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New statutory notice procedure among recommendations for reform of rights to light in England and Wales

Out-Law News | 04 Dec 2014 | 4:03 pm | 2 min. read

Landowners that wish to enforce a right to light against neighbouring developments would be given a set period in which to take action if proposals for reform put forward by the Law Commission are taken forward.

The Law Commission, which regularly reviews the law in England and Wales and makes recommendations for reform, has also proposed that developers be able to pay damages for infringements of rights to light in certain circumstances rather than being forced to halt or demolish building work. It said that its proposals, if implemented, would "strike a balance" between the interests of landowners and the law's recognition of the need for appropriate development.

Property litigation expert Matthew Baker of Pinsent Masons, the law firm behind Out-Law.com, said that the proposals had the potential to clarify an area of property law that had in the past acted as a barrier to development.

"Following the significant impact of and uncertainty created by the Heaney case, where Pinsent Masons acted for the successful party, there has been a need to clarify the law in this area in the hope of reducing the scope for disputes," he said. "When disputes do arise, there is also a need to ensure that the law allows for more efficiency and certainty in their resolution for landowners and developers alike."

"Subject to parliament having time to put these recommendations into effect I am sure that developers, in particular, will welcome them as they will hopefully provide a route to much-needed certainty in the resolution of rights to light disputes that will make way for developments by forcing landlords to effectively 'put up or shut up' with regard to claiming that their rights will be infringed. This, coupled with a revised test for injunctions which is based on proportionality, should prevent the lengthy delays in development that rights to light issues can cause and allow the courts to effectively and fairly balance the competing interests between developers and landowners," 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 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. This final method is known as 'prescription'.

Announced in July 2011, the Law Commission's reform project was prompted by a 2010 case in which a developer, Highcross, had redeveloped an existing five-storey building in Leeds city centre opposite property belonging to a Mr Heaney. As the developer had proceeded in full knowledge of 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.

In its final report, which also contained a draft Right to Light (Injunctions) Bill, the Law Commission recommended the creation of a statutory notice procedure which would allow developers to require neighbouring landowners to tell them if they intend to seek an injunction to protect their right to light within a specified time period. If the landowner did not meet this time limit, they would only be able to claim damages. The Law Commission has also proposed the creation of a statutory test to clarify when courts may order damages to be paid rather than granting an injunction.

The Law Commission has dropped its recommendation, contained in a consultation last year, that rights to light granted by prescription be abolished. Instead, it has recommended that the procedure allowing landowners to prevent their neighbours from acquiring rights to light by prescription be updated. The Lands Chamber of the Upper Tribunal should be able to end or modify obsolete or unused rights to light, and rights should be abandoned if they are not used for five years, it said.

Professor Elizabeth Cooke, the Law Commissioner who led the project, said that its recommendations built on an earlier law reform project on easements more generally.

"We look forward to a response from government to both these important reports," she said.