Today, the Law Commission released its long-awaited report on the reform of the archaic law on rights to light, following consultation with the real estate industry last year.

The Law Commission’s aim has been to strike a balance between the competing interests of those with the benefit of rights to light and those wishing to undertake developments and to provide “clarity and efficiency” in a way that “facilitates settlement” of disputes.

In summary, the main recommendations are:

1. A new test for whether an injunction should be granted to prevent interference with rights to light or merely damages

The 2010 case of Heaney shocked the development industry when an injunction required the demolition of two floors of a new building almost a year after it had been built.   This year’s Supreme Court case on the law of nuisance, Coventry v Lawrence, has redressed the balance to a certain extent by taking into account public interest.  However, the Law Commission has concluded that further guidance is required where the overriding principle is proportionality.  In addition, they recommend the courts should consider:

  • loss of amenity to a claimant, taking into account the extent to which they rely on artificial light;
  • conduct of the claimant, in particular any delay in seeking an injunction;
  • impact of an injunction on the developer; and
  • public interest.

2. A procedure requiring a claimant to elect whether to seek an injunction within eight months of the developer serving notice

The Law Commission hopes that this procedure will help prevent claimants holding developers to ransom, make negotiations more effective and provide developers with a degree of certainty. If a claimant chooses not to seek an injunction, the amount of damages it can recover will be unaffected. 

3. Abandonment of rights to light after five years

This would apply, for example, where windows have been bricked up or a building demolished for over five years.

4. Simplified procedure for preventing acquisition of rights to light   

The Rights of Light Act 1959 should be repealed and replaced with a much simpler and cheaper procedure. The 1959 Act prevents the acquisition of rights to light by prescription (20 years’ continuous use) through a cumbersome, administrative process involving the service and registration of “light obstruction notices”.

The Law Commission has scrapped the idea of abolishing the acquisition of future rights to light by prescription.  This idea caused a significant outcry from the national press and in the event won little support from the development industry.

The Law Commission has scrapped the idea of abolishing the acquisition of future rights to light by prescription.  This idea caused a significant outcry from the national press and in the event won little support from the development industry.

These recommendations are a sensible and welcome update for this ancient area of law.  Even so, some of them depend on the Government adopting the recommendations in the Law Commission’s 2011 report on the overhaul of the law of easements (“Making Land Work”).  Three years on, the Government has yet to comment.  Hopefully, with the presentation of these new proposals, the Government will take both forward without further delay.