Proposals to reform the law on rights of light

Out-Law News | 26 Jul 2011 | 10:13 am | 2 min. read

The independent body which examines the law in England and Wales is to review "flawed" rights of light laws as part of its latest programme of law reform projects.

The Law Commission will investigate whether the current law by which rights of light are acquired and enforced provides "an appropriate balance between those benefitting from the rights and those wishing to develop land in the vicinity," according to its Eleventh Programme of Law Reform (46-page / 213 KB PDF).

The Law Commission specifically excluded consideration of the law on rights of light from last month's report on easements and covenants, to the disappointment of the property industry.

A right of light gives the longstanding owner of a building with windows the right to maintain a level of natural daylight by objecting to construction or any other obstruction. It is also possible for a right to light to exist if granted expressly by deed, or granted by implication.

Rights of light can often be acquired informally with the passage of time. The enjoyment of the light through a window, without interruption or consent, for a period of 20 years will, in most cases, give rise to the right.

Where a right of light comes about in this way, a developer may not know about it until it tries to develop the land. The consequences can be severe.

"Where a development interferes or would, if constructed, interfere with a neighbour's right then the benefitting owner is likely to be able to prevent its construction or, in some circumstances, to have the development demolished," the Law Commission report said.

Developers have faced uncertainty since the Heaney case last year.

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.

"The implications of claims to rights of light are huge, and the Law Commission has clearly recognised this," said Matthew Baker, a property law expert with Pinsent Masons, the law firm behind Out-Law.com.

"What the Commission may recommend remains to be seen, but possibilities include an extension to the Town and Country Planning Act which is currently used to extinguish unwanted easements by local authorities 'appropriating' land that they own or have an interest in to make way for developments, or perhaps abolishing the future obtaining of rights of light by long use or restricting the remedies for infringement of rights of light to damages. This would put developers in a stronger position," he said.

The Law Commission intends to start looking at possible changes to the law in early 2012 and publish a consultation paper with its findings the following year. If the Government agrees that changes are appropriate, the Commission will publish a final report with draft laws in late 2014 or early 2015.

"Until then [the Heaney case] stands as good law and developers should take care," said Baker.