Law Commission Consults Once More on Rights to Light

Principles of Ref. HKRUK ll (CHC) Ltd v Marcus Alexander Heaney [2010]

In a consultation that opened on 18th February, the Law Commission, an independent non-political body, is asking for views on the current law on rights to light; including on the creation of the easement, enforcement and extinguishing it.

The aim of the Law Commission’s project is to examine the balance in the current law between the rights of landowners and the public interest in accommodating appropriate development, and the efficient use of land.

Rights of Light

Although the Law Commission is technically non-political, it is certainly interesting that this coincides with the Government’s push to simplify and encourage development in an effort to stimulate growth – particularly as rights of light litigation have stood in the way of a number of sizeable developments, particularly high rise buildings (see HKRUK ll (CHC) Ltd v Marcus Alexander Heaney [2010] for example).

Rights to light are private property rights that benefit a tenement. The light must enter through a defined aperture, however, so only buildings, both residential and commercial, can be granted a right to light. Rights to light are sometimes created deliberately, but more often arise informally, over time (by “prescription”). This can happen if light comes through a window over a neighbour’s land for 20 years, for example.

Disputes can arise when a neighbour wants to put up a building that would interfere with a right to light. Under the current law there is uncertainty as to when a court will order that building works be prevented, or a building pulled down, or award a payment of damages instead. Past cases provide different precedents and disputes can drag on for years, even until after a development has been built. This creates a large amount of uncertainty for the landowner, the developer and their advisors which increases costs and causes unnecessary delays.

The Consultation

The Commission is seeking views on the state of the current law and on its provisional proposals. These include:

• bringing greater transparency and certainty to disputes by introducing a statutory notice procedure. This would require landowners to tell potential developers within a specified time if they intend to seek an injunction to protect their right to light.
• simplifying and clarifying the law by introducing a statutory test to determine when courts may order damages to be paid rather than halting development or ordering demolition, and
• helping to guard against future disputes by ensuring that, for the future, rights to light can no longer be acquired by prescription.

Professor Elizabeth Cooke, the Law Commissioner leading the project, says: “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.”

Comment

The consultation is open until 16 May 2013 and many commentators are already expressing their ire over, in particular, the proposition that no rights to light could be established in the future by prescription. That would essentially mean that no-one without an easement already inscribed as a charge on their property’s register could enforce a right to light on a neighbour, whether they have enjoyed that light uninterrupted for 20 years or 1000 years.

With the Government pushing for greater development, removing this barrier could result in substantial losses of natural light to properties around the country. For some, this could be replaced by artificial light, but in many cases a right to light is exercised to protect an amount of daylight that is essential for a specific activity – for creating art, for example.

Removing a tenement’s only way to protect its light, without replacing that avenue with a suitable alternative option, could leave many residents with a greatly depleted quality of life without recourse.

Is this a price worth paying for economic stimulation? Or should an ancient right that has protected landowners for hundreds of years continue undiminished?

 

08/03/2013                                                                                                         SRJ/LCB

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