Resolving Rights to light claims – changes afoot?

The Law Commission published its consultation paper on rights to light on 18 February 2013.  The consultation paper concerns matters of fundamental significance regarding this complex and contentious area of law and proposes what would no doubt be controversial changes.

The decision in HKRUK II (CHC) Ltd v Heaney [2010] EWCH 2245 (Ch) is considered to have prompted the Government to review the current law.  In that case, the High Court granted an injunction requiring a developer to remove two storeys of an office building that had already been built.  Prior to this case it had generally been accepted that it is difficult to obtain an injunction where works had already been completed and the person with the right to light had not taken action earlier.  A full transcript of the case can be found at http://www.bailii.org/ew/cases/EWHC/Ch/2010/2245.html

The general sense is that recent case law has shifted the balance too far against developers and in favour of neighbouring landowners, with the law inhibiting development and creating a mechanism for landowners to share in the developers’ profits.  There seems to be consensus that the law requires reforming but it is less clear how this should be done.

The 2011 Law Commission Report on the law of easements recommended that a more detailed review of rights to light be undertaken.  The recently published consultation paper examines the law on rights to light and considers whether an appropriate balance is struck between the interests of developers and neighbouring landowners.

The paper makes the following provisional recommendations:

1.  That it should no longer be possible to acquire rights to light by prescription (i.e. long user). Existing rights to light will not be affected;

2.  A new statutory test to clarify when the court can order a person to pay damages rather than ordering an injunction to prevent or demolish an infringing development;

3.  Those who enjoy rights to light should be required to follow a statutory notice procedure, making it clear whether they intend to seek an injunction against a proposed development;

4.  That the Upper Tribunal (Lands Chamber) should be able to extinguish rights to light that are obsolete or have no practical benefit, with compensation being paid where appropriate.

Whether a balance between different landowners' property rights can be found remains to be seen.  On the one hand, people who have enjoyed a right to light should be able to defend that right but on the other, new residential, commercial and office developments are needed.  Responses to the consultation paper are requested by 16 May.
 
by Clare Greig, Chartered Legal Executive