Easements: The Right to Light and Trees 5 Comments

Easements: The Right to Light and Trees

Proposition: Although there is no reported case on the subject, there is no reason in principle why trees which interfere with an established right to light of a building to a sufficient extent should not give rise to a right of action by the person entitled to the right, whether the trees in question are evergreen or (less certainly and depending on the specific circumstances) deciduous.

Pic 1The Right To Light – Interference:
I am not proposing in this post to describe in detail the different ways in which a right to light may come to exist, or the degree of interference required for it to be actionable by the person entitled. I will, however, make some general comments by way of introduction and background to the specific issue canvassed in the proposition above and in the remainder of this post. In doing so I will use the normal language of easements and refer to the person entitled to a right to light as the “dominant owner” and the person over whose land the right is claimed as the “servient owner”

Not every window or other opening in a building has a right to light over adjoining property.   A right to light can be created in a number of ways, the commonest of which are express or implied grant and common law or statutory prescription. The method most likely to apply in the case of the issues canvassed below is statutory prescription under s.3 of the Prescription Act 1832. This involves the dominant owner proving at least 20 years continuous enjoyment of the light to his building without interruption. In the case of express or implied grant the issue of whether there is an actionable interference may depend on the terms of the grant: in the case of rights acquired by prescription the general rules outlined below will apply.

Pic 2In order to be actionable, an interference with a right to light requires a reduction that leaves insufficient light for normal purposes according to the ordinary notions of mankind having regard to the purposes for which the building was designed and the nature of that design: Midtown Ltd v City of London Real Property Co Ltd [2005] 1EGLR 65 following Colls v Home and Colonial Store Ltd [1904] AC 179, and followed in Regan v Paul Properties Ltd [2006] EWCA Civ 1319.   I do not think it necessary for me to set out in full the methodology by which the courts generally assess whether or not this test is met. One test commonly applied involves ascertaining whether at least half of the affected room continues to receive an adequate quantity of light after the obstruction is in place: the “50/50 rule”.

Pic 3However, this is not a rule of law. It is generally accepted among specialist surveyors that an adequate amount of daylight is available where 0.2% of the whole dome of the sky is visible at table-top height (a working plane of approximately 850mm above floor level). Surveyors have evolved the “Waldram” method of calculation: for a detailed exposition readers are referred to Chapter 12 of “Rights of Light – The Modern Law” by Stephen Bickford-Smith and Andrew Francis, Second Edition, Jordans, June 2007.


Pic 1 (2)The High Hedges Legislation:

I am referring here to Part 8 of the Anti-Social Behaviour Act of 2003, which was brought in to give a dominant owner rights in the event of any adverse effect caused by the height of a high hedge situated on land owned or occupied by another person. This post is not primarily concerned with this legislation, which was introduced to meet concerns over rapidly growing evergreen hedges, primarily the Lawson’s or Leyland Cypress (Leylandii). The only reason for dealing with the legislation at all is that it raises a question: did the perceived need for legislation suggest that Parliament was of the view that the ordinary law of nuisance (including the law in relation to the right to light, which is a form of nuisance) would not otherwise apply?

I have looked briefly at the debates in Hansard, and there appears to be no mention by any MP of an alternative remedy in nuisance. The Law Commission Consultation Paper Number 210 on Rights to Light is silent on the subject of trees. Nor does the point seem to be covered in the Commission’s consultation paper (2008) on Easements, Covenants and Profits a prendre. On balance, my conclusion is that there is nothing in the “High Hedges Legislation” which would deny a dominant owner suffering from an actionable interference with a right to light from taking action in nuisance. Some relevant points are:

  1. It is established authority that what Parliament may in any instance wrongfully have thought to be the law does not affect what the law actually is;
  2. The “High Hedges Legislation” covers a hugely wider area, as it applies to any adverse effect and covers, for example, rights of light to garden areas which would not be capable of acquiring a right to light by prescription (indeed, that was one of the principal objects of the legislation);
  3. There is nothing particularly unusual about common law and statutory rights co-existing or indeed overlapping in specific areas; and
  4. In Rights of Light, The Modern Law (see above), the authors say (at paragraph 16.3 under the heading “Background to the [High Trees] Legislation”:

