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Rights to Light - The Law Commission's final report

In recent years there has developed a real sense of confusion and concern amongst landowners, developers and indeed their lawyers as to whether the current law on rights to light is capable of balancing adequately the conflicting interests of affected parties. The Law Commission was duly prompted to embark upon a lengthy review of the subject following on from its 2011 Report proposing reform of the law on Easements in general. 

In May 2013, we analysed the resultant Consultation Paper and Proposals on Rights to Light. With little by way of fanfare, on 4 December 2014 the Final Report was published, and there is a chance, albeit a slim one, that the process of reform might now actually begin.

The Government is apparently due to respond imminently to the recommendations in the 2011 Report on Easements, although it would surprise no one if this were now delayed further in order to include a specific response to the new Report on Rights to Light.

The Law Commission has been at pains throughout to stress that it is predominantly dealing only with the future creation of private law entitlements to receive sufficient natural light passing over neighbouring land to enable ordinary use of a building. “Put another way”, states the 2014 Report, it is concerned with “a right to prevent a neighbour from obstructing the light to a window”. The proposed reforms are not intended to have any impact on planning considerations, nor should they be seen as suggesting the removal of rights to light from those who have already acquired them, subject to the question of abandonment addressed below. 

However, there appears to have been sufficient opposition voiced during the consultation process that the Law Commission has abandoned the keystone of its proposed new system: the abolition of prescription for rights to light. It is interesting to note that a substantial element of the opposition was apparently based upon rejection of the premise that rights to light should be treated differently from other easements, and a sense that it was preferable to retain a form of prescription in respect of rights to light than to remove it and leave the public-law planning system unable to cope with the consequent flood of arguments along similar lines.

The original key objectives of the Law Commission in formulating its proposals were said to be:

  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 was seen 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.

At the time of the Consultation Paper in 2013 the Law Commission’s proposals could be summarised in four categories:

  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 rigid 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 four months to serve a counter- notice stating whether he objected and intended to seek an injunction and then (b) if so to seek an injunction within the next four months or else lose the right to claim injunctive relief provided the developer had 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, 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.

The Final Report abandons the suggestion that it should no longer be possible to obtain rights to light by prescription. Instead it concludes that rights to light should be included within the proposed new statutory scheme for acquisition of easements set out in its draft Easements Bill appended to the 2011 Report. That scheme is intended to replace the three current forms of prescription, but would not be able to come into effect until both the Prescription Act 1832 and, in view of the 2014 Report, also the Rights of Light Act 1959 have been repealed. The 2014 Report appends clauses to be inserted into the 2011 draft Bill so as to bring rights to light in line with other easements if the scheme is to be implemented.

The 2014 Report also addresses the question of how much light is sufficient to satisfy an occupier’s right to light. Having restated the law as expressed in Colls v Home and Colonial Stores Ltd (“… what is required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of mankind ”) and in Allen v Greenwood (“... the light required for the beneficial use of the building for any ordinary purpose for which it is adapted ”), the Law Commission explores the use of the Waldram method and the 50:50 rule to determine whether or not that threshold has been reached and toys with the idea of a new standardised objective test, before concluding that it should leave well alone and proposing no change.

Perhaps one of the most important practical aspects of the proposals contained in the 2014 Report is the clarification as to damages and their use in place of injunctive relief. Since the publication of the Consultation Paper, the issue had been considered by the Supreme Court in Coventry v Lawrence [2014] UKSC 13, and significant changes had resulted, notably in respect of the need to take into account questions of public interest when weighing up the arguments for and against injunctions in this context.

The Law Commission has now gone further by proposing in the form of a draft Bill that a court should not grant an injunction to restrain infringement of a right to light where it would be a disproportionate means of protecting the owner’s right in all the circumstances. The 2014 Report lists a series of factors which would be taken into account in determining proportionality for this purpose. They include:

  1. The claimant’s interest in the dominant land.
  2. The loss of amenity attributable to the infringement (taking into account the extent to which artificial light is relied upon).
  3. Whether damages would be adequate compensation.
  4. The conduct of the claimant.
  5. Whether the claimant delayed unreasonably in claiming an injunction.
  6. The conduct of the defendant.
  7. The impact of an injunction on the defendant.
  8. The public interest.

The same draft Bill seeks to codify the Notice of Proposed Obstruction procedure mooted in the Consultation Paper, whereby a developer could start the clock running against a neighbour who might wish to protect his alleged right to light. The 2014 Report goes some way to setting out the detail of how this procedure should work in practice, and proposes that the Secretary of State should address such matters through regulations to similar effect. This version of the NPO process has greater flexibility than was previously proposed in 2013, but the essence is still that the owner of the dominant tenement must respond to a notice and issue proceedings for injunctive relief within a short timescale, or else lose all chance of an injunction and be left only with the prospect of a claim for damages.

On the question of quantum of damages, though, the 2014 Report is less than revolutionary. Whilst recognising that the present state of the law (in particular in respect of equitable damages for infringement of rights to light) is far from ideal, the Law Commission concludes that it does not have any better ideas nor any sense of a consensus for reform, and that it lacks the expertise properly to make recommendations in this regard. It has passed the “damages problem” firmly back to the government for further exploration in due course.

That leaves the thorny issue of whether and, if so, how rights to light should be extinguished. The 2014 Report makes two proposals: first, a new idea that if it can be proved that a right to light has not been exercised for a continuous period of five years then there should be a rebuttable presumption that it has been abandoned; and second, that the Lands Chamber of the Upper Tribunal should be given a jurisdiction akin to s84 Law of Property Act 1925 enabling it to extinguish rights to light which have become obsolete or ceased to have practical value even where those rights are already in existence at the date of enactment of the proposed reforms. This seems to have met with general approval in spite of the obvious concerns as to how either proposal might be applied in practice.

Overall, the 2014 Report is an interesting adjunct to the meatier Report on Easements from 2011. If implemented, and that must remain a major “if”, the proposed reforms would almost certainly achieve the Law Commission’s aims of bringing disputes to a head more quickly and preventing local landowners from impeding development by the threat of potential proceedings and injunctions. However, there is far less likelihood that dispute resolution will ultimately prove to have been made easier or that, in the absence of clear guidance as to sufficiency of light and damages, the amenity value of the right will be effectively protected under the proposed new regime.