Raymond Cooper is a Consultant Property Lawyer
Proposition: An owner of a building with roof top solar panels cannot acquire a prescriptive right to the access of the sun’s rays.
The question has been canvassed (online and in the property press) whether the owner of a building with solar panels on the roof could have a remedy against a neighbouring owner who built on his land in such a way as to block the access of sunlight to the panels (similar considerations would no doubt apply if the adjoining owner allowed trees to grow to the extent where they blocked the sun’s rays).
The question is problematic. A few notes on the right of light itself by way of introduction might be helpful – lawyer readers are welcome to skip the next four paragraphs!
There is no right to light at common law. The owner of the building (the “dominant tenement”) receiving the light can acquire a right to light either by express grant (in which case the answer to the question posed above will depend on the terms of the grant) or by prescription under the Prescription Act 1832 s3 (as amended) (the situation with which this post is principally concerned). The period for the acquisition of a right of light by prescription is 20 years. The use or enjoyment of the alleged right during this period must be shown to have been “as of right, i.e. enjoyed neither as the result of force, secrecy, or permission”.
Once an easement of light is established, it does not amount to a right to the continuance of all the light which has previously come to the windows of the dominant tenement; the interference must amount to a nuisance, and the test is not whether the diminution is enough materially to lessen the amount of light previously enjoyed, or indeed a question of how much light is left, but whether the diminution, that is to say the difference between the light before and the light after the obstruction, is such as makes the building to a sensible degree less fit than it was before for the purposes of the business of occupation according to the ordinary requirements of mankind; this was established in the important case of Colls v Home and Colonial Stores Limited [1904] AC179.
There is no precise test of the amount of light to which a dominant owner is entitled; in Colls mention was made of the test’s “elasticity”. Case law has made it clear that the amount of light sufficient according to ordinary notions of mankind increases as standards increase; Ough v King [1967]3 All ER 859, where the court held that in determining whether there was an infringement of the plaintiff’s right to light the court was entitled to have regard to the locality and to the higher standard of lighting at the present day, and was not confined to the (previously understood) rule that so long as half a room was adequately lit there was no infringement.
That is a very simplified background – there is a great deal of case law on the subject, but I have tried to mention the considerations which need to be applied in answering the question posed at the beginning of this post.
The only reported case I can find in which the question has been referred to is the case of Allen and Another v Greenwood and Another [1980] Ch.119. The case concerned the plaintiff’s claim to have acquired by prescription a right of light through the windows of a domestic greenhouse. The court held that the measure of light to which a right was acquired under the Prescription Act 1832 was the light required for the beneficial use of the building for any ordinary purpose for which it was adapted; and that in the case of a greenhouse that was the high degree of light required for its normal use.
In the Allen case, the argument was put forward that the right to light was restricted purely to light and not to any other quality of the sun’s rays e.g. warmth; the court rejected this argument, saying that as plants need light as well as heat that proposition would lead to an absurd conclusion i.e. that there would be no nuisance because one could see to go in and out of the greenhouse and to pot plants which would then not grow. Lord Justice Goff added:-
“I desire, however, to add one important safeguarding proviso to the judgement. On other facts, particularly where one has solar heating (although that may not arise for some years) it may be possible and right to separate the heat, or some other property of the sun, from its light, and in such a case a different result might be reached. I leave that entirely open for decision when it arises. My judgement in this case is based upon the fact that this was a perfectly ordinary greenhouse, being used in a perfectly normal and ordinary manner, which user has, by the defendant’s acts, been rendered substantially less beneficial than it was throughout the period of upwards of 20 years before action brought, and if necessary upon the fact that all this was known to the defendants and their predecessors for the whole of the relevant time”.
Thus, the Court of Appeal anticipated the question with which this post is concerned but did not answer it.
My own view (and I would be very happy to hear from dissenters) is that it would not be possible to acquire by prescription a sufficient amount of the sun’s rays to operate solar panels. There are two reasons for that conclusion. The first was anticipated by the argument in the Allen case; that historically the right to light has been precisely that and to extend the ambit of the Prescription Act to include the supply of heat or any other property of the sun’s rays is necessarily problematic.
However, there is another point which did not require decision in Allen. All cases I can see (including Allen itself) were concerned with the supply of light through a window or other aperture in a building. Solar panels will usually sit on the roof of a building and have nothing to do with the quantity or quality of light reaching the interior of the building through its windows. In Allen, the building was a greenhouse, but the extent of the effect of the sun’s rays acquired related to the situation inside the greenhouse.
This could turn out to be an issue of some importance, and eventually no doubt will be tested in the courts, but I cannot see a claim being upheld under the law as it now stands; no doubt public policy would favour the dominant owner but it might be that legislation would be required to found a claim.
This post is intended to cover matters of interest in connection with property law in England and Wales. I hope it will be of interest to all concerned in the property industry; it is not intended solely for lawyers, and I will try and strike a balance in posts in order to achieve both readability and accuracy. This may lead to what a lawyer might see as a degree of over simplification; lawyer (and indeed non-lawyer) subscribers are very welcome to tell me what I have got wrong or to express contrary views or ask for authority for any propositions I put forward – all comments will be welcome.
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