Shining a light on Waldram and rights to light

There has been no meaningful legislation on rights to light since 1832 (save for the introduction of light obstruction notices in 1959) leaving us to grapple with centuries-old concepts that leave modern property professionals dumbfounded.     The law on rights to light needs reform to facilitate a simpler, more modern system consolidated in one place. The Law Commission consulted on rights to light in 2013 and published a report on its recommendations in December 2014. The report was laid before parliament and it was then up to the government to decide whether or not it accepted the recommendations. The majority of Commission reports are implemented into law but 8% currently languish in the category of “awaiting response from government” (meaning the government has not decided whether it wants to implement those recommendations). This is where the rights to light report sits: on a shelf in Whitehall, gathering dust. That is not to question the recommendations of the Commission (it optimistically stated recently that the “government has been carefully considering the [rights of light] report”). But inevitably there are more pressing parliamentary issues to contend with. Reform will not happen soon. Even if the Commission’s recommendations are eventually adopted, some areas of this ancient law were too difficult to drag into the 21st century and will be left unchanged and, while the list is long, there are a few of these dusty principles with massive modern implications, a couple of which we highlight here.  How much is enough light? A right to light is an easement, just like a right of way, and if someone interferes with that right, then the person with the benefit can take action to restrain that interference by way of an injunction (or the court may award damages instead). So far, so simple. But with a right of way it is easy to assess when it is interfered with (for example, by erecting a building over it). An injury to a right to light is not so visible.     The test is whether the loss of light would cause a nuisance – an undue interference with the amenity of the property – for the use to which it is put or could be put. But how can that be assessed practically? Over the past century, surveyors have nailed that jelly to the wall by developing the Waldram method of measuring light (in order to have a quantifiable standard for assessing and, more importantly, agreeing what is and is not enough light). Waldram assumes that one “lumen” of light per square foot is enough to read a newspaper at tabletop height. A “lumen” is the same as 0.2% visibility of the dome of the sky looking out of the windows or, alternatively, a candle held 1ft from the person reading the newspaper. Any less than one “lumen” per square foot is deemed inadequate and, according to Waldram, you’re going to have to turn your gas light on to read the obituaries. When surveyors plot a contour of good light penetration into a cross-section of a room, before and after a neighbouring development, what they are showing is how much further forward in the room you’re going to have to shuffle your table in order to read your newspaper (and, of course, assuming one “lumen” is enough daylight in order to read a newspaper). The rule of thumb is that a reduction to less than 50% of the room being well lit post development is an actionable interference with a right of light. Is Waldram still relevant? It’s easy to criticise Waldram (on the basis that reading a newspaper at tabletop height by the light of one candle isn’t relevant in a modern world) but it’s still widely used by surveyors and it does usually result in agreement between neighbours as to the loss of good light and the valuation of that loss, thereby avoiding disputes. But Waldram can have the opposite effect, which is to encourage neighbours to believe they are suffering from a serious effect on light (when they see a large slug of good light being lost from a room, according to Waldram) when in reality, the real-world loss of light may not affect amenity at all. Also, compensation is conventionally negotiated between surveyors based on a Red Book valuation of the square footage of good light lost based on Waldram, to which a multiplier is applied. This can mean that a neighbour is compensated for what Waldram tells us but not for the actual loss of amenity it is suffering (if any). There is a misconception that the courts have adopted Waldram as the correct test for assessing an actionable loss of light. They haven’t and there is a good chance the next time this comes before the courts, Waldram will not be accepted as the correct test, or at least not the only method that should be taken into account in deciding what loss of light will actually impact on amenity. There are alternatives that better identify the internal illuminance levels and therefore better replicate the experience of being in a room both before and after a nearby development (such as “climate-based daylight modelling” and “radiance studies”). The next developer faced with an injunction from a neighbour should commission expert evidence not only based on Waldram but also on these alternative and – arguably – more relevant and reliable tests. Until then, Waldram remains