The Law Commission has published its consultation on rights to light following a review of the law in the area.
Rights to light are created either deliberately or via prescription over a 20-year period and can be upheld by a court through an award of damages or an injunction against a development. Complaints concerning interference with light can be made late in the development process, in certain instances leading to the demolition of part of a development. This has translated into uncertainty for developers as well as additional cost.
In recognising the need to bring greater clarity to the process, the Law Commission has produced a detailed 132-page consultation. Its key recommendations are:
• the introduction of a statutory notice procedure, which would require landowners to tell potential developers within a specified time if they intend to seek an injunction to protect their right to light;
• the introduction of a statutory test to determine when courts may order damages to be paid rather than halting development or ordering demolition; and
• ensuring that rights to light can no longer be acquired by prescription; a measure designed to guard against future disputes.
Commenting on the proposals, Professor Elizabeth Cooke, Law Commissioner, said: “Rights to light are important. These rights do not just add to a property’s value; they also enhance the amenity of our homes and businesses.
“But there is also a public interest in the development of the modern, high quality residential, office and commercial development that we need in our town and city centres. This project examines a difficult area where a balance is needed between the rights of different landowners.
“The commission’s aim is to bring more clarity, certainty and transparency into the law relating to rights to light, to reduce the scope for disputes and, where they do happen, make it simpler, easier and quicker for landowners, developers and the courts to resolve them.”
Anne Waltham, head of real estate litigation at Wragge said: “The Law Commission has sought to strike a balance between the needs of developers and the rights of occupiers of neighbouring commercial and residential property. It has done a good job, but invariably it is difficult to please everyone.
“Eyebrows will be raised at the proposal to abolish the acquisition of future rights by prescription and developers may find the proposed statutory notice period time consuming. There is also no proposal to reform the assessment of equitable damages.”
The consultation is open until 16 May and is available to download.
• For full analysis of the paper, see EG’s Practice & Law section on 23 February.