“It is important to understand that this legislation imposes different standards from the common law relating to rights of light and the remedies for infringement of this legislation are also different. This is because the legislation fills a gap in the common law, which has been seen in the earlier chapters of this book, does not protect light to gardens, etc., nor does it protect the benefit of amenity conferred by daylight, or sunlight, except in extreme cases of deprivation which amount to a private nuisance.”

To me, this implies that the authors were not rejecting the possibility of the common law remedy of nuisance applying in the usual circumstances of actionable interference with an established right to light to a window or other opening in a building.

The Position At Common Law:
So, assuming that a right of light is established and that trees are interfering with it to an actionable extent, is there anything to deny the dominant owner a remedy in nuisance? As noted at the beginning of this post, there appears to be no reported case in which trees have been held to be an actionable interference, but I do not see that as particularly relevant; it simply means that no one has yet taken a claim to court (and conversely, it could be said that there is no reported case in which trees have been held not to cause an actionable interference).

The act of interfering with someone’s right requires no (to borrow an expression from criminal law) mens rea; it does not matter whether the servient owner intends to cause the interference with the dominant owner’s light. The only thing that matters is that the interference is real. Why should the nature of the material causing the obstruction be relevant? A tree is made of wood, but so is a wooden fence, and there is no doubt that a wooden fence is capable of causing an actionable interference with the right to light. The only difference is that a tree is living and a fence is not, but see above – why should that make any difference? The interference with light is no less real.

Pic5Another way of saying the same thing is to stress that the focus of attention in the judgment of actions for interference with the right to light has always been and still is:

(a)  whether the right exists; and

(b)  whether it has been interfered with to an extent which is actionable.

The conclusion I draw from the above thoughts is that if an action were to be brought, it would be for the servient owner to persuade a court that there are reasonable grounds for the argument that an interference caused by a living object is different from an interference caused by a manufactured object, e.g., a brick wall or a fence.

On what grounds could such a case be made?

Pic 9The first distinction may be precisely that a tree is a living object, whereas a wall or fence is manufactured. As already indicated, I can see no reason why that in itself should be a bar to a claim. The distinction appears even less real when a fence is not factory made but comprises bound natural bamboo or willow sticks.

The servient owner could argue that a growing object like a tree is of a temporary nature, but so is a building. The oldest tree in the UK is believed to be a Yew tree in St Cynog’s churchyard at Defynnog near Sennybridge, Powys, which is reckoned to be more than 5,000 years old. How many buildings are likely to last that long?

Of course, during its lifetime a tree can be blown down in a storm, deliberately felled or lopped or suffer damage in many other ways. So, however, can a fence or a brick wall (indeed any building can be demolished).

Pic 6The only other argument is a twist on what I have said above about mens rea. Is the mere fact that the obstruction is located on the land of the servient owner sufficient, or must a servient owner have put it there? To treat naturally seeded (self-seeded or growing from seeds carried by birds or insects) trees as giving rise to a claim implies a duty on the part of the servient owner to take positive action and spend money on lopping or removing the trees (there is an analogy here to the well-known difference between positive and negative covenants affecting land). That may perhaps cause difficulties for the dominant owner, and it may be necessary to distinguish between naturally seeded trees and those deliberately planted by the by the servient owner along, say, a boundary line with the intention, not necessarily of blocking the dominant owner’s light, but of screening the servient owner’s property from the dominant owner’s (or vice versa).

