The right to light – the Law Commission speaks

The Law Commission has published its long-awaited review of rights to light legislation after several years of consultation.

By way of background, the legal system in England and Wales does not give people or homes a general right to natural light but the law does recognise the value of natural light through private property rights. 

The difficulty with the present law relating to rights to light is that it is unclear, has been developed over time in a haphazard fashion and has resulted in a clear conflict between those seeking to develop land and landowners affected by such development.

Industry experts, interested groups including surveyors and lawyers, together with the construction industry have been involved in detailed consultation over several years which has culminated in the Law Commission publishing its detailed and comprehensive review.

Simone Ritchie

It is anticipated that regardless of the content, the review will provide some much needed clarity on the rather ‘unique’ area of English and Welsh law. In an island with finite resources, space and a desperate shortage of housing, it is hoped that this review will facilitate development but not at the cost of private property rights.

The cases of HKRUK II (CHC) Ltd v Heaney [2010] and Coventry v Lawrence [2014] led to debate amongst industry experts regarding injunctive relief versus damages for compensation and brought into focus a new angle; that of public interest. Those cases seem to have influenced the authors of this report and this is translated into the content.

With this in mind, although a number of recommendations were made, it is clear that the overarching ethos behind the recommendations was to try and clarify the legal relationships between different parties, simplify the law, and make negotiations more efficient. If this is achieved, then developers will greet it with a welcome sigh of relief. With this in mind, there are two recommendations which stand out.

Of particular interest is the recommendation that there be a new statutory test to clarify when the court may award damages to a landowner as compensation for an infringement of a right of light, or an injunction to prevent development in order to protect a right of light. There is also the recommendation that the public interest is taken into account when deciding whether to award an injunction or damages, as well as a new test of proportionality. Now for the first time, the courts will have to consider the public benefit of any development versus the protection of a private right of light.

This is in conjunction with the recommendation that there be a notice procedure which would force a landowner to apply to court for an injunction within eight months of being served with a notice, or acknowledge that they will accept damages only. This will be particularly welcomed by developers who raised concerns in the consultation process that without a time limit to establish whether a landowner will apply for an injunction, the uncertainty would often constrain development and some landowners used it as an opportunity to threaten an application for an injunction in order to improve their bargaining position in respect of a cash settlement.

Hopefully such uncertainty will be significantly reduced if this recommendation is implemented and the notice procedure will now make negotiation more effective and keep costs down for all concerned.

Simone Ritchie is a senior associate at Steele Raymond

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