Rights to Light - Important update from the Law Commission
by Peter Rolph, 05 December 2016
The Law Commission yesterday published its long-awaited review of rights to light legislation after several years of consultation.
A "right to light" is an easement that gives a landowner the right to receive light through defined apertures in buildings on his or her land. The owner of land that is burdened by the right cannot substantially interfere with it - for example by erecting a building in a way that blocks the light - without the consent of the benefiting owner. Rights to light are valuable: they give landowners certainty that natural light will continue to be enjoyed by a property – increasing its utility, value and amenity.
Although a number of proposals have been made, it is clear that the overarching ethos behind the recommendations is to try and clarify the legal relationships between different parties, simplify the law, and make negotiations more efficient. If this is achieved, then developers will greet it with a welcome sigh of relief. With this in mind, we have picked out two recommendations which stand out.
Of particular interest is the recommendation that there be a new statutory test to clarify when the court may award damages to a landowner as compensation for an infringement of a right of light, or an injunction to prevent development in order to protect a right of light. They also recommend that the public interest is taken into account when deciding whether to award an injunction or damages, as well as a new test of proportionality. Now for the first time, the courts will have to consider the public benefit of any development versus the protection of a private right of light.
This is in conjunction with the recommendation that there be a notice procedure which would force a landowner to apply to court for an injunction within eight months of being served with a notice, or acknowledge that they will accept damages only. This will be particularly welcomed by developers who raised concerns in the consultation process that without a time limit to establish whether a landowner will apply for an injunction, the uncertainty would often constrain development and some landowners used it as an opportunity to threaten an application for an injunction in order to improve their bargaining position in respect of a cash settlement.
Hopefully such uncertainty will be significantly reduced if this recommendation is implemented and the notice procedure will now make negotiation more effective and keep costs down for all concerned.