I do not, however, think that the distinction made in the last paragraph is a real one, because it is undoubtedly the case that hedges (and therefore trees) can give rise to a common law or statutory nuisance or a duty of care: see Charles Mynors, The Law of Trees, Forests and Hedges, Second Edition (Sweet & Maxwell), paragraph 6.7. It is clear that encroachment across the boundary amounts to a nuisance in law (Mynors, paragraph 4.2.4) and so does interference by roots or branches causing actual harm to foundations or drains. In fact, at paragraph 6.7.4, Mynors refers to a case which identified three categories of nuisance, the third of which was “nuisance by interference with a neighbour’s quiet enjoyment of his land”. Dr Mynors deals in chapter 7 (paragraph 7.2.1) with the nature of the duty of care in negligence; the principal point here is that in relation to both nuisance and negligence Dr Mynors (and the law) appear to make no distinction according to whether the trees are deliberately planted or naturally seeded.

I gain further support from some other comments by the learned author of The Law of Trees, Forests and Hedges. Dr Mynors says, chapter 4, paragraph 4.2.5:

“Where something on A’s land prevents light reaching B’s land that may constitute a nuisance at law, which may enable B to seek redress in the courts. However, there appears to be no reported case of such an action being brought, let alone succeeding, in the context of trees. This is because the remedy is available only in very limited circumstances.”

This is considered further by Dr Mynors inChapter 6, titled “Boundary Hedges” and dealing mainly with the High Trees legislation. But in section 6.7, Dr Mynors considers “Boundary hedges as a common law or statutory nuisance”, and in paragraph 6.7.3 headed “Interference with right to light” says:

“In addition to a hedge itself constituting a nuisance by virtue of encroaching into or over neighbouring land, there is—theoretically at least—the possibility that it might amount to a nuisance by impeding a right to light reaching a building on that land.”

And:

“There does not seem to have been any reported decision of an action brought to seek the removal of either a tree or hedge unreasonably obstructing a right of light. In principle, however, there would seem to be no reason why such an action should not be brought, provided it can be shown that the window in question did indeed receive light for at least 20 years prior to the obstruction. That will inevitably not be particularly straightforward since, particularly in the case of a tree, the obstruction will only have come into existence gradually. But it might be feasible in the case of a rapidly growing high hedge where the situation at different dates is likely to have been more clear cut, and where there may be sufficient evidence on which to base a claim.”

The fact that the principal textbooks dealing with the right to light, apart from Mynors, whose comments I find supportive of my proposition, do not deal with this issue at all may be regarded as, if anything, also supportive of the argument that trees can cause an actionable interference with light. The books and the authorities focus on the creation of the right, the extent of the interference and the remedies available; not at all on the material substance causing the obstruction. One would have thought that if the various learned authors thought that trees could not cause an obstruction, then they would have said so.

Pic 7I thought about whether for all of the purposes described above, there is a significant difference between evergreen and deciduous trees. The fact that trees are deciduous may (depending on the extent of the leaf fall during the winter) mean that during certain periods they will not continue to obstruct the dominant owner’s light (at any rate to the same extent). This is surely relevant, however, only during the 20-year period on which the dominant owner relies to establish a right by prescription (when the servient owner may argue that the prescription period has been interrupted). Once the right of light is established (whether by prescription or by express grant, the situation seems to me to be no different; I am not aware of any rule in the law of the right to light which says that interference must continue for 365 days a year indefinitely.

Pic 8In other words, this potential argument is only available during the prescription period. It is also complicated by the fact that not all deciduous trees lose all of their leaves, and the possibility that deciduous trees of fastigiate habit (e.g. betula pendula fastigiata or “upright silver birch”)  are often closely planted precisely for screening purposes. Some species of poplar may be other examples and of course deciduous trees vary enormously in the closeness of their branches. It is not difficult to envisage an arrangement of deciduous trees which would continue to have a significantly adverse effect on light during the winter months, even when not in leaf; and an additional point is that the tree may be rendered less penetrable by naturally growing ivy or mistletoe.

Conclusion:
The thoughts set out above lead me to the preliminary conclusion that interference with light by trees is no different from any other form of interference (save perhaps for minor question marks in relation to deciduous and/or naturally seeded trees). I very much hope that the authors of the works to which I have referred and any lawyers or surveyors operating in the field of right to light may see fit to add comments to this post.

