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Rights to Light - The Law Commission’s consultation and proposals 2013

On 18 February 2013 the Law Commission published a consultation paper on Rights to Light. According to its Introduction and Executive Summary, the consultation is concerned with rights to light only in the sense of the easement that entitles a landowner to receive (usually through a window) enough of the natural light passing over a neighbour’s land to enable the ordinary use of the building, and therefore operates negatively to restrict the use which the neighbour is able to make of their land. Easements of light may be granted expressly but more often arise by implication or prescription, the latter generally on the basis of 20 years’ continuous enjoyment prior to the commencement of a suit or action asserting the right to light.

The 2013 consultation is expressly intended to build upon the Law Commission’s 2011 Report on Easements etc and therefore assumes, despite the absence of any such indication to date from the Government, that the recommendations contained in that Report will be implemented. Those recommendations included the abolition of the three current forms of prescription as a method of acquiring easements and their replacement with a new statutory method which, contrary to the Law Commission’s original proposals, would not require the suggested adverse-possession-style system of notice and registration, but rather would simply provide for 20 years’ qualifying user automatically to create an easement which binds the then owner of the servient tenement. The current consultation therefore explores whether this proposed abolition of the old three-pronged doctrine of prescription and replacement with a simplified statutory scheme should also apply in the case of rights to light, or whether light requires different treatment from other easements.

Reasons for the consultation

This consultation process has been widely reported as a threat to abolish rights to light for millions of homeowners in favour of easing the path of greedy corporate developers. Whilst the general desire to remove anything which might stand in the way of an economic kick-start through the construction industry has been increasingly apparent in a number of contexts recently, it does seem that the specific request from the Department for Communities and Local Government for a Law Commission investigation into rights of light was prompted by the decision of His Honour Judge Langan QC sitting in the Leeds District Registry of the Chancery Division in HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch).

That case, which concerned two commercial buildings in Leeds City Centre, applied the historic Shelfer test (Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287) to determine whether an injunction or damages would be the appropriate remedy for an admitted interference with the dominant owner’s right to light. Heaney reiterated the principle that the owner of the dominant tenement is prima facie entitled to injunctive relief against an infringement of his right to light and the judicial discretion to award damages in lieu should not be exercised unless special circumstances exist which satisfy all four of the criteria set out in Shelfer  as a “good working rule” by A.L. Smith LJ. HHJ Langan concluded that a mandatory injunction requiring partial demolition of the new building was appropriate, notwithstanding the efforts the developer had made to negotiate and the length of time the owner of the dominant tenement had waited before seeking relief (even then only by way of a counterclaim to the developer’s claim for declarations), and despite the fact that the development had already been completed.

Criticism of the Heaney decision by entities such as the Association of Light Practitioners alleges that it has produced a situation in which a developer could be penalised by an injunction requiring the removal of completed works even where it has acted entirely properly in seeking proactively to negotiate a resolution of any potential light-related claims at an early stage, whereas the owner of neighbouring affected property is best served to ignore those overtures and wait whilst the pressure on the developer mounts and the potential pay-off increases. The suggestion has also been strongly made that it has become more difficult to secure funding for development projects as a result of Heaney.

A clear tension exists between the need to protect those landowners for whom the amount of light received is of great importance and the desire to limit oppressive behaviour by those who see the infringement of their easement by a proposed development simply or mainly as a chance to extract the maximum possible amount of money from the developer. There is also an accepted public interest in using land effectively and efficiently through proper development. The Law Commission reminded itself and the consultees of these differing interests in defining the scope of this project, and suggested that the proper balance between those benefitting from and burdened by rights to light needed to be reappraised in a 21st Century context.

The proposed changes

The consultation paper sets out four categories of proposals for change to the present law on rights to light:

  1. The complete abolition of prescription as a means of acquiring rights to light in future, whether by any of the three current methods or by the proposed new statutory method set out in the 2011 Easements Report.
  2. The creation of a statutory regime triggered by a developer serving a notice of proposed obstruction of light which would require the owner of the dominant tenement (a) within 4 months to serve a counter-notice stating whether he objects and intends to seek an injunction and then (b) if so to seek an injunction within the next 4 months. If the affected owner fails to serve his counter-notice and issue his proceedings in time he would lose the right to claim injunctive relief provided the developer has not in fact already infringed his right during that period.
  3. Statutory clarification as to when damages should be awarded for infringement of rights to light rather than injunctions being granted requiring that construction cease or demolition occur, based to a significant extent upon proportionality.
  4. An extension of the powers of the Lands Chamber of the Upper Tribunal to enable it to extinguish rights to light which have become obsolete or ceased to have practical value, exercisable along similar lines to its current power in respect of restrictive covenants under s84 Law of Property Act 1925.

