With so many tall buildings being planned and urban development space being at a premium, it is not surprising that rights to light issues are high on the agenda when considering the plans for development of a site. In addition, owners of neighbouring properties seem much more aware of their rights and are prepared to exercise them. For developers, rights to light where there are clear infringements present a real threat. If injunctive relief is granted to the claimant, the development can- not proceed unless there are radical changes that can substantially reduce development value.

Rights of light are probably the most difficult of all easements. The subject needs much study and understanding, but it is appropriate to list a few salient features that are encountered in dealing with them.

Background law

Most rights of light enjoyed in respect of a property have been acquired by prescription – 20 years or more of uninterrupted enjoyment of light to a window. Comparatively few derive from express grant. Where they do, the extent and operation of the right is a matter of interpretation of the grant. In the case of acquisition by prescription, there is frequently argument as to whether any right has been acquired. In the case of either acquisition by express grant or prescription, there are often questions as to whether those rights have devolved on tenants of the dominant tenement.

English law has always endeavoured to maintain a sensible balance between adjoining property owners so that proper development is not stultified in the quest to preserve subsisting rights of light acquired with the passage of time. The test settled in Colls v Home & Colonial Stores Ltd [1904], as to whether there is an actionable infringement of a right to light, is how much light is left ‘according to the ordinary notions of mankind’ for comfortable use, not how much light is taken. In determining whether an action in nuisance exists, there are certain rules of thumb that apply, the most quoted being the ‘50-50 rule’ (a room is regarded as adequately lit for all purposes if 50% or more of its area receives not less than one lumen of light at table level) but the rule is not hard and fast – merely a useful guide.

Tenants of the dominant tenement

Section 62 Law of Property Act 1925

As is well known, s62 provides that a conveyance of land carries with it all easements, including rights of light, enjoyed by the dominant tenement. A conveyance includes a lease. The operation of s62 is negated if an intention is expressed in the conveyance to that effect. Thus, it has become common for leases to contain a provision that the grant of the lease is not to have effect to prevent the landlord from developing its retained land, even though the light and air to the premises comprised in the lease would be diminished. Of itself, that sort of negation would not prevent the tenant from having the benefit of rights to light enjoyed by the landlord over land not owned by the landlord, but the rights of the tenant over the retained land of the landlord are permissive only and may be terminated at any time. There is however a principle that the reduction of the right must not be such as to destroy all rights of the tenant (the blocking up of all light would not be permissible).

Section 62 does not operate in respect of an agreement for lease for a tenancy of more than three years – it is not a lease as such. But it does apply to tenancies of less duration, as long as there is a grant in writing – the section does not operate in respect of a verbal tenancy.

If a lease is granted on terms that the tenant is not entitled to any rights of light, that will fully negate the operation of s62 and the tenant will only enjoy light by licence. That does not, however, prevent the tenant over time acquiring, by prescription, rights to light over other property.

It appears that if, at the time of the grant of a lease, the landlord is in the course of acquiring a right of light by prescription but has not yet had 20 years of uninterrupted enjoyment of the right, the benefit of the nascent right passes to the tenant also.

Injunctions and damages

The principal remedy for the infringement of a right to light to the extent that it is a nuisance (too little light is left) is the grant of an injunction. But other considerations will have to be taken into account. Would the grant of an injunction be disproportionate, in effect preventing useful and beneficial development of a neighbouring property? Are the rooms of the dominant tenement that are adversely affected living rooms? Is the dominant tenement a residential property or commercial property? Has there been acquiescence by the dominant owner or undue delay? Rights to light have their own characteristics which were examined in some detail in a recent case in the Chancery Division.

Midtown Ltd v City of London Real Property Company Ltd [2005]

The facts

Midtown is the owner of the freehold interest in 43 Fetter Lane. The tenant is Kendall Freeman (formerly DJ Freeman). City of London Real Property Company Ltd (CLRP) intended to develop the adjoining property to the north, and notified Midtown of its intention and its willingness to negotiate compensation for loss of light that would be suffered. Midtown and Kendall Freeman responded by seeking an injunction or damages in lieu; neither applied for damages only and the case was fought on the basis that the claimants wanted an injunction. In the case of Midtown, it was probably motivated to do so by enhancing the development value of its property. In the case of Kendall Freeman, it was claimed that the loss of light would cause a marked deterioration of working conditions.

There was argument as to the acquisition of a right to light by prescription, but in the outcome, it was accepted that both Midtown and Kendall Freeman enjoyed rights to light. It was also conceded that the reduction of light that would be caused by the proposed development would be considerable – for the most part, the rooms affected would not have passed the 50-50 test.

The arguments

CLRP argued that, given the locality, one should not approach the impact of loss of light solely by reference to natural light. The rooms affected were all artificially lit throughout the day, as modern offices most often are. Many other rooms had no natural light but were used by typing and ancillary staff. As evidence was given by members of the staff of Kendall Freeman, it became clear that most of them were concerned, not so much by loss of light but by loss of view. Loss of view is not actionable – there is no easement in English law of a right to a view. It was therefore contended that, in line with modern office practice, it is preferable to provide a constant level of light by permanent artificial lighting. A weakness of that argument is that it does not justify the proposition that artificial lighting is an answer to the deprivation of natural light, or that developments may be allowed to override rights to natural light by expropriation. Even so, it could affect the nature of the remedy to be applied for loss of light.

The decision

The judge found that an actionable nuisance would be caused by the proposed development – it would reduce the light enjoyed as of right to an extent whereby the claimants were entitled to a remedy. Should they be entitled to an injunction preventing the reduction of light or only to damages by way of compensation for the loss of light?

The interest of Midtown was purely financial. It harboured intentions to redevelop 43 Fetter Lane. Its own financial position might, in fact, be improved by the development of the adjoining property by CLRP. It was not appropriate to grant Midtown an injunction. It was only interested from a money-making point of view. If the value of the property was diminished, it could be quantified and compensated accordingly. There was no present loss, because the existing lease would be unaffected by the infringements of the rights to light. Its likely intention to redevelop the dominant property probably made an injunction academic. In addition, CLRP had acted reasonably and openly in flagging up the problem and offering to meet and discuss matters, only to be rebuffed by both Midtown and Kendall Freeman. But most importantly, the judge held that it would be oppressive to the defendants to be prevented from pursuing a worthwhile and beneficial development for the area (which might incidentally benefit Midtown).

As regards Kendall Freeman, it had no capital interest in the building. The proposed development would not affect in any way their existing use of the property nor cause them to change their present method of use of the property. The witnesses from the firm were really concerned as to loss of airiness rather than loss of light. The reality was that modern offices do use artificial light to maintain constant light. That could not be elevated to a principle that loss of natural light could be overridden, but it did go to whether an injunction should be withheld and damages awarded instead. Accordingly, the appropriate remedy would be damages and injunctive relief was withheld.

Significance of this case

The decision is closely reasoned and is likely to be treated as a landmark case in relation to commercial property development. Developers will rely on it heavily. While each case must be judged on its own merits, this judgment seems to indicate a modern, fresh, approach to the rights of light issues in that context. Against the background of the recent development of the principles governing the grant of injunctive relief and the award of damages in lieu, the application of those principles to rights of light issues has been advanced. (For more on the latter point see Gerald Moran's discussion of Harris v Williams-Wynne [2005] on page 5 of this issue, and his discussion of Mortimer v Bailey in PLJ 142.) © Property Law Journal