The Law Commission has today published its final 229-page report on rights to light, following an extensive consultation on the area, which was launched in February 2013.
It contains draft legislation – the Rights to Light (Injunctions) Bill – and makes a number of key recommendations:
- a statutory notice procedure that would allow landowners to require their neighbours to tell them, within a specified time, if they intend to seek an injunction to protect their right to light, or lose the right to do so;
- a statutory test to clarify when courts may order damages to be paid rather than halting development or ordering demolition;
- an updated version of the procedure that allows landowners to prevent their neighbours from acquiring rights to light by prescription;
- clarification of the law governing where an unused right to light is treated as abandoned; and
- a power for the Lands Chamber of the Upper Tribunal to discharge or modify obsolete or unused rights to light.
The key change from the consultation is in relation to prescription, where it is no longer proposed that prescriptive rights to light for the future should be abolished. Instead, the Law Commission recommends two changes that would make prescription operate more straightforwardly in the future: i) replacement of the three existing methods of prescribing with a single statutory rule applicable to all easements (including rights to light); and ii) repeal of the Rights of Light Act 1959 and the light obstruction notice as a method of blocking a prescriptive right from arising.
Professor Elizabeth Cooke, Law Commissioner leading the project, said: “Rights to light are important, particularly for homeowners. The law must continue to protect them. But it is essential that the law provides an appropriate balance between the protection of light and the development of the modern, high-quality residential, office and commercial premises we need in our town and city centres.
“Our reforms will clarify the legal relationships between the parties, bring transparency and certainty, and reduce the scope for disputes. Where disputes do happen, it will be easier and quicker for landowners, developers and the courts to resolve them.
“This work builds on and, in some respects, depends on, the recommendations we made in 2011 for reforming the general law of easements. We look forward to a response from Government to both these important reports.”
Nick Lloyd, partner at Nabarro, said: “The Law Commission is to be commended for a thorough and intelligent review of the problems rights of light present from both a developer and a landowner’s perspective.
Developers will be pleased that the Law Commission describes rights of light as “archaic” and “unclear” and acknowledges that settling rights of light disputes can be a major cause of delay to much needed development of homes and commercial buildings, as well the law as it stands encouraging landowners who would ultimately be happy with a money payment, to use silence, delay and the threat of an injunction to drive up the price they are offered by the developer in exchange for a loss of light.
However, the Law Commission also acknowledge the need to strike a balance with the “immensely important” amenity value of natural light to buildings and our homes.
The Law Commissions therefore makes several recommendations which it hopes will strike a balance between these competing legitimate interests as well as simplifying this horribly complex area of law.”
Reflecting on the report, Gordon Ingram, surveyor and senior partner at GIA, said: “The Law Commission recommendations would cement in statute the Supreme Court’s Coventry v Lawrence judgment. The new proposed statutory test would ensure that the remedy of an injunction or damages is proportionate, and for the first time acknowledge the use of artificial light and the public benefit of a development. Secondly, the Notice of Proposed Obstruction regime would be available for the occasional extreme cases that do exist, where a landowner uses the threat of injunction to better their negotiating position. Together these measures would ensure that mainstream practice, where reasonable settlements are agreed, is strengthened.”
The report is available at: http://lawcommission.justice.gov.uk/publications/rights-to-light.htm
For full analysis of the report, see EG’s Practice & Law section on Saturday 6 December.
