POINTS OF LAW
My neighbour obtained planning permission for a fire escape on the first floor of his house after converting his loft and building a flat-roof extension on the ground floor. I had concerns that this fire escape would be used as a sun-bathing area and voiced my concerns to a rather indignant planning officer who assured me it would not and that it was there to be used solely in an emergency.
However, my neighbour uses it as a balcony. This blocks out a large amount of light and not only has a view over my patio but also looks directly into my bathroom.
Can I do anything about it?
David Fleming writes:
There are two separate issues here. If the presence of the fire escape/balcony blocks your light, it is theoretically possible that you would have a claim against your neighbour for breach of a right to light. Usually it is possible to establish such a right from 20 years’ long use by yourself and your predecessors.
However, right-to-light cases are rarely brought for two reasons. First, it is not sufficient to show that you are enjoying less light than you did before. You have to prove that the amount of light remaining is insufficient for normal uses of the rooms affected. Furthermore, it is invariably necessary to instruct an expert to prepare a report on the loss of light, which makes such cases expensive. I do not believe you would have any claim against your neighbour arising from their sunbathing on the fire escape. This would not be considered an actionable “nuisance”.
On the other hand, if it is a condition of the planning permission that the fire escape should be used for that purpose only, the planning authority has powers to serve what is known as an enforcement notice on your neighbours, preventing them from using it for any other purpose. If such a notice were served and they continued to use the fire escape for sunbathing, this would be a criminal offence. Accordingly, I suggest you refer the matter to your local planning department and encourage them to take the necessary action.
David Fleming is head of property litigation at William Heath & Co.