Recent decisions have highlighted the benefits of owning rights to light. A landowner that claims prescriptive rights to light need only prove that the windows in its building have enjoyed uninterrupted access to light for 20 years. The right to light will then become absolute and can be used to prevent developments that infringe the landowner’s rights to light or to extract damages, which are often substantial, for an infringement.
However, landowners can prevent neighbours from acquiring prescriptive rights to light by proving that they have enjoyed access to light by agreement or consent: see section 3 of the Prescription Act 1832. They can also do so by interrupting the flow of light to any neighbouring buildings for at least one year; the interruption may take the form of a physical obstruction, such as a hoarding. Alternatively, a landowner can apply to the Lands Tribunal to register a light obstruction notice in the local land charges register: section 2 Rights of Light Act 1959. The notice effects a notional obstruction in the form of a virtual hoarding or screen and, if it remains unchallenged after one year, the right to light is deemed to have been interrupted and the prescriptive clock returns to zero.
Recent decisions have highlighted the benefits of owning rights to light. A landowner that claims prescriptive rights to light need only prove that the windows in its building have enjoyed uninterrupted access to light for 20 years. The right to light will then become absolute and can be used to prevent developments that infringe the landowner’s rights to light or to extract damages, which are often substantial, for an infringement. However, landowners can prevent neighbours from acquiring prescriptive rights to light by proving that they have enjoyed access to light by agreement or consent: see section 3 of the Prescription Act 1832. They can also do so by interrupting the flow of light to any neighbouring buildings for at least one year; the interruption may take the form of a physical obstruction, such as a hoarding. Alternatively, a landowner can apply to the Lands Tribunal to register a light obstruction notice in the local land charges register: section 2 Rights of Light Act 1959. The notice effects a notional obstruction in the form of a virtual hoarding or screen and, if it remains unchallenged after one year, the right to light is deemed to have been interrupted and the prescriptive clock returns to zero. The litigation in Salvage Wharf Ltd v G&S Brough Ltd [2009] EWCA Civ 21; [2009] PLSCS 31 concerned an agreement to facilitate a city centre development. The owner of land with the benefit of long-standing rights to light acknowledged in the agreement that the proposed development might affect its rights, but undertook not to enforce them. The developer carried out part of the planned development. Several years later, a subsequent owner of the development site applied for the registration of a light obstruction notice to facilitate further development. The ownership of rights to light was likely to have a substantial effect upon the amount of compensation payable following compulsory acquisition of the landowner’s land (which was required to enable the further development to proceed). Consequently, the landowner issued proceedings for a declaration that it still enjoyed rights to light, and applied for the light obstruction notice to be cancelled. The Court of Appeal had to decide whether the agreement that the landowner would refrain from enforcing its rights to light was an agreement for the purposes of section 3 of the 1832 Act. It decided that the landowner had not abandoned, or agreed to extinguish, its rights. On the contrary, the agreement confirmed that the landowner enjoyed rights to light, while imposing a restriction on their enforcement for a particular purpose. Consequently, section 3 was not engaged. Their lordships also directed the local authority to cancel the light obstruction notice because the further development differed markedly from the development to which the landowner had consented seven years previously. The law on rights to light is complex and difficult. Therefore, landowners would be well advised to obtain expert advice whenever rights to light are an issue. Allyson Colby is a property law consultant
