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Rights to light: how to protect your development site

Gateley Legal

Rights to light can be a major headache for developers, especially when buildings on neighbouring properties are enjoying light from the site to be developed.  One possible solution for the developer is to register a light obstruction notice.

The background issue is that neighbouring properties can sometimes obtain rights in relation to light through long use, called ‘prescriptive rights’. A prescriptive right of light is a right to enjoy the natural light that passes over someone else’s land through defined apertures in a building – these include windows, skylights and glass roofs.

Once established, a right of light entitles the adjoining owner to receive sufficient natural light through the windows to allow the space behind to be used for its ordinary purpose. So these rights can prevent developments of new buildings or works that would increase the height or position of existing buildings where the effect would block out light currently enjoyed by a neighbouring property.

To establish an absolute right of light through long use, the owner of the neighbouring property must show it has enjoyed 20 years’ uninterrupted access to light. To prevent neighbouring properties from establishing this right, development site owners need to interrupt the 20 years’ use. This can be achieved in several ways, many impractical, such as erecting a physical obstruction to interrupt the light for a year.  Developers should therefore consider a light obstruction notice.

Light obstruction notice

This type of notice can, by application to the local authority, be registered as a local land charge against the neighbouring land that is potentially acquiring the right to light.

The effect of the notice is to erect a hypothetical light obstruction of specified dimensions in a specified location. They are often expressed as a screen of infinite height and prescribed width. The obvious advantage is that the developer will not need to incur the cost and practical difficulties of creating and maintaining a physical obstruction for a year.

If the notice remains in place for at least a year before the end of the 20 year period, this constitutes sufficient interruption to cancel any years accrued by the neighbouring landowner towards acquiring a prescriptive right to light.

However, there are some points to note:

  • the notice is only effective for a year, after which time the neighbouring landowner can potentially continue to gain a prescriptive right (after another 20 years), and
  • the development site owner must obtain a certificate from the Lands Chamber of the Upper Tribunal granting the right to make an application to the local authority to register a notice.

The Tribunal’s criteria for granting a certificate is one of publicity – the neighbouring land owners must be made aware (in so far as possible) of the application. This is to give them the opportunity to show if they have already acquired a prescriptive right to light. The Tribunal may outline the steps the developer must take to inform the neighbouring landowners.

The Tribunal can provide two types of certificate:

  1. a definitive certificate – this certifies that adequate notice has been given to all persons likely to be affected by registration of the notice; or
  2. a temporary certificate – this certifies that, in the Tribunal’s opinion, the case is one of exceptional urgency and a notice should be registered immediately for a temporary period of up to six months. A temporary certificate is given when the neighbouring landowner is close to acquiring a right to light.

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