The Law Commission's rights to light consultation closed recently. It has been interesting to watch the debate on the proposals unfold over recent weeks, and the lines being drawn have not always fallen in a way that might have been imagined at the outset. For example, we understand that the British Property Federation's members have been broadly anti abolition of prescriptive rights to light, a point which, following the Commission's proposals in its 2011 report on easements, and replicating systems applied effectively overseas, might have been expected to garner greater support. Clearly, the sense of an Englishman's home being his castle remains strong on these shores! That said, there does seem to be a general sense that, after Heaney, actions to unlock the process of negotiations on rights to light infringements in a sensible and equitable way, would be a good thing for all concerned.
One of the ripest areas for debate appears to be how the Notice of Proposed Obstruction (NPO) procedure is likely to work. Under the broad proposals, a developer looking to flush out an injunction could serve an NPO on affected parties, inviting them to take positive steps towards an injunction. If no action was brought, the developer would then have a 5 year window to proceed free of the threat of an injunction, provided the development actually carried out did not exceed the infringement of the development referred to in the NPO. Key issues here are how much information should be included in the NPO, and how closely aligned to the development actually intended the detail should be. The point here is that developers might suggest the largest possible infringement in their NPOs, in order to give them the broadest possible envelope within which to sculpt their actual development plans. As suggesting an inflated infringement might provoke affected parties into taking injunctive action where, had the developer been open and honest about their more realistic plans, they might not otherwise have done so, there is clearly a risk of prejudice in the proposals which the Commission will need to grapple with.
A similar issue surrounds the degree of detail which should be disclosed in the NPO. Too little detail might leave affected parties 'in the dark' as to what is actually being proposed; too much detail, and affected parties might feel overwhelmed with paperwork and developers might reasonably argue that some of the procedural benefit to them would be lost, in that they would prefer the NPO procedure to offer a means of flushing out issues before they had incurred significant expense in running up detailed plans through the planning process.
As ever, so much of the devil will be in the detail. Not least due to the importance of this issue to so many of our clients, we will be interested to see whether the Commission is able to piece its way through what still risks becoming an intractable maze of competing interests.