The Law of Rights of Light

Michael Barnes KC

• Publisher: Hart Publishing
• Year: 2016
• Print ISBN: 9781849468817
• eBook ISBN: 9781509905522
• Edition: 1
• Topic: Law
• Subtopic: Property Law
• Index: Law

The book provides the authoritative statement on the current law on rights of light in England and Wales. The protection of the access of natural light to properties has been a part of our property law for centuries but in recent years has come into particular prominence. This is due to a number of reasons including the existence of easements of light being regarded as an inhibition on new development and the unsatisfactory nature of parts of the law on this subject. This has given rise to two reports in recent years by the Law Commission (one on easements generally in 2011 and one on rights of light specifically in 2014), both containing major proposals for law reform. The purpose of this legal textbook is to explain the law as clearly as possible. In practice rights of light issues and disputes involve technical subjects and inevitably answers to these questions require the expertise of technical experts such as light surveyors. An attempt is made in the book to explain from a non-technical point of view the way in which measurements and calculations are carried out in this area. It is therefore hoped that the book will be of use to lawyers as well as to landowners who may not always understand these technical subjects and to surveyors who may not always be familiar with the legal concepts and difficulties involved in the area of the law of rights of light.

1

Introduction

(A)THE NATURE OF LIGHT

1.1The Book of Genesis tells us that in the beginning, God created the heavens and the earth. Darkness lay on the surface of the deep until God said: ‘Let there be light, and there was light. God saw the light was good…’.¹ From the earliest days of mankind on earth, light has been synonymous with good and beauty. Tennyson, in Idylls of the King, referred to ‘that pure severity of perfect light’.² Darkness has the opposite connotation.

1.2Apart from its religious and poetical aspects, and on a more practical level, natural light is essential to life. Without it, photosynthesis could not take place in plants. Our only significant source of natural light is from the sun, either as direct radiation or as radiation reflected from the moon and other planets in the solar system which are visible. Other stars provide a beautiful but not normally significant source of light. The natural recurring system of day and night, as the earth rotates, dictates the pattern of life for all persons. The fluctuating amounts of light which fall on a particular area of land as the earth, with its slightly tilted axis, orbits the sun, create the differences between summer and winter in both the northern and southern hemispheres. Natural light is therefore a prize, and it is not surprising that rules for protecting its access to one property over another property have developed in systems of law. In England and Wales the protection is provided mainly as an aspect of the more general law of easements.

1.3Early mankind, though dependent on natural light, of course knew nothing of its nature. In early Greek philosophy, light was not one of the four essential elements of air, water, earth and fire, of which it was thought reality was composed.³ It is only through modern science that the nature of light has come to be understood. Isaac Newton considered light as a stream of separate corpuscles, a description which in a sense accords with modern scientific ideas. However, subsequent experiments showed that light behaved in many ways as a wave, such as a water wave; for example, light could ‘bend’ around objects in its path, and two waves of light could interfere with each other, creating positive or negative interference rather as water waves could.⁴ James Clerk Maxwell in the nineteenth century produced his equations which state the nature of electricity and magnetism, and concluded that light was a part of the spectrum of electromagnetic waves or radiation.⁵ Radiation with a longer wavelength than that within the visible spectrum, such as some radio waves, cannot be seen by the human eye; radiation with a shorter wavelength, such as X-rays and gamma radiation, is also invisible to our eyes. The first category was called infra-red radiation and the second category was called ultra-violet radiation. The radiation itself of all types travels at about 300,000 kilometres per second (186,000 miles per second) in a vacuum. Light of different colours is produced by radiation of different wavelengths within the total visible band of the electromagnetic spectrum. Light within particular small bands of wavelengths, and thus of a particular colour, is called monochromatic light. The light from the sun is white light, which is an amalgam of light of different wavelengths. It can be separated into its different wavelengths and colours by passing it through a prism. The light we receive from the sun is created mainly by the fusion of hydrogen atoms into helium atoms in the sun. Because of its speed of travel and the distance involved, it takes about eight minutes to reach us after its creation.⁶

1.4These matters remain a good general description of light, but the development of quantum physics in the last century by persons such as Planck and Einstein showed that light (and other electromagnetic radiation) exists and travels as discrete ‘particles’ of energy, called photons. Einstein was awarded a Nobel prize for demonstrating this, by way of the photoelectric effect, rather than for his better-known theory of relativity.⁷