In formulating those proposals the Law Commission expressed three key objectives:

  1. Greater certainty and transparency in the law relating to rights of light so that disputes should be easier and quicker to resolve.
  2. Removing any unnecessary constraint on development, which it saw as desirable for the success of town and city centres and to the economy in general.
  3. The continued protection of the amenity value of rights to light.

Interaction with planning and privacy laws

The Law Commission, whilst apparently examining the broader context in which rights to light fall to be balanced against desirable development, does not attempt to address the adequacy of the treatment of light by the planning regime, nor does it analyse the impact of the Localism Act. There is even some prospect that the intended shift of emphasis away from courts determining these disputes between developer and disgruntled neighbour according to the established principles of rights to light may lead to the increased use of local planning policy to challenge and limit development and thus to significant differences in the level of protection of light in different parts of the country.

Equally, there is little consideration of how recent advances in the legal approach to the concept of privacy and the ability of individuals to protect it and their Convention Rights through the Courts might come into play, particularly where the neighbouring land affected by a proposed development is residential and/or a public body is involved in the development. 

It is noteworthy that both the Heaney case which gave rise to this consultation and the majority of the language of the paper itself concern commercial development in town centres. It may well be that in order to protect genuine amenity whilst facilitating appropriate development the ultimate outcome has to involve a recognition that one system cannot fit all. Those potential differences, perhaps between types of building or occupier or parts of the country may be no bad thing, but it is hard to see how they can be squared with the stated objective of greater certainty and transparency.

The future for rights of light

First, it is important to bear in mind that even if these proposals are left unchanged and become law, they are most unlikely to affect properties built at least 20 years ago, where rights to light will probably be said to have accrued under the proposed scheme in the Easements Report.

However, it would be a good idea for all property owners to ensure that they are ready with a portfolio of evidence as to the extent of the light which their property has enjoyed for at least the past 20 years including photographs, plans and possibly even statutory declarations from occupiers and others such as long-term employees who might no longer be available if and when such evidence is needed. Easements are not amongst the overriding rights for which the 10 year sunset clause under s117 of the Land Registration Act 2002 is about to come to an end, but those who see a real risk of neighbouring development may still wish to consider the extra protection that registration would give them. Where a good relationship exists with the current neighbours, it may even be appropriate to enter into some form of express easements and/or restrictive covenants relating to light and development so as to protect the position, possibly even on a mutual basis.

All is not necessarily gloomy for the homeowner in any event. If under these proposals a developer seeks to put him to an election about potential injunctive relief it will be obliged to provide formal notice of obstruction and then wait for 8 months before doing anything which infringes his rights to light. This level of direct information and period of abeyance is arguably significantly more than is required under planning law at present. Furthermore, if he has a right to light and seeks an injunction to protect it within the time limits, he may well still obtain one; there will merely be an emphasis on proportionality rather than the current virtual presumption in his favour.

Similarly, whilst the consultation paper and most commentary upon it to date have focussed upon the cowering small householder being loomed over by the huge evil developer, it is often the case that an individual wishes to carry out work to his home and is prevented from doing so by the threat of his neighbour to injunct based upon an alleged potential infringement of rights to light. The proposed system would potentially speed and simplify the resolution of that situation, at least by calling the bluff of the opportunist at an early stage.

Finally, although less press coverage has been devoted to those parts of the consultation paper which seek information and evidence rather than setting out proposals, it is interesting to see what a wide range of input has been specifically requested in the text: from empirical evidence of failure to secure development funding due to the risk of rights to light claims, through the principles upon which it is determined whether an obstruction of light is sufficiently severe to be actionable,  to the practicability of limiting the proposed new notice of obstruction procedure to commercial premises, presumably leaving some form of broader right and remedy available for residential occupiers. The Law Commission changed direction to a significant extent on the subject of prescription generally between its 2008 consultation and the 2011 Easements Report on the basis of the views expressed. It is therefore reasonable to conclude that there is scope for movement in relation to rights of light too, but any further contributions to either side of the debate will have to be made quickly – the consultation period ends on 16 May 2013.