3) Ancient Lights and loss of daylight

The law stipulates that a building with openings is entitled to ‘adequate light for the ordinary notions of mankind’.

Part A) Ancient Lights

• Ancient Lights are an ‘established right’ where a window has received natural daylight for an uninterrupted period of more than 20 years. So named because the Prescription Act of 1832 formalised assumed common-law rights called ‘Ancient Lights’ (referring to a window) that go back to the year 1189.
• Ancient lights is a reference to ‘daylight’ and this can also be expressed as ‘a view of the sky’. This is important as this is distinct from matters that refer to ‘sun light’.
• On an overcast day there is daylight, and the orientation of the window has a limited effect on the level of natural light received into a given room.
• From a planning application perspective, it is necessary to separate considerations regarding ‘established rights under ancient lights’ from those that ‘protect daylight as an amenity’.
• Ancient lights are not typically taken into consideration when deciding a planning application. In cases where there is a right to ancient lights the developer will need to negotiate with neighbours so that compensation is agreed. The developer may choose to modify the design to reduce or negate the need to pay compensation.
• There are sophisticated computer models and guidelines on how to calculate compensation payments under ancient lights. There is also English case law from 1986 that establishes the level of compensation under Ancient Lights at 50% of the profit that the owner/developer gains from the development of the extension/building.  So compensation can, in some circumstances, be very substantial.
• If an agreement can’t be reached, it will come down to a judge to decide what is required. This can also result in an injunction preventing the building from taking place, or if the building/extension has already been erected then it could result in a court order to remove all, or part, of the building.
• The key points under Ancient Lights are:
• This refers to daylight and it not related to a window orientation with respect to the sun’s path across the sky
• The light level can be assessed for any room that has ‘established rights’
• A planning application may be decided and granted without any reference to ancient lights
• Ancient Lights are negotiated between the developer and the impacted neighbour.  Hopefully the negotiation occurs before the planning permission is granted, but it could be after
• The holder of the Ancient Lights could refuse to agree terms and potentially prevent the construction of a building that has already been granted planning permission

Planning applications - Ancient lights, protecting daylight and overlooking/privacy     Cont..

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