Property Matters January 2007

Lessons on rights of light

The injunction granted in Regan v Paul Properties Ltd [2006] required the partial demolition of a development in order to preserve rights of light. It is one of a short sequence of recent cases relating to rights of light, which have some lessons for developers and also for neighbouring occupiers.

NO LIGHT, NO RIGHT

Imagine a building with an entrance lobby, which has several windows; two of those windows are completely blocked on the inside by panelling, and have been so during the entire twenty-year period needed to acquire rights of light by prescription.

Have rights of light been acquired through those windows?

The answer is of course no.

S.3 of the Prescription Act 1832 requires that the access and use of light “shall have been actually enjoyed”. In Tamares Ltd v Fairpoint Properties Ltd [2006], the court had no hesitation in coming to that conclusion.

ELECTRIC LIGHT IS NO SUBSTITUTE

In Midtown Ltd v City of London Real Property Co Ltd [2005], the projected development would have restricted the natural light to the claimant’s office premises very severely.

The developer argued that the claimant’s offices had always been, and would continue to be, lit by artificial light during all working hours, and so the reduction in natural light would be immaterial. The court rejected this argument, which had potential to make rights of light entirely meaningless for most workplaces.

THE “50:50 RULE” IS NOT A RULE

Adequate light within a room is considered to be 0.2% of outside daylight measured at table-top height (85cm above the floor).

The convention is that if an interference with light reduces the area within a room which has at least that amount of light to less than 50% of the total room area, it amounts to an actionable nuisance (the “50:50 rule”).

But that is not the law.

The classic statement is in Colls v Home and Colonial Stores Ltd [1904]: “an owner of ancient lights is entitled to sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment of his house as a dwelling-house, if it is a dwelling-house, or for the beneficial use and occupation of the house if it is a warehouse, a shop, or other place of business”.

That is rather impressionistic, and the courts have found it convenient to adopt the 50:50 rule as a useful guide. But that is all it is.

In Regan, while the judge applied the 50:50 rule, he also took into account the adverse effect of the loss of light on family activities of “painting, modelling, dressmaking, writing and the like” (the family appears to be straight from the pages of Jane Austen).

In the Tamares case, where actionable nuisance was established, in relation to windows giving light to a staircase, there was no reference to the 50:50 rule at all. Instead, the court was concerned that the staircase would be less safe.