key points Common law rights to light differ substantially from planning law and policy protecting sunlight, daylight and privacy Developers should note the following: Planning policies protecting sunlight and daylight are frequently more stringent than common law rights and cover a wider class of residents Obtaining planning permission does not guarantee immunity from common law claims for interference with rights of light. However, planners should not withhold permission simply because private rights of light are asserted Those that think a new development will interfere with their light should lobby against the proposal. If successful, this will save the need for litigation However, he accepted that because the developer proposed to register a light obstruction notice against the adjacent property, the effect of which (if unchallenged for the necessary period) would be to prevent the adjacent owner asserting a right to light, this harm was not relevant. The court overturned the decision and held that the inspector had been wrong to take the presence or absence of a common law right to light into account. The case suggests that the existence of a right to light will not justify the grant of permission (unless normal planning criteria are satisfied). Thus planning law can take into account private interests provided there is a sufficient planning justification, but the existence or otherwise of a right to light does not justify departing from normal planning policies. Is the common law still needed? Given the width of planning’s potential protection of privacy of sunlight, daylight, and views, do common law rights to light now have any role? The clear answer must be yes, for the following reasons: The absence/presence of common law rights of light is not directly relevant to a planning decision. Permission is often granted for major developments infringing rights of light, on broad economic or social benefit grounds. The grant by an LPA of permission for a development can only be challenged by way of application for judicial review to show that the decision was unreasonable or unlawful. There is no private law claim against the LPA. It is in practice difficult to challenge the grant of permission by an LPA, since reasons are not given and it can be hard to work out what took place at the relevant meeting. The need to show the decision was unreasonable or unlawful can be hard to satisfy, given that most planning policies are not very precisely drafted. Even if a decision is quashed, the application must be redetermined by the self-same LPA. The grant of planning permission for developments infringing private rights should not affect those rights. This was expressly recognised by Lord Hoffman in Hunter v Canary Wharf Ltd at p455d: I am not suggesting that the grant of planning permission should be a defence to anything which is an actionable nuisance under the existing law. It would, I think, be wrong to allow the private rights of third parties to be taken away by a permission granted by the planning authority to the developer. There are, however, two arguments that the grant of planning permission could affect the existence of common law rights, or remedies available in an action. First, in Greenwich Health Care NHS Trust v London Quadrant Housing Trust (The Times, 11 July 1998) the court held that it was a reason to refuse an injunction against interference with a right of way that the interference would arise from a realignment of a road to make safe a dangerous road junction, which constituted a substantial public good. Arguably, then, if a right to light is infringed by a new development of benefit to the community, an injunction to restrain it will be required. The point was not fully argued, and it seems unlikely that a court would accept the argument if there was substantial interference with a common law right. Second, in the case of public nuisance (activities involving injury to the public at large), it has been held that the grant of planning permission for the activities in question is relevant to whether they constitute a public nuisance: Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [3] QB 343. Stephen Bickford Smith is a barrister and arbitrator at 4 Breams Buildings. www.4breamsbuildings.law.co.uk