Rights to light 'being exploited', Law Commission says

The Law Commission said today that existing laws on rights to light were being “exploited” and having a “disproportionately negative” impact on urban development.

The commission said some landowners “were not interested in protecting their entitlement to light” but only in obtaining “significant payment” by threatening to pursue injunctions which could prevent or lead to demolition of new buildings.

Launching a consultation, the commission said that, compared to other easements, rights to light raised “unique” issues and appeared to have a “disproportionately negative impact upon the potential for the development of land”.

The commission also said that, following publication of its report on the general law of easements, the Department for Communities and Local Government “expressed an interest” in the commission investigating rights to light.

The commission said the department’s interest “stems largely” from the High Court ruling in 2010 in the Heaney case, which had introduced “more uncertainty” into the law governing the granting of injunctions.

“Rights to light are important,” Law Commissoner Professor Elizabeth Cooke said.

“These rights do not just add to a property’s value, they also enhance the amenity of our homes and businesses.

“But there is also a public interest in the development of the modern, high quality residential, office and commercial development that we need in our town and city centres.”

Warren Gordon (pictured), head of real estate know-how at Olswang, said rights of light were “always an issue” when new buildings were going up in urban areas like the City of London and the current laws caused confusion.

“Some people may feel that in commercial property cases that damages would be the starting point, rather than an injunction,” he said.

“This interpretation arises from a misunderstanding of the basic law. The starting point is an injunction.”

Gordon said a further issue arose over the rights of tenants to light.

“If tenants of a building have been there for long enough, then they would also have rights. It becomes difficult when there are hundreds of tenants in a large block of flats or an office.”

One solution that the commission is considering is simplifying the law by introducing a statutory test to determine when damages can be paid, rather halting a development or ordering demolition through an injunction.

Another would be repealing the Prescription Act of 1832 and abolishing prescription at common law and the doctrine of ‘lost modern grant’. These would be replaced by a single statutory test for prescription based on whether the rights of light had been enjoyed continuously for 20 years.

The commission also suggested that there should be a statutory notice procedure, requiring landowners to tell developers within a specific time if they sought an injunction. The consultation ends on 16 May.