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04-12-2014

Law Commission Report No. 356, Rights To Light

The Law Commission has today (4 December 2014) published its Report following on the consultation on Rights to Light which it launched in February 2013.  The Report is lengthy and detailed, so we will comment in a fuller note later.  A full copy of the Report and the consultation can be found at http://lawcommission.justice.gov.uk/areas/rights-to-light.htm.

The Report builds on the Commission’s 2011 report on easements more generally, and its recommendations are in part dependent on implementation of the proposals in that earlier report.  Rights to light were thought to merit further special consideration because of evidence that they could be used as a way of extracting large sums of money from developers, and that the legal framework did nothing to discourage or control that.  The case of HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch), in which an injunction was granted in support of rights of light requiring the demolition of two floors of a new building, served to exacerbate the problem.

The aim of the proposals is therefore to strike a balance between reducing an unfair obstacle in the way of development, and protecting rights of light (as well as the monetary value of those rights).  The proposals are presented in alternative versions: as additions to the Commission’s draft Easements Bill; and as a separate draft Rights to Light Bill (though the Commission emphasises that one should not be enacted without the other).

The main proposals are:

• A simplification of the law of prescription, by which a right to light can come into being with the passage of time.  The proposed system, though simplified, would in some respects be more demanding, in the sense that it would make it harder rather than easier for a right to come into existence in this way.  The consultation paper provisionally recommended the abolition of prescription in relation to rights to light, so this represents a shift.
   
• As a connected matter, repeal of the unwieldy and technical Rights of Light Act 1959, which enables services of notices to prevent rights to light being acquired by prescription, to be replaced by a simpler procedure.
   
• Implementation of a new statutory test to make the outcome more predictable when courts are deciding whether to protect a right to light by means of an injunction, or to award damages instead.  This takes the form of a list of relevant factors, which specifically include the impact of an injunction on the developer, and the public interest.  The latter point is expressly intended to take account of the impact of the Supreme Court’s decision in Coventry v Lawrence [2014] UKSC 13.
   
• A procedure whereby a developer could serve notice on neighbours requiring them to claim an injunction within a period of eight months from service of the notice, or lose the right to do so.  This would give developers certainty, and should make negotiations more effective.
   
• While in their 2011 Report the Commission have recommended that non-use of an easement for a continuous period of 20 years should demonstrate that it has been abandoned, it is now recommended that in relation to rights to light the period should be only five years, in view of the ease of establishing that a right to light is not being used (for example by a window being blocked up).
   
• The existing power of the Lands Chamber of the Upper Tribunal to modify or discharge restrictive covenants should be extended to all easements, whether created before or after reform.

This is a package of proposals which will be welcomed by developers, as greatly limiting the scope for them to be held to ransom by rights to light.  It should also be useful in the context of opposing lease renewals on redevelopment grounds, where a developer who had served the appropriate obstruction notices should be confident that the existence of rights of light could not throw doubt on its ability to carry out its scheme.

One element which is missing from the proposals is a procedure for putting a value on infringement of a right to light, in cases where no injunction is to be granted.  The court’s rules encourage mediation of disputes, of course, and it is always possible to refer disputes to the Lands Chamber of the Upper Tribunal for determination by arbitration, but it might be helpful for a statutory procedure to be established.

All that remains now is for the government (probably the new government, post-May 2015) to be persuaded to find parliamentary time to enact these proposals or something like them.

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