The relationship between section 203 of the Housing and Planning Act 2016 and the right to light
What is a right to light?
A right of light is an easement to enjoy the natural light that passes over someone else's land, and then enters through defined apertures in a building. Apertures include windows (with or without glass), skylights and glass roofs.
Once established, a right of light entitles the beneficiary to receive sufficient natural light through the aperture to allow the room or space behind the aperture to be used for its ordinary purpose (Colls v Home & Colonial Stores Ltd [1904] AC 179).
Enforcing a right of light
To enforce a right of light, it is not sufficient to show that there has been a net reduction in the amount of light available, the loss of light must amount to a nuisance (Higgins v Betts [1905] 2 Ch 210). If a right of light has been or is going to be infringed, the owner of the right of light is entitled to apply for an injunction against the developer. However, the court has discretion to award damages instead of an injunction.
An application to the court can be made by the owner of a right of light at any time before the development is completed seeking an order to prevent the development, or after the development is completed seeking an order that the development be demolished or cut back to prevent interference with the right.
Reaching an agreement on right to light
Negotiations can be opened between the developer and the owner of a right of light. Before beginning negotiations, the developer should consider whether to obtain insurance against any potential infringement of a right of light.
Proceeding with a development without agreement on right of light is highly risky, and can be expensive. In the event that the owner of such a right makes a successful injunction, the developer is at the mercy of the local authority to utilise its powers in s 203(1) of the Housing and Planning Act 2016 (HPA 2016) to overturn any orders made.
Use of section 203 of the Housing and Planning Act 2016 to thwart an injunction
The effect of section 203(1) HPA 2016 is to confer statutory authority to carry out building or maintenance work even if involves interfering with a relevant right or
interest. A relevant right or interest is defined in section 205(1) HPA 2016 as a 'relevant right or interest’ means any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land (including any natural right to support). That definition includes rights of light.
In order to engage the statutory authority conferred by section 203 HPA 2016, four conditions must be satisfied:
- The land has become vested in or acquired by a specified authority on or after 13 July 2016 (or appropriated by a local authority for planning purposes) or the land is ‘other qualifying land’ as defined in section 205;
- There is planning consent for the building or maintenance work or use;
- The specified authority could acquire the land compulsorily for the purposes of building or maintenance work or for the purposes of erecting or constructing a building or carrying out any works, or for the use; and
- The building or maintenance work or use is for purposes related to the purposes for which the land was vested in or acquired or appropriated by the specified authority.
If section 203 is engaged, a developer will have a defence to an injunction claim. In effect, the owner of the right to light’s private law claim will be replaced by an entitlement to compensation pursuant to section 204 of the HPA 2016.
How to dissuade a local authority from exercising its power in s 203
Many local authorities publish the criteria which they will apply when considering whether acquisition or appropriation (as required by the first condition) is necessary in order to engage the provisions of section 203.
There are several essential considerations which we would expect a local authority to take into account when considering whether to acquire land in order to engage the section 203 provisions (for example, will the acquisition of the land and consequent engagement of section 203 of the HPA 2016 facilitate the development for which planning consent has been granted, or a similar development). If a local authority, when deciding whether to acquire the land in order to engage the provisions of section 203 were to fail to take into account one or more of those matters, the decision may be susceptible to a successful application for judicial review.
In many cases local authorities are hesitant to form the view that it is necessary to acquire land in order to engage the section 203 veto, as it is not clear that those entitled to the rights of light are prepared to seek an injunction to enforce their rights. Indeed in some cases the use of section 203 is threatened in order to seek to reduce the amount of compensation payable. Where the owner of a right to light has brought proceedings seeking an injunction against a developer, local authorities are likely to consider that there is a stronger case for them to act to engage the section 203 override.
Often the approach most likely to dissuade a local authority from exercising its power to acquire land so as to engage section 203, is to draw its attention to the factors to be considered, and to make plain that you are likely to bring an application for judicial review of that decision if there is any public law error.
Consider objecting to applications for planning permissions
If you are the owner of a right to light, and that right is to be infringed upon, we recommend (if applicable) that you object to the developer’s application for planning permission that will facilitate said development.
When making a decision on a planning application the local planning authority must take into account a number of factors including material considerations. While private rights to light are not normally a factor that is a material consideration (and therefore cannot usually be taken into account by the local planning authority) there may be other matters that are relevant material considerations (such as daylight/sunlight impacts (slightly different test as to whether or not breaches guidelines compared to right to light) overshadowing, overlooking or loss of privacy and density of buildings).
An objection essentially provides another opportunity to indirectly challenge the infringement upon the right to light, and doesn’t leave you with the sole option of seeking an injunction.
How we can help
Our real estate solicitors can advise across a range of real estate matters. If you would like to speak with a member of the team you can contact our real estate team (Holborn: 020 3826 7523, Putney: 020 3826 7518) or complete our online enquiry form.