The Law Commission has issued a consultation paper on rights to light. Broadly, the Commission's proposals may be seen as “pro-development” while still recognising the importance of protecting the amenity value of rights to light.
An end to prescription?
For example, the paper suggests an end to the acquisition of rights to light through long use (prescription). If accepted, this should reduce the instances of developers needing to overcome rights to light, a significant proportion of which arise inadvertently through long use, rather than by express grant.
Any such change would not have retrospective effect, however, so rights which have already accrued or are on the cusp of accruing would remain untouched. That said, the Commission's proposals also include extending the Lands Tribunal’s powers, to permit modification or discharge of rights to light in certain circumstances. As well as providing a theoretical means to overcome prohibitory rights, such an extension should also limit 'ransom' payments, demands for which might be tempered by the right becoming liable to discharge in any event.
The effects of Heaney
The Commission also proposes significant changes to the rules governing the availability of injunctions for infringement of rights to light. HKRUK II (CHC) Ltd v Marcus Alexander Heaney (2010) shone a light on the tactic employed by certain right-owners who, by failing to take any active steps towards claiming an injunction, force developers into offering inflated payments to bring matters to a head. Referring to this, the Commission recognised that such tactics may be employed by parties “not interested in protecting their entitlement to light, but rather exploiting the right to protect it. It has long been open to landowners to threaten to prevent, or to cause the demolition of, a development by pursuing an injunction unless a significant payment is made….Heaney makes it very difficult for advisors to establish the likelihood of any threat being successful".
Use it or lose it
In light of the apparent prejudice to developers in this regard, the Commission suggests a procedure allowing right-owners a window of opportunity to assert their rights and take action to injunct. Without positive action within that window, the right to injunct would be lost. Parties whose rights were overcome would still be able to claim damages from the developer and, applying the decision in a previous case, Tamares, such damages might still include a share in the likely profit in the development. Nonetheless the ability of developers to proceed free of the threat of any injunction would be valuable.
Generally, the consultation will provide an illuminating read for anyone working in the field of property development with experience of the impact of rights to light, or indeed those who fear their rights may be at risk of infringement. Interested parties should note that responses to the consultation must be received by 16 May 2013.
The consultation may be found here.