On the 18th February 2013 the Law Commission opened a consultation considering the current law relating to ‘rights to light’. The aim of the consultation was to strike a balance between the rights of landowners and the rights of those wishing to develop neighbouring land.
A right to light is a valuable easement that provides a landowner with a right to receive light through defined openings in a building (usually a window). The owners of neighbouring land burdened by such a right are prevented from substantially interfering with the access of light, for example by erecting a building, which would obstruct the flow of light.
Rights to light are often acquired by long use “prescription” rather than express agreement between landowners and often parties with the benefit and burden of such rights are unaware of their existence. Rights to light are not a material consideration to be taken into account by local planning authorities when granting planning permission. A development can therefore be hindered or even prevented due to the enforcement of rights to light despite the fact that planning permission has already been granted.
The consultation will consider the relationship between rights of light and the planning system and examines whether the remedies available to the courts are reasonable, sufficient and proportionate.
The consultation paper proposes the following for discussion:
- In the future it should no longer be possible to acquire rights to light by long use (known as “prescription”).
- The introduction of a statutory test to clarify the current law on when courts may order a person to pay damages instead of ordering that person to demolish or stop constructing a building that interferes with a right to light.
- The introduction of a new statutory notice procedure, which requires those with the benefit of rights to light to make clear whether they intend to apply to the court for an injunction (ordering a neighbouring landowner not to build in a way that infringes their right to light), with the aim of introducing greater certainty into rights to light disputes.
- A proposal that the Lands Chamber of the Upper Tribunal has the power to extinguish rights to light that are obsolete or have no practical benefit with payment of compensation, if appropriate.
The consultation will no doubt be welcome news to developers hoping that areas of uncertainty in respect of rights of light will be resolved. The current law remains in place for the present and developers and landowners alike are advised to exercise care with regard to the existence and possible enforcement of rights to light. We are able to advise upon any detailed specific queries which may arise.