How much do you know about rights of light? We asked Stuart and Paul from our Rights of Light team, to test our knowledge by asking us a series of questions over the next few weeks.
1. Acquisition – Building Types
Q: Which of these buildings do you think are capable of enjoying rights of light?
A: A right of light can only be enjoyed in respect of a ‘building’. As described by the county court judge in Smith & Co (Orpington) v Morris , the principal elements for constituting a building are:
- Does the structure give substantial shelter from the elements?
- Is it one which ordinarily requires light by means of windows or fixed apertures?
- Does it have windows?
- Is it so attached to the soil as to pass under a conveyance of the land without specific mention?
It is therefore likely that all of the buildings shown can acquire a right of light, contrary to a common misconception that only residential buildings ought to be considered. This erroneous belief derives from daylight and sunlight guidance for planning assessments, which generally focuses on safeguarding light to habitable amenity (save for some sensitive non-domestic receptors, such schools, and hospitals).
2. Acquisition – Aperture Types
Q: Which of these apertures do you think are capable of enjoying a right of light?
A: It is clear from case law that a right of light can only be enjoyed through an ‘aperture’ which purports to admit light (e.g. Tapling v Jones ).
It is therefore unlikely that a claim based on light to the vented openings will be successful, provided they have not admitted light in the past. There is some uncertainty as to whether car-park apertures can acquire a right of light, given they are mainly intended for ventilation; albeit it might be argued that light is useful to car-park users and the structure could be re-imagined to accommodate a different use in the future. Rooflights and opaque-glazed windows are both capable of acquiring rights of light.
3. Prescription Act 1832 – Building Ages
Q: Which of these buildings do you think are likely to enjoy rights of light under the Prescription Act 1832 through long use?
A: The Prescription Act 1832 provides that a building will acquire a right of light where it has enjoyed uninterrupted light for a period of twenty years, immediately before the present date.
Only the development in the bottom left corner – which is clearly less than 20 years old – will therefore not have acquired a right of light under the 1832 Act. One should always be mindful however that rights of light can also be transferred from old buildings to new, provided the windows are in sufficiently similar positions (e.g. Ecclesiastical Commissioners v Kino ), and expressly granted on title. Hence, it is essential at the outset that thorough investigations are undertaken by an experienced rights of light surveyor (with the help of a solicitor if necessary) before adjacent properties are discounted.