Light at the end of the tunnel

On 18 February 2013 the Law Commission published its consultation on rights to light.

Background

This consultation follows on from the High Court decision in the 2010 case of HKRUK II (CHC) Ltd v Heaney in which the court ordered an injunction requiring partial demolition of a building that obstructed a neighbour’s right to light, when many expected the court to follow previous decisions and award payment of damages instead. As a result, it has become more difficult to resolve rights to light disputes swiftly and amicably.

A letter from the Association of Light Practitioners to the Law Commission on 7 December 2012 stated:

“A developer can act entirely properly and proactively, looking to negotiate a resolution, whilst it is actually in the interest of a neighbour to sit back and not engage, to increase the sum they can demand”.

Consultation aims and objectives

The main aim is to investigate whether the law on rights to light provides the right balance between landlowners’ interests and the need to help the efficient use of land through development. The three main objectives are:-

1. Introduce greater certainty and transparency into the law, making disputes simpler and quicker to resolve
2. Ensure that rights to light do not act as an unnecessary constraint on development
3. Make sure that the important amenity value of rights to light remains protected under the law

Proposals

The consultation paper makes four provisional proposals:-

1. It should no longer be possible to acquire rights to light by prescription
2. Introduce a new statutory test to clarify the current law on when courts may order a person to pay damages instead of granting an injunction
3. Introduce 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, with the aim of introducing greater certainty into rights to light disputes
4. The Lands Chamber of the Upper Tribunal should be able to extinguish rights to light that are obsolete or have no practical benefit. Compensation would be payable in appropriate cases, as under the present law in respect of restrictive covenants

The consultation closes on 16 May 2013.

For more information please contact Jeff Elphee, Partner in IBB’s Commercial Real Estate team on jeff.elphee@ibblaw.co.uk or 01895 207950.

IBB has one of the largest real estate groups in West London and the South East, with expertise in commercial development, residential development, real estate finance, real estate investment and management, construction and real estate dispute resolution. Contact a member of the team by visiting the relevant service page, call us on 08456 381381 or email enquiries@ibblaw.co.uk.