Neighbour’s Extension Blocking Light – Right to Light Planning Objection

You bought your home because of its lovely, light, airy room.  You love spending time in your rear/side study, or your dining room, sitting at your table, reading a book or a newspaper, enjoying the nice light conditions that attracted you to the house in the first place.

Or, you may own, or lease a commercial property. You have lovely offices, with well-lit meeting rooms, a welcoming entrance hall and staircase, and a nice, naturally lit reception – all currently pleasant and welcoming to your staff and clients. And now all that is in jeopardy.

Your neighbours wish to build a new development close to your building. This may be a whole new building, or perhaps an extension to their existing building. You are concerned about the loss of light to your rooms. You wonder how this will impact upon your enjoyment and use of your rooms, and are concerned about the loss of value and/or impact upon marketability to your property.

Whist your neighbours will have their own reasons for wishing to develop their site/property, you clearly would like to ensure your home, or commercial property is protected against adverse impact from the loss of light.

We understand. Even if a neighbouring scheme manages to gain planning permission, all may not be lost. Outside of planning laws, you may have a legal right to light. There are numerous ways a property can acquire a right to light. Sometimes this is via implied or express grants, often noted in yours and your neighbours title deeds. It is always worth checking these documents to see if you may have some form of protection via this route.

However, the most common way for a property to have a Right to Light is by having gained it via The Prescription Act 1832. To acquire this right, in very simple terms, your window openings need to have been present (and unobstructed) for 20 years. If your window openings are not quite yet 20 years old, but have been there for 19 years and 1 day, or more, you will acquire a right to light at Year 20.

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    “I have worked with Smith Marston and in particular Adrian Marston on a number of rights of light matters and have always found his knowledge of this specialist area to be first class. This coupled with Smith Marston’s very high service standards have enabled us to secure some excellent results in taking preventative action to safeguard legal rights that would otherwise have been infringed. One particular example involved taking steps to require a development to be halted and, ultimately, reversed, primarily on the evidence contained within Adrian’s report as to current and potential future losses. Adrian’s reports cut through a lot of the complicated jargon often used in these matters and presents the information necessary to take effective action in a clear and logical way. I would not hesitate in recommending him.”

    James Beat, Partner, Child & Child
    “I used Smith-Marston for a Right to Light matter in 2015. A neighbour to my mother had planning permission for a two-storey extension close to her bungalow. Adrian’s assessments showed that her natural light, in some key areas of the house, would be reduced from 65% to 18% because of the development. Adrian’s dealings with the very determined neighbour and his equally determined surveyor were always polite, professional, and VERY effective. As a result, the planned extension was reduced to a single-storey with little or no effect on Right to Light. Very satisfied and grateful.”
    Gus Gresham, Party Wall Surveyor
    “Dear Adrian, we would like to take this opportunity to thank you and your team for such an efficient proactive survey, and invaluable advice. We are delighted our neighbours have started to remove their first-floor extension, work is almost complete. Hopefully going forward we will not need such a service but if we did we would not hesitate in using your company again and would certainly recommend you to all. Thanks again.”
    Mrs C, Cheshire
    “Dear Mr Smith, we remain very grateful to you for your professional advice but also would like to thank you and your colleague Adrian Marston for your many kindnesses and patience when clarifying technical and legal issues. We greatly appreciate your help and support, without which we doubt that we would have persisted this far.”
    Mrs H, Hull
    “I instructed Adrian as an expert in a Right to Light case involving commercial property in Newcastle. Adrian’s specialist knowledge of this field, attention to detail and commercial advice were invaluable in achieving a good outcome for my client.”
    Ursula Collie, Ursula Collie Mediation

    Frequently Asked Questions

    A ‘right to light’ takes no account of sunlight, overshadowing or orientation.  It relates ONLY to view of the sky, and only to rooms served by a window (or glazed door) opening.  As such, concerns regarding loss of sunlight to windows, or to external for amenity areas such as gardens and patios, are not covered by right to light law.  You may have grounds for objecting on planning grounds, for loss of sunlight to windows and gardens, but, if Planning Permission has been granted, (or is not required), a ‘right to light’ will not help you with sunlight concerns.  Of course, having a legal right to light may ultimately help you if you can prove your view of the sky will be diminished to a certain level.

    Under most circumstances, no.  A legal right to light is most commonly gained by enjoying light continuously for 20 years.  Properties that are less than 20 years of age will not normally have a right to light, unless you can demonstrate you have a right to light by other means.  This could be by having an express right granted in your property deeds, or, you may have an implied right due to a transactional sale of land.  If your property stands in place of an old building that did previously have a right to light (but was demolished), and the new windows are positioned in the same location as the old ones, the old right to light may have transferred to your new property.

