Archive for December, 2010

Light on the Right to Agree

A right to light may be claimed, inter alia, by specific grant or pursuant to the Prescription Act 1832.  By s3 of that Act “When the access and use of light to and for any dwelling house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.”

The 20 year period is calculated backwards from the claimant’s proceedings commencement date.  Further, nothing shall amount to an interruption under the Act unless such is or is deemed to be for a period of one year.  Interruption of one year is usually caused by the erection of a new building but pursuant to s2 of the Rights to Light Act 1959, a light obstruction notice can be sought and registered.  This is equivalent to obstruction by an opaque structure.

The question before the Court of Appeal in Salvage Wharf Limited v Birmingham Development Company Limited and another [2009] EWCA Civ 21 was whether an undertaking not to enforce a right to light triggered the proviso re consent or agreement under s3 of the 1832 Act.  The undertaking had been incorporated into an agreement between neighbours and related to a particular proposed development.  This anticipated development was later extended and altered.  The Court of Appeal emphasised that the issue to be determined was one of construction of the particular agreement before them.  Nevertheless, their finding that, in the light of later developments, the agreement did not give rise to the proviso in the 1832 Act, underlines that care must be taken in recording any agreement, whether it relates to a right to light or otherwise.

If you want to hear more about rights to light, which are giving rise to many reported cases, or the recording of dispute settlements, contact Hatherleigh Training.