FREE Practice Note: quick guide to enforcing a right of light claim

FREE Practice Note: quick guide to enforcing a right of light claim

Before a right of light claim can be brought, it is necessary to check that:

  • the right of light exists, and
  • it will or has been substantially interfered with

If a right of light does exist, a landowner can prevent someone interfering with that light.

Establishing actionable interference

Seek specialist surveyor's advice to ensure the right of light exists and has been infringed.

It is not enough that there is less light than before as there must be substantial deprivation of light that prevents the owner from carrying on his business as he did before the light obstruction. There is no fixed test, but a technical methodology developed by Percy Waldram (known as the 'Waldram test') has formed the basis of expert evidence given in rights of light cases since the early 1900s (such as in Colls). Whilst this has been criticised by the courts it is still widely used.

References: Colls v Home & Colonial Stores [1904-07] All ER Rep 5

Along with evidence of lay persons, the overriding consideration is still whether there is substantial deprivation of light according to 'the ordinary notions of mankind'.

 References: Carr-Saunders v Dick McNeill Associates [1986] 2 All ER 888

Remedies for infringement

If a right exists, there are two ways that an infringement of a right of light can be resolved:

  • consent and compensation
  • injunction/damages

Consent and compensation

This is the most common way of resolving a right of light claim.

If a developer is considering building, or has commenced building, negotiations should be started--the interference may be capable of being exchanged for monetary compensation or some other benefit.

The terms of any settlement agreement must be recorded in a deed. The deed should then be registered with the Land Registry using Form AP1.

Injunction and damages

A property owner whose light will be interfered with (or has already been interfered with) may apply for an injunction. This may be:

 References: Shelfer v City of London Electric Lighting Company [1891-94] All ER Rep 838

  • a prohibitive injunction if the work has not started, or
  • a mandatory injunction if the work has started

If successful the court can order that the development be demolished or cut back to prevent the interference with the right of light. The court also has a discretion to award dam

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