a relatively reliable but stuck-in-their-ways old friend. What are ‘parasitic losses’? Where a development adversely affects the light to windows that benefit from a right of light, the development may also adversely affect the light to windows in the same building that do not have a right of light (for example, because those windows were built less that 20 years ago). Losses to such newer windows are often referred to as being “parasitic” to the loss of light to the old windows that do have rights. London Tilbury & Southend Railway Co v Gowers Walk School Trustees [1889] held that where the inevitable consequence of a developer adversely affecting light to windows with rights, is to also adversely affect the light to windows in the same building that don’t have rights, then the developer should compensate the neighbour for all the consequences of its actions by also compensating the neighbour for the loss of light to windows that do not have rights. Despite the age of the principle, its application is inconsistent. Practitioners often wrongly elevate “parasitic losses” so as to treat them as if protected to the same extent as actionable losses to windows with rights: ■ It is unlikely that a court would award an injunction to scale back a development to prevent “parasitic losses” being caused, bearing in mind they are still fundamentally losses to windows that do not have rights. ■ “Parasitic losses” should be compensated for, and practitioners often assess their value by arriving at a Red Book valuation for the loss of light (assessed on the Waldram basis) and may apply a multiplier to that valuation. However, it is likely the damages awarded for “parasitic losses” will instead be limited to any reduction in the value of the neighbouring building caused as a consequence of that “parasitic” loss of light. A neighbour may be hard-pressed to demonstrate any such loss.  ■ Loss of light to windows that do have rights but which does not affect the amenity of those rooms (for example, is not an actionable loss of light) is often described as “parasitic” and therefore, valued by rights to light surveyors. However, it is unlikely that this is the right application of the principle. Where a room suffers a loss of light that does not affect amenity, then there should be no remedy for that loss of light at all because it is not having any adverse effect on the neighbour.  Developers and neighbours need to be mindful of the concept of “parasitic losses”.They are important but the approach to the principle is not always consistent.  Does the Custom of London work? Prescription is easy to understand – a right of light may arise after 20 years of uninterrupted enjoyment of light without consent. However, there are three kinds of prescription. One is “lost modern grant” which assumes that on the expiry of the 20 years of enjoyment, the benefiting and the burdened properties enter an agreement conferring a right of light but then promptly lose it, hence the words “lost grant”. The word “modern” is probably a reference to the fact the right is accrued post 1189 – bang up to date, as with all things rights to light. However, in the City of London, the Custom of London (deriving from 1757) applies and gives a building owner the right to build on their “ancient foundations” irrespective of the impact on the right of light of the neighbour acquired by lost modern grant. “Ancient foundations” probably means building within the footprint of a previous building on the same site.  Therefore, the Custom of London can be a powerful tool for developers in the City of London to essentially override a neighbour’s lost modern grant right of light. It is not without its complexities (for example, it is debated whether both a freehold and leasehold developer can rely on it.) Also, the Custom of London will not override a right of light asserted under one of the other two flavours of prescription. Nonetheless, the principles of lost modern grant and the Custom of London are ancient, do not make much sense in the modern world but form part of the tapestry of rights to light and developers and neighbours should be mindful of their real-world implication.  Arcane concepts are here to stay Rights to light will remain a significant development constraint that many believe are exploited for compensation in circumstances where the loss of light would not affect the neighbour’s amenity. However, rights to light are – literally – part of our development landscape. Developers factor the time and expense consequences into their development appraisals, first because injunctions that restrain development are rare and a neighbour will usually accept money. In the City of London, for example, I’m struggling to find an instance where there has been an injunction that has actually prevented a building being built or led to a cut back. Secondly, this is just the way it has always been done. While rights to light are arcane and difficult to quantify (for example, we still don’t know how much light is enough and how we quantify the value of lost light), we’re stuck with them and a well-advised developer can rationalise these odd and ancient risks and hopefully forgive the legal system for landing us in another fine mess. Nick Lloyd is a partner at CMS LLP