Under general principles of law, a landowner has the right to build upon its land even if that interferes with the light enjoyed by a neighbouring building. If the neighbouring building’s windows enjoy light over the landowner’s land for 20 years, the neighbour (which can be the owner or occupier) can acquire rights of light. These rights will prevent the landowner from subsequently building on its land in such a way as to diminish the light enjoyed through the neighbour’s windows. However, the well-advised landowner can prevent these rights of light accruing by registering a light obstruction notice.

How does a light obstruction notice prevent a right of light?

Light obstruction notices originate from the principle that a developer can prevent a neighbour from acquiring rights of light by physically blocking the light to the windows within the 20-year period. The Prescription Act 1831 stipulates that the obstruction must last for at least one full year before the expiry of the 20-year period. In effect, this means that the interference must begin before the end of the 19th year, and last for a full year.

With pressure on inner-city space generating an increase in vertical development, the impracticalities of the physical obstruction triggered the Rights of Light Act 1959. Rather than physically obstructing the windows, the landowner can serve a light obstruction notice to prevent rights of light being acquired through long use.

The Act offers two methods of registering a light obstruction notice: first, a full application; and secondly, an expedited application if the expiry of the 19th year is fast approaching. The principle underpinning both applications is that the notice serves as a fictional obstruction of the light to the window, which replaces the need to erect a physical obstruction.

Who can prevent rights of light being acquired?

An application under the Rights of Light Act 1959 to prevent rights of light being acquired can be made by any of the following:

• the freehold owner of the land that will be affected by the rights;

• a tenant of that land with at least seven years of its lease remaining unexpired; and/or

• a mortgagee in possession of the affected land.

It does not matter, for the acquisition of rights of light, whether the neighbour has only just acquired or taken a lease of their property. The 20-year period depends on the existence of the building enjoying the light, not the identity of the owner.

Option 1: full registration of a light obstruction notice

The applicant must apply to the local authority for registration of a notice on the local land charges register. The application requires submission of the following documents:

• an application form in the prescribed form;

• a plan showing the position of the fictional obstruction of the light to the neighbouring building; and

• a Lands Tribunal certificate.

The local authority will then register the light obstruction notice as a local land charge on the register of the land that would have benefited from rights of light. Once the notice has been on the register for one year, and assuming there are no successful challenges, the rights of light are defeated and the 20-year period is reset. Because the obstruction notice is registered as a local land charge, a search of the local authority documents will reveal whether a potential development site has successfully blocked potential rights of light of adjoining buildings.

A Lands Tribunal certificate certifies that adequate notice has been given to all persons who appear likely to be affected by the registration. To obtain a certificate, an application must be made to the Lands Tribunal. With the application, the applicant must provide a copy of the application form to be submitted to the local authority, and must state to the best of its knowledge the names and addresses of all persons who occupy or own an interest in land that may benefit from rights of light.

On receipt of the application, the Lands Tribunal will specify how, and upon whom, notice must be served. The applicant must follow the Lands Tribunal’s guidance and then notify it in writing, setting out the full particulars of the steps that have been taken. Once the Lands Tribunal is satisfied, it will issue the certificate. The certificate can then accompany the application form and plan to the local authority, and the light obstruction notice can be registered.

Local authorities currently charge £67 to register the notice, and an additional £2.50 for filing the certificate. The Lands Tribunal currently charges £250 for the certificate. The total cost for this route, therefore, is £319.50. The Lands Tribunal estimates that it takes a week after the application to obtain a certificate, provided the applicant is diligent in serving the required notices.

Option 2: expedited registration of a light obstruction notice

Similar to the full application, the following documents must be submitted to the local authority to register a light obstruction notice following this route:

• an application form in the prescribed form;

• a plan showing the position of the fictional obstruction of the light to the neighbouring building; and

• a temporary certificate from the Lands Tribunal.

On receipt of the above, the local authority will register the light obstruction notice in the usual way.

A temporary certificate is issued by the Lands Tribunal if it considers the case to be of ‘exceptional urgency’. No notice needs to be served on neighbouring landowners at this point. The temporary certificate will, however, only be valid for a specified period. This period cannot exceed six months. Within the specified period, the full Lands Tribunal certificate must be obtained in the usual way and lodged with the local authority.

This route is clearly favourable when working against a tight deadline. Importantly, case law states that the period of the obstruction begins when the temporary application to the local authority is added as a local land charge (Bowring Services Ltd v Scottish Widows Fund and Life Assurance Society [1995]). The local authority fees for this option remain as above, but the temporary certificate costs £300. As this route does not replace the need for a full Lands Tribunal certificate to be obtained (this is at no additional cost), this option is only attractive if faced with a significant time pressure. The temporary certificate is issued by the Lands Tribunal within 24 hours of receiving an application, or even on the same day in cases of extreme urgency.

Challenging a light obstruction notice

A landowner can challenge a light obstruction notice if the fictional obstruction infringes its rights of light, in other words, the landowner thinks it has rights of light and the fictional obstruction blocks the windows that have acquired the rights. The challenge must be made, however, within one year of the registration of the light obstruction notice. A challenge stops the one-year timer. If the claimant is unsuccessful, the timer resumes as if there had never been a challenge.

There are two ways a claimant can challenge the light obstruction notice. First, it can contact the applicant who has registered the light obstruction notice and prove that it has acquired rights of light. If the applicant agrees that rights of light exist, the applicant has the power to alter or cancel the light obstruction notice. The local authority will make the alteration or cancellation if the applicant provides an application form and statutory declaration.

Secondly, the claimant can bring a claim in court to protect its rights of light. If the court finds in favour of the claimant, it can make an order varying or cancelling the light obstruction notice. The local authority is obliged to make the variation or cancellation upon receipt of an official copy of a judgment, accompanied with the appropriate fee.

It is advisable for a claimant to attempt the former route first. It will be cheaper to convince the applicant of the rights than to go to court.

Conclusion

Developers need to be aware of the possibility of neighbouring landowners acquiring rights of light through 20 years’ long use. Registering a light obstruction notice is relatively inexpensive, but requires an awareness of rights of light accruing. Developers should register a light obstruction notice if a neighbouring building’s windows have enjoyed light over the developer’s property for close to 19 years and the rights of light could restrict the proposed development. Even where a developer thinks that a neighbouring building may already have acquired rights of light, there may be some merit in registering an obstruction notice to flush out any rights of light claims. © Property Law Journal