For some time now developers – and the professionals advising them – have found increasing difficulty in dealing with rights of light. An owner of a building adjoining a potential development site can acquire rights of light over it; merely by doing nothing; and those rights will be protected by the courts, to the extent of an injunction requiring work to stop or a building to be demolished or altered. As a result, an adjoining owner can extract a substantial amount of value from the scheme simply by being there.
As the Association of Light Practitioners observed in their evidence to the Law Commission:
“A developer can act entirely properly and proactively, looking to negotiate a resolution, whilst it is actually in the interest of a neighbour to sit back and not engage, to increase the sum they can demand”.
Following some years of lobbying, the Law Commission has taken the matter in hand and their report, published last week, provides some encouragement. Broadly, their proposals are fourfold:-
- In future, it should no longer be possible to acquire rights to light by prescription (long enjoyment).
- A new statutory test should be introduced to clarify when damages may be awarded instead of an injunction.
- A new statutory notice procedure should be introduced, requiring those with the benefit of rights of light to state whether or not they intend to apply to the court for an injunction, so that a developer knows where he stands.
- The Lands Chamber of the Upper Tribunal (the old Lands Tribunal) should be able to extinguish rights to light that are obsolete or have no practical benefit, with payment of compensation where appropriate – as it can do with restrictive covenants.
As ever, there is a consultation procedure, which runs till May. I would urge you all, as ever, to read the paper – link below – or at least the executive summary, and make your representations. Of course, proposals are one thing, actual legislation is another but it would be nice to think that something might happen, sometime soon.
One final thought: I am looking out of my window on a greyish February morning. The light in my office is on. It is on every working day, winter and summer, not just in this office, but, so far as I can recall, in every office that I have visited. Given the protections offered by the laws on planning and building control, why, in this century, do we need rights of light at all? Answers on a postcard, please, to the Law Commission.
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