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  1. Wealth
June 2, 2017

Why the law says no to vistas

By Spear's

What should you do when your view of the Somerset countryside is obscured by unsightly constructions? A recent case points out why the court might not actually care for your plight, writes Adam Osieke

You might think that a much-loved vista, particularly one that has been enjoyed for a number of years, is capable of protection at common law. But in Aldred’s Case (a 17th Century decision in which a landowner took exception to his neighbour’s newly constructed pigsty) the court found that ‘the law does not give an action for such things of delight’.

Consider, for example, the recent case of Anthony and Janice Hemms. The couple were involved in a dispute with their neighbour over her installation of a large fence, a matter of inches from the external wall of their cottage, obscuring what had been a pleasant view of the Somerset countryside. The fence was necessary, claimed the neighbour, in order to prevent her cattle from injuring themselves on the glass windows of the cottage as they grazed in the adjoining field. The Hemms appealed the decision of the local planning authority to approve the construction of the fence, but the Planning Inspectorate allowed the fence to remain at a height of two metres, easily enough to block the Hemms’ view from the ground floor of their cottage. So this begs the question, what option do landowners have, if faced with an unwelcome construction on neighbouring property?

As mentioned above, there is no common law right to a view. But it is possible to establish a right to light. If a room has enjoyed a particular source of light for a period of 20 years or more, and the light flow depends on an uninterrupted view of the sky across land owned by a third party, it may be the case that a prescriptive right has been created over that neighbouring land.

However, although a view across adjoining land may be incidental to the flow of light, the creation of any legal rights will depend on the degree to which the room in question is illuminated as a result. Therefore, if the room remains adequately lit despite the interruption to the flow of light into it (and this will be a matter for an expert surveyor to assess) then the interference with the right to light may not be enough to support a claim to have the offending obstacle removed. In addition, the right, once established, will be to a specific light source through a specific aperture. So if the source of light is inadvertently extinguished (eg by blocking up a window as part of an extension) then the right will be extinguished, too.

But if there has been an actionable interference with an existing right to light, the court may be willing to grant an injunction order to restrain it. It is important to act quickly though. Any delay could lead to a claim that the right has been abandoned (as well as making it harder to obtain an injunction).

There are other legal rights which might assist landowners in this scenario, too. Their property may have the benefit of restrictive covenants, recorded on the title of the neighbouring property, which prevent that land from being built on or developed in a particular way. If the Court is satisfied that a restrictive covenant has been breached (and that the breach is sufficiently serious) it may be willing to grant injunctive relief.

There may also be grounds for a claim of trespass. Unless a land boundary has been formerly determined, the Land Registry title plan is only ever indicative of its general position. Say, for example, the plan is drawn at a scale of 1:25,000 and the red edging of the boundary line is 1mm thick. That would equate to a margin of error of some 25m on the ground. So it is quite possible that a landowner who builds to within a few inches of a title boundary may actually be trespassing on his neighbour’s land. That could lead to a claim for damages and/or an injunction order.

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Taking legal action is always an expensive option though. There are alternative methods of dispute resolution, such as expert determination and arbitration, which are well suited to neighbour disputes and can save time, money and anxiety for all concerned!

Adam Osieke is a lawyer at Pemberton Greenish

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