1.5Humans have long sought to supplement natural light from the sun by light artificially created. Earlier use of candles gave way to the creation of light by oil and gas lamps. In the 1960s, street lighting in the Temple in London was by gas lamps, with a lamp-lighter who turned each lamp on each evening. Today, of course, artificial light is almost wholly created by electricity. One of the issues in the law of the rights of light is how far the effect of artificial lighting is relevant to the need to protect properties against the loss of natural light.⁸

(B)LEGAL PROTECTION OF THE ACCESS OF LIGHT

1.6The legal protection of the access of light to a property is the protection of light coming to buildings on properties. Primitive communities of hunter-gatherers or those who came to depend on the husbandry of animals and the harvesting of crops had little concern over any obstruction of daylight to their land. The advent of the construction of buildings in which to live and work brought about a radical change. Buildings protect people from the elements, but in doing so they inevitably limit the natural light which can pass into the building. The answer was obviously the placing of windows or similar apertures in the building with a form of glazing so that the building remains watertight but natural light can pass through the glazing in the windows. The modern tendency has been to increase the size of windows. Houses built in the seventeenth century often have small windows, whereas large modern offices give the impression of being constructed largely of glass.

1.7The upshot of all this is that rooms in buildings may receive only a limited amount of light through a window or windows. If some other structure is built nearby, plainly it may reduce the amount of light which enters a building. Light from the sun is generally perceived as travelling in a straight line,⁹ and much of the light which travels to one property is likely to pass across neighbouring properties. This is, of course, especially so for windows set in a vertical wall. In rural locations or in low-density urban developments the problem may not be acute, since the further away an obstruction is from the property whose light is affected, the less the effect is likely to be. In urban areas of high-density development and tall buildings, the problem can be more acute. A new building constructed up to a common boundary between two properties may substantially reduce, or even largely remove, the access of light over the property built upon to its neighbouring property. The law relating to rights of light has been developed to answer the questions of whether and to what extent this can lawfully be done. The purpose of this book is to explain the law on this subject. It should be noted that this aspect of the law is concerned wholly with the access of natural light to one property laterally over or across a neighbouring property. Natural light is, of course, also received by a property vertically from above it. The owner of a property generally owns the air space above the property, so that any obstruction of that air space without his consent will be a trespass against the owner and can be prevented.¹⁰

1.8A major aspect of the law and protection of rights of light today is the difficulties which are caused to commercial developments in densely packed urban areas such as Central London and the central areas of other large cities. On occasions, landowners try to reduce the impact of this difficulty on further redevelopment by making rights of light agreements with adjoining landowners. The aim is often to prevent the acquisition of rights of light to each other’s property, and to permit any future redevelopment irrespective of its effect on the access of light. Leases, particularly of commercial property in urban areas, often contain provisions permitting the landlord to develop land owned and retained by him irrespective of any reduction caused to the access of light to the property demised. Such provisions are effective in preventing the tenant from acquiring a right of light by long enjoyment of the access of light against that retained land.¹¹ Very often these precautions have not been taken, and a landowner wishing to redevelop his property, and with planning permission to do so, may find that the redevelopment is frustrated by rights of light owned over his property in favour of other property arising from the long and uninterrupted past access of light over his property to that other property. There are ways in which such situations might be prevented, perhaps by mutual rights of light agreements as just mentioned, or by the service of notices in good time under the Rights of Light Act 1959.¹² In these circumstances, and if these precautions have not been taken, the developer may be faced with the threat of an injunction to prevent the proposed development. His only recourse may then be to abandon the development or modify it, or to pay what may often be a substantial sum of money to buy off the exercise of rights of light by an adjoining owner.

1.9The law fulfils the function of protecting the access of light to a building mainly, though not exclusively, by the operation of the law of easements. Other areas of law may be important, such as restrictive covenants which bind land and the operation of the law of town and country planning, but the core of the subject is the law of easements. A right of light is a particular type of easement and is subject to general rules which govern easements as well as to its own particular rules. Statutes have in part brought about these particular rules. For example, the acquisition of a right of light over a property by the enjoyment of the access of light over that property for a period is regulated by a different and looser form of required use than that applicable to the acquisition of other types of e...

Table of contents

• Cover
• Dedication
• Title Page
• Foreword
• Preface
• Contents
• 1. Introduction
• 2. The Legal Nature of the Right of Light
• 3. Content of the Right of Light
• 4. Acquisition of Rights of Light by Deed
• 5. Acquisition of Rights of Light by Prescription
• 6. The Measurement of Light
• 7. Remedies
• 8. Extinguishment and Overriding of Rights of Light
• 9. The Rights of Light Act 1959
• 10. Town Planning
• 11. Registration and Transfer of Easements of Light
• 12. Reform
• Appendices
• Glossary
• Index
• Copyright Page