Rights to Light Reform: Law Commission Consultation
On 18 February 2013 the Law Commission announced that it was beginning a consultation process regarding possible changes to the law governing "rights to light".
A right to light is an easement that gives neighbouring owners a right to receive light to their land or buildings through defined apertures (usually windows) across another owner's land. The latter cannot interfere with the right – for example, by erecting a building on its land that blocks the light.
The Law Commission published its consultation as a result of increasing debate about the impact of rights to light. As reported in the Telegraph earlier this week, the Department for Communities and Local Government were said to be interested in reforming the law after the High Court ordered a developer in Leeds to demolish part of the building in the city centre which obstructed a neighbour's light in 2010 (see HXRUK II (CHC) Ltd v Heaney  EWHC 2245 (Ch)).
Currently an owner of a right to light which is going to be obstructed is, in principle, able to apply for an injunction against a developer at any time before the development is completed or, as in the Leeds case, even after the development is completed seeking an order that the development (or the relevant part of it) be demolished. The owner of the right to light may, and commonly does, consent to interference with their right in exchange for compensation. However, according to the Association of Light Practitioners there is currently a perception that landowners who benefit from a right to light often sit back and not engage in negotiations with the developer "to increase the sum they can demand" in compensation.
The Law Commission's aim is to a reach an "appropriate balance between the important interests of landowners and the need to facilitate effective and efficient use of land through its development."
In the consultation paper the Law Commission makes several proposals on which they seek consultees' views including the abolition of the acquisition of rights to light by prescription (i.e. long use) and proposals to introduce a statutory test to simplify the way in which Courts decide whether to award damages instead of granting an injunction in rights to lights cases. This new guidance would allow Courts to award damages instead of an injunction if the grant of an injunction would be disproportionate. The Court would have to consider factors such as the conduct of the parties and whether monetary compensation would be an adequate remedy, when deciding whether to award damages.
In response to the issue of landowners using their rights to light as a ransom, or bargaining chip, the Law Commission has proposed the introduction of a statutory notice procedure. This procedure would allow the developer to trigger a process whereby, in the event that agreement cannot be reached regarding compensation, the neighbouring owner would have to apply for an injunction within a certain period of time or they would lose the right to do so altogether.
This is plainly an area of law where reform is much needed. The existence of rights to light causes great uncertainty for developers and, particularly following Heaney, compensation payments are commonly now made which are wholly disproportionate to the loss of amenity/value actually suffered by the neighbouring owner.
The consultation period runs until 16 May 2013. The consultation paper along with full details of how to respond is available here.
The Law Commission has emphasised that the proposals in its paper are not conclusive and responses will influence its final recommendations. As a result consultees are "strongly encouraged" to respond to its proposals.
These are important proposals and we recommend that anyone with an interest in this area of law should certainly make their voice heard.