Law Commission Report On Rights To Light

The Law Commission (the Commission) has published its much anticipated report following its 2013 consultation on rights to light. The report is considered and detailed and makes a number of key recommendations that will impact on this fundamental issue of law for developers, adjoining owners, surveyors and solicitors.

Rights to light has accelerated to the top of developers' key concerns when considering a potential development. In light of Regan v. Paul [2006] Civ 1391 and HKRUK II (CHC) Limited v. Heaney EWHC 2245 (Ch), rights to light suddenly evolved from something that could be dealt with by exchange of a reasonable sum of money to something that was preventing development from occurring, due either to the real risk of injunction or else the threat of damages based on a percentage of development profit arising from the offending part of the scheme (based on Tamares (Vincent Square) Limited v. Fairpoint Properties (Vincent Square) Limited [2007] EWHC 212 (Ch)). Factor into the mix a deep economic recession impacting on the development industry and the scene was set for a clamour for reform to prevent an easement of light holding up a development scheme, especially in heavily developed urban areas.

The Commission undertook a wide consultation exercise on proposals that it had drawn up and a considerable number of responses were received, including from the Property Litigation Association (the detailed submission being principally prepared by the author of this bulletin on behalf of the PLA). The report published on 4 December 2014 makes recommendations based on the consultation exercise.

In summary, the Commission is recommending:

The continuation of the acquisition of rights to light by prescription. The Commission originally proposed prospective abolition of prescriptive rights to light. It has now stepped back from this. Instead, reform of prescription will be proposed in order to streamline the unsatisfactory three methods of acquiring prescriptive rights. Repealing the Rights of Light Act 1959. This is where the "Light Obstruction Notice" process has its current home. The Commission instead proposes a "Certificate of Light Interruption". This involves a registration at the Local Land Charges Register of a Certificate of Light Interruption. Upon registration the light is automatically interrupted. The advantages of this process are that there is no need to serve notice on adjoining freeholders and tenants and that the interruption is...