WHAT IS A RIGHT OF LIGHT?
A right of light is an ‘easement’ or ‘right’ over someone else’s property and is the right to receive sufficient natural light through defined openings i.e. windows, so as to allow the ordinary use of the building.
HOW IS A RIGHT OF LIGHT CREATED?
It can be created by ‘express grant’, ‘reservation’ or may be ‘implied by law’. Usually, a right of light is acquired by long use or prescription.
- * under Common Law – this arises if it can be shown that the building has enjoyed continuous access of light since time immemorial (1189)
- * under the doctrine of ‘lost modern grant’ – it is acquired by proving enjoyment over any 20 year period.
- * under the Prescription Act 1832 – it is acquired by proving 20 years continuous enjoyment.
WHEN IS A RIGHT OF LIGHT INFRINGED?
The beneficiary of a right of light is entitled to a level of light sufficient for the comfortable use and enjoyment of the particular building. An actionable common law nuisance occurs if it falls below this level.
HOW IS THE LOSS OF LIGHT ASSESSED AND WHAT STEPS CAN BE TAKEN?
The loss is assessed by measuring the light which remains and NOT the amount removed or lost. Here, the 50-50 rule is usually applied whereby an owner cannot complain if at least half of a room remains adequately lit – this is called the ‘grumble point’. Measurement is very technical and requires expert advise. If the reduction is sufficiently great, the affected owner may seek an injunction to –
- prevent the development
- have it reduced
- demolish the offending part, if already built.
- seek damages to compensate for the loss/reduction.