    Your scenario is a typical one. In probably 9 out of 10 cases, the answer would normally be ‘no’. The reason for this is that a legal right to light (acquired via the passage of 20 years-time and under the Prescription Act 1832) measures how much of your dining room, at a ‘working plane’ of 850mm above floor level (about desk height), can see a little bit of sky (0.2% of the dome of the sky). Only if your room can no longer see this small amount of sky over 50-55% of its area will you have a case.

    In the scenario you describe, you may find you will lose ‘some’ view of the sky when looking towards your neighbours planned extension, but, most probably, your view of the sky when looking straight out of your dining room window, across you rear garden, and in the other direction, will remain unchanged. When looking in these other directions, it is likely that the view of the sky will still be visible in your room over more than half its floor area (at the working plane). Most legal right to light problems occur when a development is ‘opposite and close’ to a window.

    The exception to this is when your room is very deep and/or dark to begin with. In such situations, it is possible that your room is inadequately lit even before your neighbour builds their extension. If so, any further loss of sky view may make your already bad situation worse, which could result in a legal injury and thus give you a case.

    You do not have a right to a ‘view’.  However, if you have a right to ‘light’, and if you can demonstrate a loss severe enough to cause a legal injury, this may assist you with an injunction which clearly could have the end result of not only protecting your ‘light’ but also your ‘view’.

    Unfortunately, this is correct.  The Local Authority Planning Department do not assess legal easements.  A right to light is an easement.  They should assess the impact of the development upon your amenity, thus, the daylight and sunlight that your home enjoys.  Thus, you may find that despite satisfying planning policies, legal injuries to your legal ‘right to light’ may still occur.  This is not uncommon.  We come across this day in day out.  We regularly see situations where people have gained Planning Permission, Building Regulation Approval, have a Party Wall Award in place, and still end up falling foul of legal right to light matters.  Thus, if you are still concerned, even if your neighbour gets planning permission (whether this be a small domestic extension or for example, a large commercial development such as a block of apartments, or a hotel), all is not lost.  You may still have a legal right to light case.

    Absolutely not.  If your right to light was gained via the Prescription Act 1832 (20 years continuous enjoyment), you will lose it if it is blocked for 12 months.  Therefore, you must assert your rights immediately.  If matters were to end up in Court, actions of both parties to the dispute will be closely looked at.  Thus, if you remained silent, and did nothing to assert your legal rights until for example, the works had progressed, you may find it harder to get an injunction than if you had raised the subject before the neighbour made a commitment to their scheme.  Courts like to see parties playing ‘fair’.  If they feel you raised a matter ‘too late in the day’, they may consider it would be oppressive to the developer to grant an injunction.  So, if you have concerns – make them known.

    Technical Information on Right of Light Matters

    Assistance for Neighbours to a Development

    If a neighbour to a development has a room which would suffer a legal injury in respect of right of light they are entitled to compensation or an injunction to prevent the offending part of the development from being constructed.

    This stands true even if the developer is a multi-national company and the neighbour is an individual with a legal injury in terms of loss of light to just one room. There are cases where a Judge has ordered a partial demolition of a development even after its completion and occupation. An example of this is a court ruling against Highcross in Leeds. Notably, an appeal which was due to be held at the end of March 2011 was cancelled due to an out-of-court settlement – this means that the original court ruling remains unchallenged and the case law from that (an injunction against the developer in respect of a neighbouring commercial property) stands.

    At Smith Marston, we are able to carry out a wide range of services from an initial assessment of the facts to determine whether there would, in fact, be a legal right to light injury onwards to negotiating with the developer to agree a change to the design of the building or for compensation. Normally, any agreement would also include reimbursement of associated professional fees.

    We can assess other professional’s right to light assessments or we can carry out our own full and detailed rights of light calculations. We can also act in the role of Expert Witness if the matter were to proceed all of the way to Court.

    Expert Witness

    Although most right of light disputes are settled out of Court, there are occasions where the dispute does proceed to Court and a CPR35 standard Expert Witness report will be required.

    To be valid for inclusion within a Court submission, an Expert Witness report must be in compliance with the Civil Procedure Rules part 35 (CPR35).

    At Smith Marston, we are able to provide Right to Light Expert Witness reports and have had disputes proceed to Court in the past.

    Philip Smith, one of the two Directors at Smith Marston, has over 20 years of experience of producing Expert Witness reports and he has been accepted onto the RICS Expert Witness Registration Scheme, confirming the necessary level of expertise to act in this respect.

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