Rights of Light: The Law Commission Consultation

Andrew Johnson
The Law Commission launched its consultation paper on Rights to Light on 18 February 2013. The outcome may affect developers’ decisions to develop land and buildings as my article explains.

What is a right to light?

A right to light is an easement entitling the owner of the building on one piece of land to receive the flow of daylight across a neighbouring property.

A right to light cannot be enjoyed by a piece of land that is not built on.  This is a right to receive light through specific apertures (usually windows).

Rights to light are valuable to landowners and can protect the amenity of properties. But those who benefit from rights to light can exercise control over what can be done on neighbouring land.

Recent case

HKRUK II (CHC) Ltd – v – HEANEY [2010] identified that developers who start works prior to the resolution of actionable interference with an adjacent building owner’s right to light, run a significant risk of action being taken against them and injunctions being sought by the injured party.

This could:

  • Significantly increase costs
  • Enforce removal of the offending parts of buildings.

The Court in this case determined that damages were not appropriate and granted an injunction to remove the offending areas of the building. This could cost the developer between £1m and £2m to remedy the interference on this development.

Law Commission response

The Law Commission has acknowledged that rights to light can be seen as a valuable asset and has responded to suggestions that the current law and practice around this issue has become complicated, inefficient and negatively affects development. There is no proposal to extinguish the rights of light, but to review how the current law can be made more efficient.

The report has considered

  • The law relating to the entire life cycle of the right to light, private law, easements etc.
  • An appropriate balance between the interests of landowners, Planning and rights to light
  • Whether the Courts’ powers are proportionate, sufficient and reasonable
  • Whether rights of light should be acquired through long use – prescription.

The Law Commission has sought views on these proposals:

A new statutory test to ascertain the clarity of the present law on when the courts may award damages instead of awarding an injunction. Injunctions could lead to:

  • Halting of the building works
  • Payment of compensation
  • Demolition the offending parts of the development.

A statutory notice procedure, which will mean those that benefit from the right of light make it clear from the outset if they intend to apply to the courts for an injunction. This is to prompt adjacent affected property owners to act if they want to:

  • Potentially stop construction of the offending parts of the building
  • Take action in a timely manner, otherwise they may lose their right to obtain injunctions, damages or demolition.

Grant new powers for the  Lands Chamber of the Upper Tribunal, to extinguish rights of light that have no practical benefit and are obsolete, with the payment of compensation where appropriate (this could be relevant where there are openings which have been bricked up or a residential property now used for storage.

Abolition of rights to light if acquired through long use (also known as ‘by prescription’).

What does this mean for developers?

A rights of light claim against a developer will:

  • Add costs to the development
  • Impact on the developer’s ability to secure funding
  • Delay the development
  • Potentially reduce the value of the development.

Developers’ interests will be affected by the outcome of the Law Commission’s inquiry. Delays, costs and subsequent inconvenience can be minimised by resolving issues around rights of light, party walls, access to neighbouring land etc early in the programme.