Acknowledgment:
I have had much support, encouragement, and assistance in preparing this post from Mr Michael Ney, BSC (Hons) Estate Management, Building Surveying, FRICS. Michael is a director of Building Surveyors Schroders Begg, and a noted expert in the fields of the right to light and party structures. He has acted as an expert witness in a number of cases concerning the right to light including the recent and notable case of Regan v Paul, Properties DPF, No. 1 Limited [2006] EWHC 2052 (Ch); [2006] All ER (D) 327 24 (August). In the end, I decided to write this post in the first person only as the views and conclusions expressed are mine alone and despite Mr Ney’s support, he may not entirely agree with all of my conclusions. Michael’s contact details are Schroeders Begg Limited, 10 Rudolf Place, Miles Street, London, SW8 1RP, telephone: 020 7582 8800.

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This Post Has 5 Comments

  1. Interesting in as much as I find myself in the situation of having a spite hedge/tree line to the south side of my property which has left my garden completely in shade.
    This started after I took my neighbours to court for breaking a party wall agreement and won the case.
    What followed included complaints to the local authorities about me[Always found in my favour] accusations of benefit fraud to the pension service[Also proven to be malicious]
    I had previously installed my own fence within the boundary and alongside their boundary fence. They chose to remove their boundary fence which according to their deeds they should maintain and plant a row of shrubs and a tree. The tree is now 30ft tall and growing and the shrubs around 15ft tall. Being on the south side of me the result is considerable loss of light which I had previously enjoyed for over twenty years. The shrubs and tree are all deciduous and lose most of their leaves, although the dead ones seem hang on for ever.
    I’ve been in touch with the local council who wont help because the offending plants aren’t evergreen so I’m now looking to taking the neighbour to civil court.
    I can cut back my side to the boundary but that does nothing to the height or light obstruction.
    I’ve recently renewed my fence panels due to damage from the shrubs pushing against them, especially when windy.
    I considered removing my fence entirely in the hope they would reinstate their boundary fence? But I think that’s a little much to hope for and they could do that while mines still in place.
    I may have earned the right to light under prescription but have their shrubs removed that now? Losing their leaves yearly hopefully means, not? Owing to never completing a full 12 months of obstruction.
    I’m now a pensioner and disabled meaning I now have to pay others to do my gardening choirs. Wish I could predict the outcome of a civil court case.

  2. Peter Defoe says:

    Interesting article that has only just come to my attention after meeting up with both Michael and Alistair. My paper, published by Emerald in Structural Survey last year, deals essentially with the principles of obstruction and potential ways in which the obstruction can be measured. It is only part one and I am doing more detailed research to underpin the measurement process.

    My specific approach is to be able to determine the amount of light obstructed at the marginal points where the 0.2% (or other contour) would be moved by a relatively small amount of loss. This would be of specific value to developers wishing to demonstrate that the loss caused by a proposed development would not be as great because trees already block the light to some degree.

  3. Peter Defoe says:

    Interesting article that has only just come to my attention after meeting up with both Michael and Alistair. My paper, published by Emerald in Structural Survey last year, deals essentially with the principles of obstruction and potential ways in which the obstruction can be measured. It is only part one and I am doing more detailed research to udnerpin the measuremnt process.

    My specific approach is to be able to determine the amount of light obstructed at the marginal points where the 0.2% (or other contour) would be moved by a relatively small amount of loss. This would be of specific value to developers wishing to demonstrate that the loss casued by a proposed development wuld not be as great because trees alreayd block the light to some degree

  4. I think there is no question that trees can cause interference with light and that a dominant owner can claim a right to light injury from trees being planted. The problem, however, comes in making an actual claim for a number of reasons specific to the nature of trees or hedges as living and growing features.

