Rights to light

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

We published our final report and draft Bill on rights to light on 4 December 2014. This followed our consultation on the subject, which ran from 18 February 2013 to 16 May 2013. We are awaiting a response from Government to our recommendations

A “right to light” is an easement that gives a landowner the right to receive light through defined apertures in buildings on his or her land. The owner of land that is burdened by the right cannot substantially interfere with it – for example by erecting a building in a way that blocks the light – without the consent of the benefiting owner.

Rights to light are valuable: they give landowners certainty that natural light will continue to be enjoyed by a property – increasing its utility, value and amenity. The right may enable landowners to prevent construction that would interfere with their rights or, in some circumstances, to have a building demolished. Where a development has taken place, but a court does not order its demolition, the court may award substantial damages.  It may not be clear which remedy the court will order and landowners may succeed in preventing development even if they raise the issue after building has commenced. Rights to light will usually (and much more commonly than most easements) arise by long use (prescription) rather than any express agreement between landowners, and in many cases those burdened by and benefiting from rights to light will be unaware of their existence. The planning system does not take account of private rights of this sort, and so rights to light can impact on development even where planning permission has been granted.

The Law Commission’s recent work on easements, covenants and profits à prendre reviewed the general law and did not examine specific easements. It did, however, highlight the need for further work on rights to light.

The project

We commenced this project in March 2012.  We sought to investigate whether the law by which rights to light are acquired and enforced provides an appropriate balance between the important interests of landowners and the need to facilitate the appropriate development of land. We considered how the law might be clarified and examined whether the remedies available to the courts are reasonable, sufficient and proportionate.

We published a consultation paper on this project on 18 February 2013, in which we considered the law relating to the entire life-cycle of a right to light, from creation to extinguishment. We received over 130 responses to the consultation paper.

Our recommendations

We have now published our final report, Rights to Light (Law Com No 356), in which we set out our recommendations for reform of this area of law.  In light of the responses we received to the consultation, our key recommendations are:

• a statutory notice procedure which would allow a landowners to require their neighbours to tell them within a specified time if they intend to seek an injunction to protect their right to light, or to lose the potential for that remedy to be granted;
• a statutory test to clarify when courts may order damages to be paid rather than halting development or ordering demolition;
• an updated version of the procedure that allows landowners to prevent their neighbours from acquiring rights to light by prescription;
• amendment of the law governing where an unused right to light is treated as abandoned; and
• a power for the Lands Chamber of the Upper Tribunal to discharge or modify obsolete or unused rights to light.

We do not recommend that prescription should be abolished as a means of acquiring rights to light.  This represents a different position to that which we advanced as a provisional recommendation in the consultation paper and is a result of responses that we received during the consultation process.

Our recommendations in relation to the statutory test for when a court may grant damages in lieu of an injunction take account of the Supreme Court’s decision in Coventry v Lawrence, which was handed down between our consultation ending and final report being published.