Let there be light...or not...

The Law Commission has opened a consultation on its provisional proposals to reform the right to light (which is commonly claimed by property owners concerned to protect their house from developers). The consultation proposals can be found here:

http://lawcommission.justice.gov.uk/news/rights-to-light-news.htm

In most cases property owners will acquire the right to light through prescription i.e. if they have enjoyed the right for an uninterrupted period of at least 20 years. The right to light is difficult to deduce from title deeds or Land Registry documents. Other common law juridictions (e.g. New Zealand) have abolished the right to light through prescription. The right is controversial because it presents a conflict between the right to light and the developer's right to build on their land. The conflict was illustrated in the case of HKRUK II Ltd v Marcus Alexander Heaney (Heaney) 2010. In this case, Heaney's right to light was blocked by the developer. The court awarded a mandatory injunction so that the developer was forced to take down the extra floors of the development that interferred with Heaney's right to light. The court was influenced by the fact that the developer knew that they were committing an actionable breach of Heaney's right to light. Since then, developers have naturally been cautious of interferring with rights to light. The consultation has proposed the following:

• It should no longer be possible to acquire rights to light by long use (known as “prescription”).
• The introduction of a new statutory test to clarify the current law on when courts may order a person to pay damages instead of ordering that person to demolish or stop constructing a building that interferes with a right to light.
• The introduction of 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 (ordering a neighbouring landowner not to build in a way that infringes their right to light), with the aim of introducing greater certainty into rights to light disputes.
• The Lands Chamber of the Upper Tribunal should be able to extinguish rights to light that are obsolete or have no practical benefit, with payment of compensation in appropriate cases, as it can do under the present law in respect of restrictive covenants.

This should result in greater certainty for developers- particularly the abolition of prescription and the introduction of a statutory notice procedure prior to exercising the right. Developers will have to wait longer though to see the ink dry and the proposals set out in law. Only then will developers be able to get on with development without having to look over their shoulder constantly. Right now, the above is a shining light that will bring the unfortunate developer in from the dark.

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