An infringement on a neighbouring property’s right to light may be actionable as a legal nuisance.
A prospective claimant would first have to establish that there has been an actionable reduction in light passing through a window (or other aperture) in a building. That, of course, relies on the claimant being able to establish that a right to light actually exists. Such rights (which essentially exist in the nature of easements) will be present where:
They have been created expressly (or impliedly) by deed; or
They have arisen via long use under the rules of prescription.
Where a right to light exists, the claimant will then have to establish that the interference (or, in the case of a “planned” development, the “proposed” interference) will amount to a legal nuisance.
The test for the interference was set out by the House of Lords in Colls v Home & Colonial Stores [1904] AC 179, where the Court explained that nuisance will be established where the reduction in light caused by the obstruction is “…such as to make the building a sensible degree less fit than it was before for the purpose of business or occupation according to the ordinary notions of mankind.”
Of course, the concept of “the ordinary notions of mankind” has evolved since 1904 and since the Court, in its own analysis, linked the “purpose” of the building in question to the light level that would be appropriate, the standard of light to be delivered through any given aperture will vary depending on the use of the building.
It can therefore be quite a complex task to ascertain whether a planned development would infringe on adjoining owners’ rights. As a result, it is advised that legal advice is sought.