Duncan Lewis

Legal Aid

Lawyers London

“Rights to light” becoming an impediment to urban development says law commission

Date: (21 February 2013)    |    

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Urban development was having a disproportionately negative impact due to the exploitation of existing laws on rights to light the Law Commission has said.
For more than 400 years rights to light have been gained by any householders who have enjoyed unobstructed sunlight through their windows for decades.
A “legal magic” called prescription means the right is gained automatically, and without homeowners having to do anything, once sunlight has been streaming through a window or conservatory for 20 years.
It enables householders to stop their neighbours building a wall or a skyscraper, which would block their sunlight.
The commission said that some landowners were keener to obtain significant payments by threatening to pursue injunctions which could prevent or lead to demolition of a new building. They were not actually interested in protecting their rights to entitlement to light.
Compared to other easements, rights to light raised unique issues and appeared to have a disproportionately negative impact upon the potential for the development of land.
The commission also said that, following publication of its report on the general law of easements, the Department for Communities and Local Government “expressed an interest” in the commission investigating rights to light.
The commission said the department’s interest gained strength due to the High Court ruling in 2010 in the Heaney case, which had introduced “more uncertainty” into the law governing the granting of injunctions.
Law Commissioner Professor Elizabeth Cooke said that rights to light were important in as much as that it not just add value to the property but also enhances the amenity homes and businesses.
At the same time it was in the public interest to have development of the modern high quality residential office and commercial development that was needed in town and city centres she added.
A property lawyer and expert in real estate know how has said that rights of light were always an issue when new building were going up in urban areas like the City of London and the current laws caused confusion.
When it came to commercial property cases people start feeling that damages were the starting point rather than an injunction he said. The basic law has not been clear and it should be saying that the starting point is an injunction and not damages.
The lawyer added that apart from this there were the rights of tenants to light especially when tenants of a building who have been residing for long enough then they would have rights and it becomes difficult when there are hundreds of tenants in a large block of flats or an office.
The commission is considering to simplify the law by introducing a statutory test to determine when damages can be paid, rather halting a development or ordering demolition through an injunction.
Another would be repealing the Prescription Act of 1832 and abolishing prescription at common law and the doctrine of ‘lost modern grant’. These would be replaced by a single statutory test for prescription based on whether the rights of light had been enjoyed continuously for 20 years.
The commission also suggested that there should be a statutory notice procedure, requiring landowners to tell developers within a specific time if they sought an injunction. The consultation is to end on 26 May.