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Extinguishing the right to light by prescription

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UK Prime Minister David Cameron has likened his battle against planning regulation to the war against Nazi Germany. Now it looks as if a Blitz-style blackout will be a crucial part of Britain’s bid to build itself out of recession. The government wants to abolish the right to light.

The thinking is that valuable developments are being prevented by the centuries-old “easement” of light, whereby the owners or occupiers of one building should not have light reduced by new buildings or other blockages on neighbouring ground. The Law Commission has been tasked with reviewing the law – preferably to get rid of it.

The case that has set the bees buzzing around government ministers’ bonnets is HKRUK II (CHC) Ltd v Heaney (2010) in which developers built two new storeys to a property in Leeds and a judge issued an injunction requiring them to be removed since they blocked some of the light to a nearby building.

Facts of the case
Marcus Alexander Heaney owns a fine Victorian building in Leeds, formerly a Yorkshire Penny Bank, which he had converted into offices and a conference centre. It benefits from “the easement of light” through “prescription” – meaning it had enjoyed the light for at least 20 years and hence had an indefeasible right to it (see below for legal explanation).

In 2007 the developers (Highcross for short) bought part of Cloth Hall Court, across the road from the old bank, and added a sixth and seventh floor to it, depriving the old bank of a small amount of light. Highcross knew the right to light was an issue but saw it as one of potential compensation, not enforced demolition of the extra storeys. They had bought the property at a discount of £350,000 for that reason, and set aside a £200,000 contingency to deal with the matter.

There were negotiations with Heaney, but, unusually in such cases, the “servient owner” (ie the developer owing the duty to allow light to the “dominant tenement”) took the step of putting the matter before a court in 2009 by issuing a claim for a declaration – expecting it to be for compensation rather than an injunction requiring the removal of the floors. Heaney counterclaimed for injunction.

There are such things in this world as light surveyors who can assess sunlight entering windows. Valuations can then be done on the basis of the business value of that light to one building compared and contrasted with the business value of new development on the other. Needless to say the reports from each side were not in agreement. That from Heaney’s surveyor suggested a settlement based on a third to a half of the profit on the two extra storeys of the nearby building (around £1m). One from the developers’ surveyor suggested “the loss of light would only have a limited impact on [the old bank’s] value”.

The judgment
The decision of a court to order compensation rather than an injunction to stop (or undo) building work is governed by the principles of Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287. According to A L Smith LJ in this case:

[A] person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be In such cases the well known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff’s legal right has been invaded, and he is prima facie entitled to an injunction.” (Shelfer 322)

However, he went on to say that compensation may be applied if:

• the injury to the claimant is small;
• it is capable of being estimated in money;
• it can be adequately compensated by money;
• and it would be oppressive (to the developers) to grant an injunction.

Although the loss of light was to floor space less than 1% of the whole building, the impact on certain rooms might be much bigger than that implies. For example there was a large loss of light to the “star room” of the bank building, the board room. Judge Langan QC, at Leeds High Court, decided that: “the injury done to the defendant’s rights in this case lies close to the margin of what is, and what is not, small for the purposes of the first of the Shelfer criteria”.

‘When the access and use of light to and for any dwelling house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing’ – Prescription Act 1832

He accepted the injury could be satisfied with money; that the owner could either get damages for nuisance or a buy-out of his right to injunction. However, he set the potential compensation at £225,000, which he decided was not a “small” figure in Shelfer terms, making injunction more appropriate.

On the issue of “oppression” there was the huge loss of removing the parts of the building blocking light and issues about the behaviour of Heaney in not initiating court proceedings or seeking injunction as the building went on. But the judge declared the Highcross infringement neither trivial nor inadvertent (in that the developers knew of the problem from the start but carried on building). Smaller storeys could have been built without infringing the right to light. Courts are not in the business of sanctioning unlawful behaviour.

Change in the law
The Law Commission only touched on the right to light in a 2011 report on easements, but under new orders from the Government seems minded to suggest a major change.*

Prof Elizabeth Cooke, the Law Commissioner leading the project, is reported to have said that “while such a right [to light] was important ‘there is also a public interest in the development of the modern, high-quality residential, office and commercial development that we need in our town and city centres’”.

But there lies the fiendish complication behind any change. If the right to light is removed, albeit with some form of compensation regime in place rather than outright abolition, it opens the doors to the potential destruction of business, never mind damage to residential environments.

Take one of the leading right to light cases, Allen v Greenwood (1980) which was about a fence and caravan blocking light to a greenhouse where tomatoes were grown. An argument that there was no right to heat or direct rays of the sun was rejected, with Lord Justice Buckley asserting instead that:

“the amount of light to which a dominant owner is entitled under a prescriptive claim is sufficient light, according to ordinary notions, for the comfortable or beneficial use of the building in question, again according to ordinary notions, for such purposes as would constitute normal uses of a building of its particular character. If the building be a dwelling house, the measure must be related to reasonable standards of comfort as a dwelling house. If it be a warehouse, a shop or a factory, the measure must be related to reasonable standards of comfort or beneficial use … If the building be a greenhouse, the measure must, in my opinion, be related to its reasonably satisfactory use as a greenhouse.”

