The Law Commission has published its final recommendations for significant reforms to the law on rights to light (Law Commission Report No.356, December 2014).
What is a right to light?
A right to light is a private property right that protects the passage of natural right into some buildings. It arises either as a result of a specific grant or, more usually, a period of long use under the rule of prescription.
Why are reforms needed?
Despite their ancient origin, rights to light are highly relevant today and can be a serious constraint on new development, particularly in built-up areas. Responses to a survey by the British Property Federation quoted in the Law Commission Report indicate that rights to light issues delay development projects by an average 27 months, with the average cost of delay being of £6.86m.
The law is also unclear and its impact uncertain. Shockwaves were created by the High Court decision inHKRUK II (CHC) Limited v Heaney  where an infringement of a right to light resulted not in the anticipated award of damages, but an injunction requiring the demolition of the top floors of a new development that had already been let.
The Law Commission aims to simplify the law in a way that strikes a fair balance between protecting legal rights to receive natural light and facilitating new development.
What are the key recommendations?
- Simplifying the way that rights to light are created. Most rights to light are created by prescription. While initially proposing to abolish the acquisition of rights to light by prescription altogether, the Law Commission now recommends that the current three complex methods of acquisition by prescription are replaced by a single straightforward statutory scheme.
- A new procedure to stop rights to light arising by prescription. This would be achieved by replacing the existing complicated and expensive system of light obstruction notices with a much more straightforward registration process.
- A new “Notice of Proposed Obstruction” procedure to require a party with the benefit of a right to light to decide within a specified period of not less than eight months whether they intend to pursue an injunction. This is arguably the most significant recommendation for developers who, particularly afterHeaney, have been faced with the possibility of landowners with the benefit of rights to light holding them to ransom by prolonging negotiations and using the threat of an injunction to increase compensation.
- A new test on the appropriate remedy for infringement. When should damages be awarded instead of an injunction? Since Heaney, the Supreme Court in Coventry v Lawrence (2014) UKSC 13 has redressed the balance to some extent by suggesting that the courts should take a more flexible approach weighing all the circumstances and that public interest should be a factor. The Law Commission has taken this into account in formulating a statutory test to be applied by the courts intended to produce a more predictable and proportionate result.
However the Law Commission has not gone so far as to recommend changes to the measure of damages that should be awarded instead of an injunction, suggesting that this highly controversial area should be examined separately at a later stage.
- Two new ways of bringing a right to light to an end:
- a presumption of abandonment if a right to light it is not used for five years; and
- extending the jurisdiction of the Lands Chamber of the Upper Tribunal to enable it to modify or discharge existing and future rights to light.
No changes are recommended to a local authority’s ability to override rights to light under section 237 Town and County Planning Act 1990. The Law Commission considers that this should continue to be used as a tool for facilitating development that is in the public interest.
Do solar panels enjoy a right to light?
One topical issue considered by the Law Commission is that of solar panels. Many responses to an earlier Law Commission consultation argued that solar panels should benefit from a right to light. The Law Commission’s view is that the existing law on rights to light does not extend to solar panels and that if light to a solar panel needs to be safeguarded, the solution ”lies in the law that governs in what circumstances planning permission should be granted”.
The Law Commission recommendations are very welcome in that they would simplify a complex area, make negotiations more efficient and transparent and enable developers to evaluate more easily whether they face the risk of an injunction. It is now for the Government to decide whether or not to implement the recommendations. It is to be hoped that they will, but it is noted that the Government’s response to the Law Commission’s 2011 report on easements, Making Land Work, still awaits a response.