Rights of Light – Parasitic Rights through limited transference and LONs

Transference

It is a fundamental principle that a right to light may be transferred where a property is rebuilt in such a way that the new window openings overlap those that previously existed so long as they are coincident with the original location. Where such a right can be demonstrated to exist, and an adjacent development would cause an actionable loss of light then other windows and rooms where there has been no transference may be considered for parasitic losses. In theory this would include even those windows and rooms in completely new parts of a development (Scott v Goulding Properties Limited (1973) IR 200). For example, where the building has been raised or extended.

This may seem inequitable especially if the actionable loss is small and the parasitic losses large. It is therefore worth contemplating whether light obstruction notices might be used to limit liability in damages.

In this context, the use of the term “actionable” is a form of shorthand in that the loss of daylight would reduce the area within the 0.2% contour below 50% of the room area. In fact, whether or not the loss is actionable is a matter for the courts to decide.

Bickford Smith S. and Francis A. state in the book on Rights Of Light Modern Law that “Where the plane of window, or the position in the wall in which it is situated are altered, whether the right to light is preserved cannot be answered simply by reference to coincidence between the old and new aperture. The court’s approach has been to uphold the continuation of rights to light provided the light continues to be received by the dominant building in the same general position (National Provincial Plate Glass Insurance Ltd v Prudential Assurance Co. (1837) 6 ChD 757.”

Bearing in mind the comments of the court in National Provincial Plate Glass Insurance Limited, it is generally accepted that coincidence is satisfied if the new elevation is within 500mm either forward or behind the original elevation. De minimis overlap is not defined but it would be reasonable to assume that an overlap that was confined to the area of the original window frame would be de minimis. However, de minimis coincidence will not be enough to preserve the right (Ankerson v Connelly (1906) 2 Ch 554).

The general principle has been applied to replacement of a dormer window with a sky light (National Provincial); setting back of the wall with same size windows (Barnes v Loach (1879) 4 QBD 494; setting back of wall with window at an angle (Buller v Dickinson (1885) ChD 155).

In some cases, developers have obtained a pre-demolition survey which allows interested parties to compare size and location of the windows that previously existed with the new openings. It is important to remember that windows exist in 3 dimensions and thus elevation drawings showing overlap may not show that the plane of the windows is significantly different or that windows might exist at an angle to the elevation and this might affect any consideration as to whether there is sufficient coincidence. In addition, where some overlap exists, it is necessary to consider the point at which the overlap is too small to have effect or that it increases the burden on the servient owner. For example, if the window is smaller than previously existed but serves a larger space then this would unfairly increase the burden on the servient owner or if the new opening is positioned at the edge of where the previous opening existed and in such a way that any development by the servient owner would be made more difficult.

Once coincidence is satisfactorily demonstrated then there is the question of how loss is evaluated i.e. would this be on the basis of layout and arrangement of windows that acquired the right to light or upon the basis of the new layout always assuming that the new arrangement has not existed for the 19 years and one day that would constitute uninterrupted use and how to deal with secondary or parasitic losses.

This is a complex situation and it is probable that most cases are resolved based on the current arrangement. In theory however, the assessment could be made based on the original arrangement in the first instance and this can then be compared with the current arrangement. If the current situation is worse then there is an argument that damages/ compensation should be reduced or negated. If actionable loss would occur in either situation then, according to Rights of Light The Modern Law, other losses which are not themselves actionable would be taken into consideration as parasitic losses and whilst this is understandable when related to those windows that overlap those that previously existed, it is problematic that the literal interpretation would include all those windows that occupy space where none previously existed including, for example, new extensions.

It is for this reason that a servient owner might consider applying for a notice of notional obstruction under the Rights of Light Act 1959, to avoid having to pay compensation for at least some secondary losses.

Light Obstruction Notices

The requirements for Light Obstruction Notices are described in my previous article on Light Obstruction Notices and what to do with them and it is worth noting that an application would fail if it would interfere with an existing right and the LON would result in an actionable level of loss of light.

The normal obstruction specified is one of infinite height on the boundary between the properties. This however is most likely to be too large for the requirements and thus the best solution will be to produce a model with cutback solution so that the required notional obstruction is designed to avoid actionable loss to the windows where the right is continued from that which existed previously.

However, before considering how this might be applied it is worth reflecting upon the contents of a paper written by Delwyn Jones in the Journal of Building Survey, Appraisal & Valuation Vol. 3, No. 2, 2014, pp. 124–133 (Henry Stewart Publications):

Parasitic Rights

In his paper entitled Rights of light: ‘Parasitic injury and damages — a review’ Jones compares the concepts of parasitic injury in law and current surveying practice and compares this to parasitic injury in other fields. His suggestions for reform have yet to be considered but may well affect the valuation of such injury in the future.

It is interesting to note, from the paper, the reference to the case of Spartan Steel & Alloys v Martin & Co [Contractors] Ltd [1973] 1 QB 27, where Lord Denning MR stated, “I do not like this doctrine of ‘parasitic damages’. I do not like the very word ‘parasite’. A ‘parasite’ is one who is a useless hanger-on sucking the substance out of others. ‘Parasitic’ is the adjective derived from it. It is a term of abuse. It is an opprobrious epithet. The phrase ‘parasitic damages’ conveys in my mind the idea of damages which ought not in justice to be awarded, but which somehow or other have been allowed to get through by hanging on to others. If such be the concept underlying the doctrine, then the sooner it is got rid of the better. It has never been used in any case up till now. It has only appeared hitherto in text books. I hope it will disappear from them after this case.”