    The key issue is that to make a claim under The Prescription Act 1832 the sky visibility must have been enjoyed for 20 years without interruption and one year’s interference with the light is enough to effectively make the 20 year period start again. Therefore, if an owner of the land were to plant a line of dense mature poplars, then the dominant owner would have a claim against that obstruction if it causes injury to the easement. However, where the hedge has been growing for many years, it continually and increasingly obstructs the sky visibility. That hedge mass that existed one year ago from today will have been obstructing the light for one year and no claim could be made against that. Therefore, the only claim that can be made is to have the hedge cut back to the height it was one year ago. Hardly worth pursuing litigation over.

    It would be interesting to explore whether the rights available to a dominant owner will be different if they can prove an easement under the doctrine of lost modern grant. In that case, they would need to prove that they have enjoyed the easement for a 20 years period at some point in the past, not necessarily the last 20 years. Would they be able to then claim a right to a minimum adequate level of direct sky visibility even if that would mean cutting the hedge back considerably from the height that it may have been for many of the recent years.

    The second issue is whether a tree or hedge does constitute an obstruction to sky visibility such that the room will be left with inadequate 0.2% of the sky. Percy Waldram calculated that 0.2% of the sky would give one lumen of light on a dull day in winter and I believe the appropriate assessment is the sky visibility available through a tree in the winter months, when the leaves have fallen, as a balance between the sky at the dullest part of year and the tree when it is allowing light through. The summer sky is considerably brighter and therefore an assessment of the sky visibility, as a measure of the illuminance available with the tree in full leaf in summer, would be an inappropriate one.

  5. raymond cooper says:

    Email message received from Michael Ney, Schroeders Begg Limited – 9, June 2015 :-

    “Actually, I am not sure that I do disagree with you. The High Hedges legislation was introduced to address a number of specific problems; the effect of these rapidly growing evergreen hedges that were becoming causes celebres in the red-top newspapers and the Daily Wail and with neighbourhood disputes that arose out of them. As you say, it also addressed the situation of light to unenclosed land. It had the advantage of being simple to administer so that even local authority personnel could do it and was predictable in that there is a mathematical basis for judging it that pretty much anyone can do.

    There is much to commend the view that if the erection of a “spite fence” as our transatlantic friends call them, is capable of forming a cause of action then why shouldn’t the intentional planting of a line of fast-growing evergreens? The intent – if one needs a mens rea – is the same and the outcome is the same. I suspect the situation might be more difficult with self-seeded trees though even there, if you are liable for the damage your tree roots do to next door’s building and you are liable if branches which grow over the boundary drop off and cause damage, then why should you be exempt from the damage to your neighbour’s light caused by your trees? I suspect, however, that that might be a step too far for the Bench. But where a hedge has been intentionally planted and cultivated, even if it was never intended or foreseen that it would grow so high, I would see that as being no different to erecting a wall or a fence or a light obstruction notice.

    I suspect the problem has been in the past that there are plenty of people prepared to engage in fisticuffs over injuries to light caused by trees etc, or to blether to the press and TV – who are always happy to make a fuss but do nothing cogent to help – but no-one has been prepared to take on the litigation risk in actually running a case. I think that is why the late John Anstey said he’d take on a trees case for half-fee, just to get one on the stocks. Litigation means that the parties will never speak to one another again and one or other party, or both, will end up having to move away but where relations are already at rock-bottom and the High Hedges regs can’t help, if someone were prepared to put their money where their mouth is, perhaps a case could be brought to clarify the situation. It needs someone with the nerve to do it and deep enough pockets. Even if their surveyors and lawyers acted pro bono, if they lost they’d run the risk of being crucified and no household legal expenses insurers would touch so uncertain a case. Perhaps some of the owners of these hedges deliberately take the stance of “sue me if you dare” and so far, no-one has dared. Were someone to dare, perhaps we might see the Courts say that of course such a planting causes an actionable injury and of course an injunction would not be oppressive on the defendant and why on earth did no one ever make such a complaint before.

    Michael Ney”

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