In advising Mary, it must be noted what rights she has over the adjacent land brought by George. George’s stance that he will do anything with his land will be looked into and whether Mary can do anything about the proposed development. The problem, Is the land capable of being used in this way and how it can be created. An easement is effectively a right which is enjoyed in one's land by another. "The common law recognised a limited number of rights which one landowner could acquire over the land of another; and these rights were called easements and profits. "
Mary will have an interest in the easement ‘right of light’. This easement however is well-defined and in order for a claim to be proficient of becoming an easement, it has characteristics to satisfy that are listed in the case of ‘Re Ellenborough Park’ (1956). These characteristics are in this manner; there have to firstly be a servient and dominant tenement, secondly that right has to accommodate a dominant tenement, this means that it is essential that it is associated with its enjoyment as well as for its benefit, as shown in the case of ‘Hill v Tupper’ (1863).
This rule along with the case of ‘Ackroyd v Smith’ (1850) has triggered debate as this showed that the grouping of easements is limited to only renowned types, thirdly the servient and dominant tenements have to be owned by different parties, in this situation George's land is the servient tenement, whilst Marys building and land are the dominant tenement since it has enjoyment of the benefit and that the two owners gratify the condition that the tenements are owned by different parties and finally the right has to be capable of forming of a grant.
This will include numerous ideas which aimto control the range of possible easements. For example, in order for an easement to exist, the right has to be of clear description as well as having a specific definition in the meaning and does not need to be used for purposes of enjoyment only. In the case of ‘Re Aldred’ (1610) it said that the right to having a good view did not represent an easement. This suggests that the acquirement of easements would not be found to be unclear as this would warrant against the creation of miscellaneous definitions.
It can however be argued that the final condition in the ‘Re Ellenborough Park’ case will allow for some judicial discretion as well as flexibility within the system. In the case of ‘Re Ellenborough Park’ the rules merely acted as a guide, however a judge may frequently decide to recognise the easement that is centred onto the property and its needs, its circumstances regarding the case and the behaviour of the parties. Therefore the law is unclear as it will become to some extent complex to emphasise when a new right will apply in becoming an easement.
An easement could be recognised in three ways which could be created; either by way of an implied or reserved grant by operation of statute, express or reserved grant or by the operation of prescription. An easement becomes considered to become legal once it is expressed or implied within a deed and statute. It can be argued that Mary has had the right of light for many years, this is implied. An easement can also come by an implied grant through a reason of necessity by a common intention of the parties, under the rule in ‘Wheeldon v Burrows’ (1897) and Under Section 62 of the LPA 1925.
These methods of obtaining easements with an implied grant can often overlap, because as easements are created by implication they are then more complicated to define, because this will depend wholly upon the circumstances and facts of each exclusive case as to whether or not that an easement by implication can be present. With terms of by way of necessity then properties can convey to contain an implied easement linked on top of it. Easements by implication are more difficult to define. It will depend on the facts and circumstances to each exclusive case whether or not an easement by implication will exist..
The recognised rule that is found in the case of ‘Wheeldon v Burrows’ (1897) was that upon the grant of the land that all easements will be attained by the grantee and are apparent and continuous and at the time of the grant they have been used for the benefit of the land itself by the grantor. If the rule in the case of ‘Wheeldon v Burrows’ (1897)is followed then easements work against the grantor and in favour of the grantee because the grantee is capable to claim the an implied easement as a right over the land is retained by the grantor.
This rule however must be that the right is essential for the reasonable enjoyment of the land can pose problems. This right is not essential in question of the enjoyment of the land but it is rather that the right ought to accommodate the dominant tenement. The rules regarding Wheeldon v Burrow (1897) how imprecise in certain cases they can be, particularly in the case of ‘Wheeler v J. J. Saunders Ltd’ (1996). In Land Property Act 1925 section 62, there are definite requirements that are laid down.
The easements in this statute denote that where they have had ’some diversity of ownership or occupation of the quasi-dominant and servient tenements prior to the conveyance‘. If a purchase by the way of a deed, then the rights will transfer automatically unless the conveyance is expressly excluded as the case of ‘Wright v Macadam’ (1949. Furthermore this right has to be enjoyed at the precise time as the conveyance occurs and that the right is capable of becoming an easement, not purely just having permission granted as was held in the case of ‘Green v Ascho Horticulturalist Ltd’
When there is uninterrupted use of land easements can be obtained by prescription, this is where a non landowner is able to gain a prescriptive easement in a property which is not owned as long as every requirement that are stated are met. The requirement typically includes the use of the easement for a period of twenty years as is ruled in Prescriptions Act 1832 S. 2 and this can be seen in the case of ‘Reilly v Orange’ (1955), by maintaining exclusive use is ensured, using it continuously during this period and doing this in a manner which makes it clear to the current owner.
A Right of Light needs to be acquired prior to it being enforced, for Mary to be successful in any action with regards to the interference to a right to light that it is merely not enough that the light is now enjoyed less than before. However although there is not an absolute right to light from a neighbour’s land in the ‘Prescription Act 1832’, a right to light can be attained provided the light has been uninterrupted for at least 20 years.
This applies commonly to the building and particularly to the window(s) where the light enters. If this right is infringed then the loss must be significant and hinder the enjoyment and reasonable use of the property. If by needing artificial light through the daytime to be able use Mary’s workshop are then this might fall into this definition because of the potential development. Shading of the yard and delivery area is not likely to establish a breach of a right to light.
If Mary can be prove that she cannot use the yard to make a living (as part of her business) because of the shading, it maybe however possible to persuade the court to provide an injunction. If the amount of light is limited coming through a window by the new development and inside the level of light falls below an accepted level, this will then constitute an obstruction. This is nless Mary waives her rights to the affected window then she would be free to take legal action if she considered that her light is being blocked against the landowner.
It has to be seen that the reduction in light makes Marys property is less fit for its purpose than it was and that the quantity of ’appropriate‘light can depend on the building, its use and its locality, it also has to be considered if the amount of light will be inclined to increase standards and expectations of living. The prescriptive right may be lost if the development is built and it blocks the light for a period of more than 12 months without an objection being raised by Mary.
The development can be however prevented because of the Right of Light, even when Planning Permission is granted by the Local Authority. Mary has to show the decline in light she enjoyed extents to a nuisance. A nuisance can arise if: "as a matter of common sense, such a deprivation of light as to render the occupation of the (dominant land) uncomfortable in accordance with the ordinary ideas of mankind" As shown in the case of ‘Colls v Home and Colonial Stores’ (1904)
In ‘Carr-Saunders v Dick McNeil Associates Ltd’ (1986)this strengthened the view by deciding a dominant owner is allowed enough light so that the property is adequately lit for ’all ordinary purposes for which the property may reasonably be expected to be used’. Although to complicate the possibilities further, the law will recognise that loss of light will sometimes be acceptable with the fact that just because less light is available that this does not automatically allow Mary a right to complain.
Therefore given that Mary has occupied the building and land for the duration of 23 years then she can look to obtain a right of light for the workshop areas which she uses natural light for and the residential flat above. It could be argued that the areas that have shutters on have not had 20 years of uninterrupted light and therefore would not be included in the ‘right of light’, however I would argue that this is merely superficial and that they can be included.
It would be possible for George to prevent Mary obtaining a right to light by initiating processes under the Rights of Light Act 1959. This act allows the construction of a theoretical obstruction to the light that is received by Marys building over that which could be possibly built. George would then notify Mary that he has created a 'screen', in front of her windows. Mary, would then be served with a notice, would have 12 months if she wanted to object to respond.