Law Commission's Right to Light Report

The Law Commission’s final report on the reform of the law relating to rights to light was published in December 2014. The Law Commission has described its recommendations as “undramatic”. Some commentators are expressing their disappointment with the long-awaited recommendations. Nevertheless, according to Gary Lawrenson, developers will welcome the proposals which, if enacted, should help minimise delay and uncertainty in development projects caused by rights to light issues. Those recommendations are summarised below.

1. New statutory test on remedy for infringement

The Rights to Light (Injunctions) Bill, published as part of the Law Commission’s final report, recommends a statutory test to clarify when a court should award damages to be paid, instead of granting an injunction (which may halt development or require demolition) – particularly where an injunction would be a disproportionate means of enforcing the neighbours’ rights to light. This test should allow developers to more confidently predict the risk of an injunction.

2. New statutory notice procedure on issuing injunctive proceedings

Another key recommendation is that developers are to be given a ‘put up or shut up’ statutory notice procedure. This would effectively enable a developer to serve notice of a proposed obstruction on owners of affected neighbouring properties. Such owners would then have to decide within eight months of such notice being served whether or not to seek to protect their rights to light by way of an injunction. Upon expiry of the notice period, they would lose the opportunity to claim an injunction. Whilst this procedure may introduce some certainty for developers, it should be considered with caution because it may, in fact, be a “Trojan Horse” for developers (as in some circumstances this process could, ironically, actually in itself increase delay and litigation).

3. Simplification of the systems relating to Rights to Light

The other recommendations relate to the acquisition, prevention or removal of rights to light.

• The Law Commission has recommended that the existing three methods by which rights to light can be acquired are replaced with a simplified, single, statutory method.
• The Law Commission also recommends a new simplified statutory procedure to prevent the acquisition of rights to light by prescription. They propose achieving this by replacing the rather cumbersome light obstruction notice procedure with a more straightforward registration process.
• They also recommend a rebuttable presumption that rights to light are abandoned if unused for five years, together with an expansion of the jurisdiction of the Upper Tribunal (Lands Chamber) to allow them to discharge or modify obsolete or unused rights to light (as it currently can with restrictive covenants).

Whilst the Law Commission has proposed to simplify and consolidate, developers will, perhaps, be disappointed that the Law Commission decided to retain the law of prescription. Developers will also be frustrated that the Law Commission were not persuaded to introduce a statutory cap on equitable damages.

That said, this gradual approach probably improves the prospects of the Bill making it onto the statute books (although this is most unlikely to be before the general election).

Developers should not, however, go changing their business plans in anticipation of this recommended law reform on rights to light just yet. Law reform proceeds at a glacial pace: notably, for example, the Government has yet to respond to the 2011 Easement Bill. Gary Lawrenson fears the Rights to Light (Injunctions) Bill may suffer a similar fate. Only time will tell.