The Law Commission is to be commended for a thorough and intelligent review of the problems presented by rights of light; acknowledging that there is a difficult balance to be found between the important amenity value of natural light against facilitating development in circumstances where some landowners use uncertainty in the law and the threat of injunction to drive up the release premium.
The commission’s sensible suggestions for reform probably go as far as they can, but stop short of being radical. Nonetheless, there is benefit to both developers and landowners in seeing them enacted; especially in respect of the proposal for a statutory test to give some framework to the exercise of the courts’ wide discretion on remedies, which would specifically acknowledge the need to be proportionate and that public benefits such as regeneration are relevant to the decision on remedies.
While the decision in Coventry v Lawrence probably means the courts should already take a more balanced approach, the judges in that case criticised the existing “Shelfer” test (with its emphasis on whether the loss of light is “small”) and the new statutory test would finally make Shelfer redundant in rights of light cases.
The question now is, when will government respond? No response has yet come to the related Easements report from 2011, which does not bode well.
Our hope is that government – now with the benefit of an excellent body of work and sensible suggestions for change across both reports – will find new impetus to give both the attention they deserve.
Gordon Ingram, Gordon Ingram Associates, and Nick Lloyd, Nabarro