The paper argues that practitioners have adopted the term ‘parasitic’ “without necessarily being pinned firmly to one legal concept or another. It has become shorthand for a range of scenarios.”

An example is provided whereby, in the medical field and injury caused directly by an accident would be considered primary whereas emotional trauma might be parasitic. Both are injuries and each would represent a cause of action independently. In rights of light cases however, it is common for a loss of light that would not of itself be considered actionable becomes included in an action for damages as a result of actionable loss occurring elsewhere.

Another possible example is where one or more rooms in a property is affected to an “actionable” degree and other rooms are not. Any losses to these other rooms may also be referred to as parasitic.

The paper then makes reference to the case of London, Tilbury and Southend Railway Company v The Trustees of the Gower’s Walk Schools [1889] 24 QBD 326 where a building that had the benefit of a right to light was demolished and replaced with a building that contained windows that in part coincided with the location of the original windows and in part that did not. The adjacent development interfered with the light to windows in both categories and the court found that, the right of action was not restricted to the recovery of damages in respect of injury brought about by the obstruction of windows that were coincident with the positions of ancient lights and that the injured party was entitled to compensation in respect of losses through all windows that served spaces rendered dimly lit, that is to say including the windows and parts of windows that did not coincide.

What is not clear from the judgement is whether parasitic losses should be valued in the same way as primary losses.

I have described in previous articles how an agreement was reached in 1971 between various leading practitioners as to how to value loss of light generally, including the use of Equivalent First Zone (EFZ) and a light rental value graph. They also appear to have agreed that, provided a right to light has been established and there is an level of loss somewhere within a property that would amount to a nuisance then all negative shifts in light contours within that property brought about by a development on neighbouring land are factored into a computation of total EFZ losses for that building.

Jones expresses concern that the current practice makes no distinction between those spaces that are or would be rendered inadequately daylit by a development and those where no nuisance would arise post development. Whereas legal precedent in other areas would suggest that the latter be ignored, and he states that “This is clearly inconsistent with the doctrine that a party recovering damages should not be in a position to command compensation for losses that do not arise. In practice (even following the customary weighting applied within EFZ tables) the values attached to this contrived category of ‘parasitic loss’ can be more than incidental.”

Interestingly he asks the question “How many practitioners encounter evidence (whether irregularly or indeed ever) that the impact of light contour shifts in spaces that remain ‘well lit’ post development is a demonstrable loss in the value that space can command?” but of course we have to reference EAGLE v. THE CHARING CROSS RAILWAY COMPANY. (1866-67) L.R. 2 C.P. 638 to understand the rationale behind this. It is quite possible that a new case may be made through the courts that buildings such as offices that are heavily reliant upon artificial light rather than natural daylight and will suffer no loss but, to date, this has not proven a successful argument. (see Midtown Ltd v City Of London Real Property Co Ltd (2005) LTL 31/1/2005; [2005] EWHC 33 (Ch))

Jones argues that there are two further compelling reasons for not including what he refers to as ‘secondary losses’ within EFZ computations. The first being in relation to mitigation measures and the second in relation to what have become known as the ‘Shelfer’ criteria.

As to mitigation measures, he describes situations whereby, in a city centre, a scheme is remodelled to minimise the losses such that the “actionable” losses are confined to limited areas but the secondary losses, referred to as parasitic losses are disproportionately large resulting in an over-exaggerated representation of the true scale of injury.

In fact, practitioners can see this demonstrated if they compare EFZ losses to actual area losses. Where the actual area loss significantly exceeds the EFZ area then most of the losses will be secondary, it also penalises the developer in that the affect of cutting back still results in the developer being penalised for losses that would not, of themselves, be considered “actionable”. Jones then asserts that “It seems incongruous that either should be an outcome. A simple remedy lies in not automatically treating ‘secondary losses’ as ‘parasitic losses’.”

The case of Shelfer v City of London Lighting Co. [1895] 1 Ch287 COA defined the main criteria that should be used in deciding whether the courts should award damages instead of an injunction in the event of infringement of an easement. This has been followed with only minor modification ever since but of course it gives no guidance as to how damages should be assessed.

It appears to be argued by Jones that had the secondary losses been ignored or valued at a lesser rate then cases such as HKRUKII (CHC) v Heaney might have been decided differently. i.e. the value of compensation might have been considered a “small amount of money”.

Taking this approach then it is arguable that ‘new’ windows have even less entitlement to be considered for parasitic loss and there are two scenarios to be considered in this case, the first being where the loss to the room would have been “actionable” had the room space benefitted from a right to light and the second where the loss is purely secondary. In the former, had the space been a separate building, it would not even be considered but because it forms part of the same building it is treated as parasitic. In the latter, taking Jones’ argument, why should there be compensation?

Unfortunately, there is a distinct lack of case law that would guide practitioners and it is possibly, for this reason, that assumptions are based upon ‘worst case’. However, in the latter case it may be possible to obtain a light obstruction notice and thus avoid the risk.

Conclusion

As the law stands at present, surveyors will find difficulty in making an argument that parasitic or secondary losses of daylight to rooms should be either ignored or valued at a lesser rate than those that are affected to the level that would be considered a legal nuisance and thus potentially actionable.

A case may be made to avoid compensating for parasitic or secondary losses to parts of a building that do not yet benefit from a right to light but there is a lack of case law in this regard.

A servient owner may be able to obtain a light obstruction notice for parts of the dominant owners building that have not yet gained a right to light for themselves, but the notional obstruction must be designed such that it would not cause an actionable loss. However, the courts have reserved to themselves the decision as to what may be actionable, and it is unsafe to rely upon established practice in terms of use of the Waldram methodologies i.e. 0.2% over 50% of the room.