Shining a light on the Sheffield Masonic principle, and other Rights of Light considerations

You know that your building is burdened with the rights of light (ROL) of a neighbouring building, and that their light will be progressively reduced after each development is finalised.

You are in preliminary discussions with ROL surveyors for the neighbour to establish an amicable way forward.

You understand from them that they are considering all the injury the other developments cause to their client's building (rather than each one in isolation) because they say each development will cause their client a loss of light which will cumulatively leave its building with an inadequate amount of light.

However, you are only principally concerned about the potential injury your development is causing, and not looking at the wider picture.  

Is that right?

The Sheffield Masonic principle

The short answer is no.

This is because of the judgment of Justice Maugham in Sheffield Masonic Hall Co Ltd v Sheffield Corporation [1932] 2 Ch 17.  The salient facts concerned a dual aspect room of the Masonic Hall with buildings on either side.  The neighbouring landowner on one side began to build up their building to the extent that the finished building (planned to be an art gallery and library at least 65 feet high) would cause an actionable interference (on general ROL principles) with the Masonic Hall's ROL.

Maugham J considered that, as a general rule, the owner of land on each side can only build up so far that sufficient light would be left if the other owner carried out the same building up (even if there are no plans for them to do so).

So, absent this principle, in the context of a building affected on two or more sides, you or your opposite developer theoretically could build up to a much higher level without causing an interference to the affected building (because there is adequate light being received from its other window). However, the judgment of Justice Maugham means, you and/or your opposite developer might in fact be prevented from doing so regardless of who commences or completes their development first.  

Plainly that is not a satisfactory outcome and puts an unreasonable burden on the "first" developer's right to build, whoever that may be. 

The longer answer comes over seventy years later.

The judgment of Moss J in Tamares (Vincent Square) Limited v Fairpoint Properties (Vincent Square) Limited [2006] EWHC 3589 (Ch) identified that Justice Maugham's principle was premeditated by the other developer having an intention to build "at some not distant date" (page 23 of the judgment). Justice Moss then explains that for the Sheffield Masonic principle to not apply there must be "no reasonable prospect for the foreseeable future" (paragraph 50 of the judgment) of a development being constructed.  On those grounds, he dismissed its applicability in Tamares because there was no prospect of a neighbouring development being constructed.

It remains to be seen at which point a development is considered a "reasonable prospect" and whether "foreseeable future" may mean different timescales depending on the scale of the development.  That said, it is likely to be a question of fact and degree (with important steps such as obtaining planning permission providing key evidential support).

You should also bear in mind (notwithstanding the gloss to the principle applied in Tamares) that a neighbour may take pre-emptive action against you (even if your development does not cause an actionable interference with their rights). This is because if that neighbour does nothing, they may find another developer can still build to a minimum height even if that leaves them with an unsatisfactory amount of light.

So to summarise, if one of your neighbouring developers has a reasonable prospect of building on its land, your scheme may:

1. even if designed to not cause an actionable injury, still in fact be considered to be actionable; or
2. cause greater infringement, because you cannot take advantage of the light being received from the other side of your neighbour's building.

Other ROL considerations - multiple development sites

All parties should be mindful of the way they deal with their ROL issues on any development.

In the above scenario (i.e. with more than one development happening at the same time) you (as developer) should be mindful of the following key issues:

1. Insurance. Developers are also currently facing a hardening insurance market. There are less underwriters now, with premiums and excesses becoming more expensive. So, the more you can do to mitigate the ROL risks associated the more viable insurance becomes.
2. VAT. The rules on rights of light releases and the applicability of VAT are necessarily complicated. You should ensure that professional advice is obtained in this regard and any compensation is appropriately documented.
3. Other landowners. They might obtain ROL over your land by prescription (long-use) and you should consider whether you need to prevent that right from accruing, especially if your development is at its early stages.
4. And if you are an adjoining owner, about to be affected by a development: 
5. Disclosure. Be conscious that any documents created could potentially fall to be disclosable in other proceedings.
6. Confidentiality. Any compensation paid to you should be kept confidential.
7. Timing. Once a ROL release is registered at HM Land Registry, it is a public document and so other developers can see what you have agreed in the past. Delaying in objecting to ROL infringement may also count against you in any court proceedings.
8. Reciprocal releases (i.e. an exchange of ROL releases). You will need to consider whether agreeing a reciprocal release is better for you (because you are looking at redeveloping your land in future) than receiving full compensation.

Conclusion

ROL are necessarily complicated and the judgment of Maugham J in Sheffield Masonic is one example of how the principles can be difficult to follow.

It is always important to consider ROL at an early stage of any development you or your neighbour are carrying out and obtain legal and professional advice.

We have a proven track record in rights of light matters and are able to comprehensively advise you to extract the best commercial results. 

Should you like to find out more about rights of light and how we can advise you, please contact Jamie Mangan or Isaac Daughtrey on their contact details above.