Law Commission sets out thinking on "more proportionate" right to light

Out-Law News | 19 Feb 2013 | 9:17 am | 3 min. read

It should no longer be possible for property owners to automatically be granted the right to enjoy natural daylight at their property simply because they have done so for a number of years without interruption, the Law Commission has said.

It has published its provisional recommendations for reform of the law (142-page / 1.7MB PDF) for consultation. Its intention is to strike an "appropriate balance" between the rights of developers, and those of landowners and occupiers. It also considers whether existing rulings available to the courts are "reasonable, sufficient and proportionate". The Law Commission is the independent body which examines the law in England and Wales, and makes recommendations for reform.

Property litigation expert Matthew Baker of Pinsent Masons, the law firm behind Out-Law.com, welcomed the consultation. If taken forward, the Law Commission's proposals could introduce certainty to an area of law which often had costly implications for developers, he said,

"The Law Commission's objectives are laudable: to introduce greater certainty into an area of law where the current uncertainty causes delays to development, increases costs for developers and leaves landowners unsure as to how secure their rights to light are," he said. "If the law can be clarified, that will be good for the property industry."

"However, any likely statute is a few years off yet – the draft Bill is not expected until the end of 2014 – and these proposals may find they are hampered by a lack of parliamentary time," he said.

A right to light gives the owner of a building with windows the right to maintain a level of natural daylight by objecting to construction or any other obstruction. The right to light can be created if granted expressly by deed, or granted by implication. It can also be established in some cases through the enjoyment of light through a window without interruption for a period of 20 years, even if the other party has not consented. The Law Commission has recommended that this method, known as prescription, be abolished. It has also suggested that the Lands Chamber of the Upper Tribunal be allowed to extinguish rights to light that are obsolete or have no practical benefit, with payment of compensation in appropriate cases.

Announced in July 2011, the Law Commission's reform project was prompted by the Heaney case in 2010. In that case a developer, Highcross, had redeveloped an existing five storey building in Leeds city centre opposite Mr Heaney's property. As the developer had proceeded in full knowledge of Mr Heaney's complaints about loss of light, a mandatory injunction forcing the removal of the offending parts of the building was awarded. The developer appealed against the decision to grant an injunction, but the case was settled out of court before reaching the Court of Appeal.

According to evidence received by the Law Commission from property developers, the effect of the Heaney decision has been to encourage landowners to "sit back and not engage, to increase the sum they can demand" from developers looking to construct buildings that would affect existing rights to light.

"It has long been open to landowners to threaten to prevent, or to cause the demolition of, a development by pursuing an injunction unless a significant payment is made for the release of the right," the report said. "In introducing more uncertainty into the law governing the circumstances in which a court will, and will not, grant an injunction, Heaney makes it very difficult for advisers to establish the likelihood of any threat being successful."

Among the changes recommended by the Law Commission is the introduction of a new statutory test to clarify the current law on when courts may order a developer to pay damages to the landowner or occupier whose right to light has been infringed, instead of ordering that person to demolish or stop constructing a building that interferes with a right to light. The test would allow courts to award damages rather than order a developer to stop building or demolish a project where it would be "disproportionate" to grant an injunction.

The consultation paper sets out a number of factors which could be used by the courts to decide the most appropriate remedy, including the extent to which the property with the right to light will actually be affected by the works. This could include consideration of whether the occupier usually uses artificial light. The Law Commission also suggests that courts could consider whether monetary damages would be adequate compensation, as well as the conduct of both parties.

The Law Commission also recommends the introduction of a new statutory notice procedure, which would place the onus on parties with the benefit of rights to light to make it clear to developers whether they intend to apply to the court for an injunction preventing further work. The new procedure would introduce more certainty into right to light disputes while preventing the situation in the Heaney case, where extensive negotiations dragged on for several years without conclusion, according to the report.