The law surrounding ‘rights of light’ is relatively complex, and is an area which consistently attracts a certain amount of misunderstanding.

Many developers have adopted a fairly relaxed approach to such rights in the past, as damages have often been considered an adequate remedy if action is taken by a neighbour.  The recent case of Beaumont Business Centres Ltd v Florala Properties Ltd however, which may well have been missed by many during the COVID-19 crisis, has provided  a stark reminder of the potential for injunctions to be granted when such rights are breached.

With that being said, what exactly is a right of light, and why should this be an area of concern?

What is a right of light?

A right of light is a form of easement, in which the natural light that passes over neighbouring land, and then enters through apertures (or openings) in a building.  Apertures can include windows, doors, skylights etc.

Such rights are usually claimed under the Prescription Act 1832, which gives rise to a right of light where light has been enjoyed through an aperture without interruption for a period of at least 20 years.

The right itself is the right to receive “sufficient” natural light through the aperture to allow the room or space behind the aperture to be used for its “ordinary purpose”.  Different rooms, for different purposes, will therefore have rights to different levels of light.  The common example used is that of a greenhouse and a store room, the former being entitled to greater levels of light (should a right exist) than the latter.

As such, it will not be sufficient for a party to simply evidence that there has been a reduction in the amount of light.  The reduction must be as such that the property has been made substantially less comfortable and convenient than before the reduction in light, and that the loss of light therefore amounts to a nuisance.

For a number of years, many property developers have taken a cavalier approach to infringing such rights, on the basis that damages in lieu of an injunction is often considered adequate remedy (as opposed to an injunction ordering work to stop, or an obstruction to be removed).

The recent case of Beaumont Business Centres Ltd v Florala Properties Ltd [2020] EWHC 550 (Ch) however has highlighted the potential dangers in doing so however, even when dealing with buildings where the existing light supply is fairly poor.

Making light work of development

The Beaumont v Florala case demonstrates that proceeding with development work in full knowledge of an existing right to light is a potentially high-risk gamble that may well result in significant consequences.

In April 2015, a connected company of Beaumont granted a lease of an office building to Beaumont for 15 years.  The freehold of the building was sold to a third party.

Florala owned the neighbouring property to the north of the Beaumont’s office building.  Florala planned to redevelop their new property, which in turn would possibly lead to a loss of light to Beaumont’s property.

At the same time as entering into the lease, a ‘rights of light deed’ as entered into between Beaumont, their connected company and the freehold purchaser.  This deed allowed Beaumont to retain rights of light claims for increases in height in Florala’s property of up to 11.25 metres.

If Florala’s development increased the neighbouring property’s height beyond 11.25 metres, the rights belonged to the freehold owner.

In May 2015 planning permission was granted for Florala to use their existing property as an apart-hotel.  The building works planned were going to reduce the light to Beaumont’s office building.

In July 2016, Florala offered £155,000 to settle any rights to light claim but withdrew their offer when they discovered the existence of a ‘rights to light deed’.

Florala reasoned that Beaumont, in agreeing the ‘rights of light deed’, had shown their concern with maintaining the amount of light available to the building was not genuine; they argued that the deed had been created so as to secure a ransom payment from Florala.

Florala decided to commence works in July 2017.  In February 2018, with the building works still underway, Beaumont sought an injunction on the grounds of wrongful interference with its right to light.

It was accepted by all parties that the windows on the first four floors of Beaumont’s property had acquired a right to light.  The defence offered by Florala was that the part of the building impacted by their development works had previously been badly lit anyway, and reducing the amount of light did not amount to a nuisance.

They also reiterated that the nature of the ‘rights to light deed’ entered into by Beaumont demonstrated they were not genuinely interested in protecting the amount of light entering the building.

Beaumont had to prove the reduction in natural light reaching their building could cause a loss in income.  The court accepted that, given the building operated in the luxury serviced office market, the reduction in light risked driving custom away.  The reduction in light had therefore caused a reduction in Beaumont’s rents.  This amounted to a substantial interference, and a nuisance.

The stark warning to developers however came in the court’s consideration of the remedies available to Beaumont.  In considering whether to grant an injunction ordering Florala to cut back its development, the court held that the starting point was that an injunction should be granted, and it was then for Florala to evidence why it should not be granted.

After considering Florala’s behaviour in proceeding with the development in full knowledge of the rights it was infringing, it was held to be appropriate for an injunction to be granted ordering Florala to cut back their development, so as not to infringe Beaumont’s right of light.

Developers should therefore always bear in mind that a court will not shy away from granting an injunction ordering that buildings or parts of developments are taken down in order to conserve rights of light.

If you are considering a property development project and would like to discuss right to light concerns, please speak to Jonathan Rowley, an experienced Associate Solicitor in the Commercial Property team here at Ansons on 01543 466660 or email jrowley@ansons.law

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