2015
Right of Light Common Law Reforms The long awaited final report from the Law Commission, ‘Rights of Light’ (Law Com No 356), was published in late 2014, with a view to examining the appropriateness of the current law, and the contentious disparity between the rights of the injured property owner and property developers across the country. The consultation ran from February to May of last year, and scrutinised the methods of acquiring and the enforcement of the valuable commodity of light. Ensuring that natural light will continue to be enjoyed increases the value and utility of a property, and to protect this, the law provides a right to property owners to enjoy light through defined apertures in their property. Louise Jones LLB (Hons) DipCII, Development Executive at Thomas Carroll Legal Indemnities, summarises the main focus and findings of the reforms in our latest TC Brief: It is the protection of this right from infringement that has been the focus of much case law over the last few years, and the recent report sought to clarify the legal position on how those rights should be applied in a practical legal setting. At present, the usual method of obtaining rights of light is by prescription – that
being an uninterrupted enjoyment of light for at least a 20 year period – which means that many landowners may unknowingly have this private right that they can exercise through the courts if they wish. For developers, this causes significant difficulties, as although the development may have acquired planning permission, any interference with neighbouring properties access to light remain enforceable, and could have severe financial consequences for any project undertaken. Amongst a raft of recommendations, and in addition to the increased powers for the Lands Chamber to modify or discharge unused or obsolete Rights of Light, there were two main recommendations which will affect the facilitation of development of land; Proportionality Test A replacement of the Shelfer Test, the report proposes a more balanced approach to the appropriateness of imposing an injunction as a remedy to injury; by reinforcing and ratifying the Supreme Court judgement in Lawrence v Coventry (2014), the courts should only injunct if deemed a proportionate measure. To enable the courts to apply a consistent approach to all Right of Light cases, a fixed set of criteria has been set out to assist the courts in reaching a fair decision, looking at various factors
including the level of public interest and availability of artificial light. However, injunction as a form of remedy will remain the primary method of recourse for the courts, particularly where the injury relates to residential property; it is only when injunction is disproportionate as per the criteria that the injunction risk is removed. Notice of Proposed Obstruction A new addition to Right of Light legislation, a Notice of Proposed Obstruction (NPO) will allow a developer to make neighbouring properties aware that the proposed development may obstruct the light to their property. This action will provide the property owner with an approximate period of 8 months in which to commence injunction proceedings; should they fail to do so, their right to injuct would fall away, but the remedy of damages would remain. It is not likely that a developer would issue such a Notice as a standard – to do so would be to alert unknowing neighbouring property owners to the fact that they have enforceable rights, which of course, would be a detrimental move to make, particularly if an insurance solution is sought to minimise the financial risk.
The NPO will become a useful tool in preventing the abuse of the threat of injunction. Previously used as a way in which to increase the amount of damages awarded during negotiation stage, developers can now limit these effects; by utilising the Proportionality Test and the NPO, fair negotiation between the developer and property owner can be facilitated, and the balance of power restored.
The Report has outlined that a response to its proposals is due within 6 months, but it is likely that this will not follow until after the General Election in May. So at present, there have been no changes to the current legislation nor the implementation of the statute and case law, so the risk to developers across the UK remains.
Louise Jones LLB (Hons) Dip CII, Business Development Executive, Thomas Carroll Legal Indemnities e t m
louise.jones@thomas-carroll.co.uk (029) 20 858 602 07879 665 605