The Law Commission published its consultation paper on rights to light on 18 February 2013 prompting a number of press reports that rights to light were under threat in the Government's planning law shake-up.
It is well established that property owners can gain the right to light passing over a neighbour's land to enable the ordinary use of a building provided the light to the windows has been enjoyed for at least 20 years. The importance of these rights was highlighted by the decision of the High Court in 2010 in the case of HKRUK II (CHC) Limited v Hinney in which the court granted an injunction requiring partial demolition of the building which obstructed a neighbour's right to light. In that case, the demolition was ordered after Mr Heaney, the owner of a Grade 2 listed Victorian building, had objected to the development plans but he only went to court once the property had been built. In circumstances where it could have been argued that Mr Heaney had sat on his rights, and in which many expected the court to award the payment of damages in place of demolition, the decision caused widespread concern in many quarters.
Many commentators have said that the decision makes it harder to resolve rights to light disputes as neighbours who are not prepared to engage with a developer potentially increase the sum that they might be able to demand in return for a release of any rights to light.
On the one side you have property owners who are keen not to have their rights curtailed in any way and on the other you have developers who do not want to be held to ransom when trying to build new schemes.
The purpose of the Law Commission’s consultation paper is to investigate whether the law by which rights to light are acquired, enforced and extinguished provides an appropriate balance between the important interests of land owners and the need to facilitate the effective and efficient use of land through its development.
It would be in everyone's interests if there is greater certainty and transparency about the law relating to rights to light as well as removing unnecessary constraints on development, particularly in central London and the South East where there is enormous pressure on central Government and local authorities to do something about the shortage of affordable housing.
Proposals are under consideration include:
no future acquisition of rights to light by long use
- introducing a statutory test for when a court may award damages instead of an injunction
- the introduction of a new statutory notice procedure
- extending the jurisdiction to the Lands Chamber to discharge or modify rights to light that are
- obsolete or have no practical benefit.
The Law Commission’s consultation is to be welcomed because, at the moment, the law is in a state of flux. Pending resolution, any landowner wishing to develop their premises should give early consideration to their options where rights to light disputes could arise.