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Right to light

These pages deal with three issues:
  • Agreements excluding the right to light; and
  • Whether or not the court should grant an injunction in right to light cases or instead awarded damages in lieu
  • Quantum of damages where granted
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Law Commission consultation paper

Law Commission consultation paper

Summary

The Law Commission has published its Consultation Paper on rights to light, starting a consultation period that will end in mid-May 2013. The reform proposals have three key aims:
  • Introducing greater certainty and transparency into the law relating to rights to light, making disputes simpler, easier and quicker to resolve;
  • Ensuring that rights to light do not unnecessarily constrain development; and
  • Retaining some protection of rights to light as a valuable and protected amenity.
Background

This latest Consultation Paper follows the Law Commission’s report in June 2011 on Easements, Covenants and Profits à Prendre, which contained various recommendations for the reform of property law. The Law Commission felt that rights of light deserve special attention given that they “appear to have a disproportionately negative impact upon the potential for the development of land”.

This concern largely stems from the decision in HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch). In that case, the court ordered the partial demolition of a building even though the neighbour had delayed in seeking an injunction. Many considered that damages might have been an adequate remedy. The Law Commission suggests that “the case has had a detrimental effect on the ability of rights to light disputes to be resolved swiftly and amicably.” In particular, there is uncertainty as to the circumstances in which the court will and will not grant an injunction. This offers property owners the opportunity to threaten to prevent, or even demolish, a development unless a significant payment can be negotiated for the release of the right.

The Law Commission’s report therefore seeks to investigate whether the current law under which rights to light are acquired, enforced and extinguished provides an appropriate balance between the need for development of land and the interests of neighbouring property owners.

Key provisional proposals for change

The key provisional proposals made in the Consultation Paper are that:
  • Rights to light should, for the future, no longer be capable of acquisition by prescription over a long period;
  • A new test should be introduced to clarify when damages may be awarded by the court instead of an injunction to prevent or demolish a redevelopment, with particular emphasis on the question of whether the grant of an injunction will be oppressive;
  • A notice procedure should be implemented to require advance confirmation from neighbouring property owners as to whether they intend to apply to court for an injunction, with the requirement for action to be taken within a certain period; and
  • The Lands Chamber of the Upper Tribunal should be given jurisdiction to extinguish rights of light that are obsolete or have no practical benefit (with payment of compensation in appropriate cases), as it has with restrictive covenants.
Other areas of consultation

The Consultation Paper also invites views on:
  • The current test for the point at which an obstruction of light becomes actionable in the law of nuisance, i.e. when a claim may be issued;
  • The basis on which damages should be calculated and whether this should include the option of the “negotiation basis”, which takes account of the profits which the proposed development will make; and
  • Whether the current law relating to abandonment of rights to light needs reform.
The Law Commission is keen to receive feedback on their provisional proposals and the other issues raised within the Consultation Paper. The deadline is 16 May 2013.



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