This suggests that the business that is already established has a right to the necessary light from the sun to continue its business as before. What the new law is likely to suggest is that a new business can trash an old business or render it less profitable – simply because new business and development must be promoted. One assumes that there will be some form of complex compensation in place utilising the calculations of the light surveyors, but in fairness these calculations must take into full account the loss to the traditional business – and make up for any loss of light that might actually drive the business into bankruptcy.

The results could be bizarre, a sort of Futurist nightmare with new buildings constantly going up and, like giant trees, killing off all those in the shade around them or else being forced to subsidise the continuance of neighbouring businesses like zombie firms.

The approach is sanctioned by economic theory (but not law, as Shelfer shows). If one firm can make better use of space and compensate another fully for its resulting losses, that, according to theoreticians, would be a profit-maximizing and Pareto-efficient outcome. But in the real world, for those in the shadow of the onward march of the giants – forced into desperate negotiations and costly court cases (light surveyors don’t come cheap), it is an unnerving prospect.

*Note on new Law Commission report (2014)
Law Com No 356
The commission has now reported on the right to light and retreated from the view that prescription should be abolished. The report says:

2.65: We remain convinced that the abundance of rights to light and the ease by which they come into being are material factors in their having a disproportionately adverse impact when compared with other easements. We are not convinced that all the arguments against abolition are valid. In particular, we are unconvinced by the perception that it would be unfair for older properties to have prescriptive rights whilst newer ones do not; and we are conscious that some consultees may have misunderstood the effect of our proposal. However, the lack of support for the provisional proposal, coupled with the number and diversity of risks highlighted by consultees, has persuaded us to draw back from recommending the abolition of prescription for rights to light.

However among recommendations of the report are:

“We recommend that the 2011 Easements Bill [ie the draft bill in the Commission’s 2011 report] be amended prior to its introduction to provide that where a right to light has not been used for a continuous period of five years, there should be a rebuttable presumption that it has been abandoned.”

Furthermore: “Lands Chamber of the Upper Tribunal be extended so as to enable it to make orders for the modification and discharge of easements and profits à prendre”.

The Coventry case
A new UK Supreme Court case (2014) may be of interest particularly regarding Shelfer principles (injunction v damages). Coventry and others v Lawrence and another [2014] UKSC 13.  The issue was whether the right to cause noise nuisance (of a motor track) could arise by prescription. Nuisance is unreasonable interference with another person’s use of their own land. Lord Neuberger ruled such a right could arise if a business had created a nuisance for more than 20 years without substantial interruption – but there would be practical problems about asserting such a claim (in particular that the owners of the track would have to show 20 years of unopposed nuisance use, not merely 20 years of motor racing on the site). On Shelfer Lord Neuberger said at 119 that:

“the approach to be adopted by a judge when being asked to award damages instead of an injunction should, in my view, be much more flexible than that suggested in the recent cases of Regan and Watson. It seems to me that

(i) an almost mechanical application of A L Smith LJ’s four [Shelfer] tests, and
(ii) an approach which involves damages being awarded only in “very exceptional circumstances”,

are each simply wrong in principle, and give rise to a serious risk of going wrong in practice. (Quite apart from this, exceptionality may be a questionable guide in any event – see Manchester City Council v Pinnock (Secretary of State for Communities and Local Government intervening) [2011] 2 AC 104, para 51)”.

The justices in this case seemed agreed that Shelfer has passed its sell-by date and would not have been followed so “slavishly” in recent cases. However, no other regime was put in place by their lordships. Lord Sumption said:

“There is much to be said for the view that damages are ordinarily an adequate remedy for nuisance and that an injunction should not usually be granted in a case where it is likely that conflicting interests are engaged other than the parties’ interests In particular, it may well be that an injunction should as a matter of principle not be granted in a case where a use of land to which objection is taken requires and has received planning permission.”

Note on the original law

According to the Prescription Act 1832, section 3:

“When the access and use of light to and for any dwelling house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.”

For prescription to work, the owners or occupiers of the land that benefits (the “dominant tenement”) must access the “easement of light” (as with any other easement such as a footpath across a neighbour’s land) without secrecy or force. The owners of the other property (the “servient tenement”, that is, the land with the burden of the right) must have acquiesced with neither an actual agreement (which would make it a limited licence) nor evidence of opposition. The right to light is a negative easement – it prevents the servient owner acting in a way that would deny or reduce the benefit.

Cases and materials
Allen V Greenwood [1980] Ch 119
Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287
HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch)

Law Commission’s 2011 report (pdf):
 Making Land Work: Easements, Covenants and Profits a Prendre [PDF, 1.67mb]

A report on the case is here

About alrich

Journalist and blogger on legal and financial/economics issues

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