“An undramatic but significant change in the law”. That’s how the Law Commission’s long-awaited report into the reform of the law on rights to light, published on 4 December 2014, describes its recommendations.
The report follows a 3 month consultation period that ended in May 2013 and which received over 130 responses including coordinated responses from groups such as the RICS, the Westminster Property Association, the Property Litigation Association, the British Property Foundation, the National Trust and the Law Society, developers such as British Land, Derwent, Land Securities and TfL and numerous professional advisers. According to the Commission the proposals it recommends are designed to update the law and to maintain an appropriate balance between development in the public interest and the protection of the amenity of homes and workplaces.
The full report runs to over 200 pages; a reflection of how important and complex the issue is. The key recommendations (as set out in the report’s executive summary) are as follows:
- a statutory notice procedure which would permit a landowner to require his neighbour(s) to tell him within a specified time if they intend to seek an injunction to protect their right to light, or to lose the potential for that remedy to be granted – the proposal is that the neighbour must issue and serve proceedings for an injunction within 8 months of the notice;
- the introduction of a statutory test, based on proportionality, to clarify when courts may order damages to be paid rather than halting development or ordering demolition. The Commission has taken on board the Supreme Court’s decision in the Coventry v Lawrence decision from 2014 and highlighted that, prior to that decision, the law had shifted too far in favour of those benefitting from rights to light who were seeking to hold developers to ransom;
- an updated version of the procedure that allows landowners to prevent their neighbours from acquiring rights to light by prescription, including the repeal of the Rights of Light Act 1959;
- amendment of the law governing where an unused right to light is treated as abandoned; and
- a power for the Lands Chamber of the Upper Tribunal to discharge or modify obsolete or unused rights to light.
Of particular interest is what is missing from the report. Namely, no recommendation that the power to acquire rights to light by prescription should be abolished. This was one of the proposals put forward by the Commission at the consultation stage and its removal might be considered as somewhat of a surprise given that many other jurisdictions took this step decades ago. This is a direct result of the responses received to the proposal to abolish this method of acquisition.The Commission has instead focused on making prescription a more straightforward process and has referred back to its 2011 report, ‘Making Land Work: Easements, Covenants and Profits à Prendre’ which recommended replacing the three different methods of acquiring rights by prescription with a single approach. (The Lord Chancellor reported to Parliament on the 2011 report in May 2014 and it was understood that the Government would be responding by the end of the year).
It is of course up to Government as to whether or not it decides to adopt the recommendations made by the latest report, but the Commission has made their job easier by including a draft bill. An interim response from the Department for Communities and Local Government is anticipated within 6 months and a final response within the year, in line with the Law Commission’s Protocol with the Lord Chancellor. Given that we are still waiting for the Government’s response to ‘Making Land Work’ that may be a little too hopeful.
