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The future is light…?

21 January 2015

The long-awaited final report on rights of light was finally published by the Law Commission in December, following the consultation process which ended in May 2013. Running to 241 pages, it’s not a light read – but it does include some draft legislation in the form of the Rights to Light (Injunctions) Bill.

Why is action needed to address the law on rights of light?

The Law Commission has been assessing whether the current law under which rights to light are acquired, enforced and extinguished provides an appropriate balance between the need for development of land and the interests of neighbouring property owners.

Concerns about this balance were noted by the Law Commission in its report in June 2011 on Easements, Covenants and Profits à Prendre. It concluded that the law on rights of light should have special attention given that they “appear to have a disproportionately negative impact upon the potential for the development of land”.

An illustration of the issue was given in HKRUK II (CHC) Ltd v Heaney (2010), where the court ordered the partial demolition of a building even though the neighbour had delayed in seeking an injunction and many considered that damages might have been an adequate remedy. The Law Commission commented that “the case has had a detrimental effect on the ability of rights to light disputes to be resolved swiftly and amicably.”

In particular, there has been uncertainty as to the circumstances in which the court will and will not grant an injunction. Whilst the House of Lords helpfully took the opportunity in Coventry v Lawrence (2014) to signal that the recent court decisions on assessing whether to grant an injunction had taken a wrong turn, there remain areas of uncertainty for complainants and developers alike.

What are the key proposals for change?

The Law Commission’s proposals for the reform of rights of light have three key aims:

  • introducing greater certainty and transparency into the law relating to rights to light, making disputes simpler, easier and quicker to resolve
  • ensuring that rights to light do not unnecessarily constrain development, and
  • retaining some protection of rights to light as a valuable and protected amenity.

The key proposals for reforming the law relating to rights of light are:

  • introducing a single statutory method of acquiring easements including a right to light (over 20 years between freeholders) to replace the existing three methods of acquisition (rather than abolishing prescriptive rights of light, which was the Commission’s original suggestion)
  • amending the law so that an unused right to light is treated as abandoned if it has not been exercised for five years
  • widening the jurisdiction of the Upper Tribunal (Lands Chambers) to allow a right of light to be modified or discharged in a similar way as for restrictive covenants, ie where the rights have become obsolete or ceased to have practical value
  • replacing the current system of light obstruction notices under the Rights of Light Act 1959 with a new simplified certificate procedure to prevent a neighbour from acquiring a right to light;
    introducing a Notice of Proposed Obstruction to require a party affected by a proposed development to decide within a timetable (of around eight months) whether to issue proceedings for an injunction, after which time the complainant’s remedy would be confined to damages, and
  • setting out clear guidance that, although an injunction will still be the primary remedy for an infringement, the court must not grant an injunction if this would be a disproportionate means of enforcing the claimant’s right to light - with relevant factors listed in order to guide the courts, including whether artificial light is relied upon and the public interest.

There is to be no change to the approach for measuring light and whether a right to light has been infringed. The question of how to approach the measure of damages is also presently left open.

What next?

It seems unlikely that the report and draft bill will be progressed before the General Election in May 2015.

This article was written by Emma Humphreys.

For more information please contact Emma on +44 (0)20 7203 5326 or emma.humphreys@crsblaw.com