RIGHTS TO LIGHT CONSULTATION – a new assault or welcome clarification?

09 May 2013

On 18 February 2013, the Law Commission opened its three month consultation on rights to light. This has sparked outrage and some sections of the press have been quick to criticise. However, given the law on rights of light dates back to the 1600s, surely it is time it was reviewed and brought into line with the twenty-first century?

The consultation paper provides a useful summary of the current law relating to rights to light. It describes a "right to light" as "an easement that gives landowners the right to receive light through defined apertures in buildings on their land". The owner of land that is burdened by this right cannot substantially interfere with it without the consent of the benefiting owner. Rights to light can be created by express or implied grant and, most commonly, by long use. Long use involves 20 years of uninterrupted enjoyment of light through specific windows.

Rights to light are valuable and are considered to be a right in land with the rather unwelcome result of attracting SDLT liability on the release of any such rights. These historic rights give landowners certainty that their property will continue to enjoy natural light. Where such rights are infringed, the principal remedies are damages or an injunction, (for example, an order to stop the construction of a building or to remove parts of a building that have already been constructed).

The Law Commission's consultation paper follows its report in June 2011 on Easements, Covenants and Profits a Prendre. The paper makes it clear that rights to light deserve special attention on the basis that they "have a disproportionately negative impact upon the potential for the development of land". This was highlighted in the 2010 case of HKRUK II (CHC) Ltd v Heaney which dealt with the availability of injunctions following an infringement of a right to light. Contrary to expectation, the court ordered the partial demolition of a building, even though the neighbouring landowner had delayed seeking an injunction and damages were considered by some to be a more appropriate remedy. This has led to uncertainty over which remedy will be granted by a court, resulting in a more cautious approach by developers, which some fear may hinder legitimate development.

The consultation paper emphasises, however, that it is not suggesting development should proceed "no matter what the cost" and approaches rights to light as "valuable protections that should be protected". It seeks to strike a balance between the competing interests of economic growth and the protection of legitimate rights.

The key proposals set out in the consultation paper are as follows:

  • Rights to light should no longer be created by long use;
  • The introduction of a new statutory test to clarify when damages should be awarded instead of an injunction;
  • The introduction of a new statutory notice procedure requiring advance confirmation from landowners as to whether they intend to apply for an injunction within a certain time period;
  • Powers for the Lands Chamber of the Upper Tribunal to extinguish rights to light that are obsolete or have no practical benefit (with payment of compensation where applicable).

The consultation paper also invites views on other areas, including the test for when an obstruction of light constitutes a nuisance, thereby making it actionable. In addition it invites comment on the calculation of damages and the law of abandonment (where a right to light is abandoned permanently).

The consultation paper has attracted much attention and has split opinion. The law surrounding rights to light is certainly convoluted, resulting in inevitable delays and uncertainty in the development process whilst the position on rights to light is established. In much the same way as the National Planning Policy Framework was designed to create a streamlined system within which good development can take place, the goal of the consultation paper appears to be to simplify, clarify and create greater certainty, so that rights to light are not an unnecessary constraint on development.

Nevertheless, stinging criticism has been levelled against the proposal to abolish the creation of a right to light by long use as it would prevent houses and flats built in the past two decades from gaining a right to light. This is being criticised as the government's attempt to deprive the "little man" of protection from developers. There is the fear that householders could suffer when the value of their home falls due to neighbouring developments.

On the flip side, the proposals would bring greater certainty and clarity for developers and reduce delay and unnecessary costs. They would still be required to consider the adverse impact on neighbouring buildings and planning officials will need to bear light in mind when considering a planning application.

The debate sparked by the consultation paper should be welcomed, almost irrespective of the outcome. The piecemeal way in which laws, such as those surrounding rights to light have developed, means that any review should be welcomed to introduce clarity, if nothing else.

For further information, please contact:

Katie Buxton, Associate

Additional information