Proposals to simplify costly disputes over right of light in town and city centres could have an unfair impact on homeowners in suburban and rural areas.
The proposals published by the Law Commission suggest ending centuries-old “prescriptive rights of light” that give a property owner a right to light once it has been in place for 20 years.
This has long been a bone of contention with developers who see it purely as a means to enable owners of neighbouring developments to demand large cash settlements, instead of using the planning system to oppose development.
When the Commission first announced its intention to consider rights of light, one of its objectives was to assess whether the law struck a fair balance between the interests of land owners with the benefit of rights to light and those wishing to develop in the vicinity.
Now that its Consultation has been published, we see that as well as proposing an end to prescriptive rights of light the Commission is calling for a statutory notice procedure requiring potential claimants to confirm if they intend to make a claim; a statutory test to determine whether the courts should award payment of damages or go so far as to prevent the development; and finally that a tribunal could have the power to extinguish rights to light that have become obsolete.
The Law Commission is now inviting comments during a three month consultation period, and developers are expected to make strong representations.
In introducing the proposals for discussion, the Law Commission said: “We have approached this consultation paper on the basis that rights to light are valuable protections, which should be respected.
“But so must the legitimate interests of those involved in developing the land, who are deeply concerned about the uncertainty of the current law and the risk of that uncertainty being exploited by those who benefit from rights to light.”
The eagerly awaited consultation follows a High Court decision in 2010 that left both landowners and developers confused about their position and with little certainty about what to expect from proceedings. The courts too have found it increasingly tricky and time consuming in reaching decisions in rights to light cases.
The proposals are aimed at progressing developments through the planning system rather than using an old piece of bureaucracy in a way in which it was never intended.
The Law Commission will need to be careful it does not impinge on home owners’ rights to light in a “domestic” setting.
In suburban and rural settings, it is clearly important that somebody’s proposals for rebuilding or the construction of an extension to their home, do not take away valuable light from the neighbouring property.
However, there have been claims in recent years that issues such as rights to light have made inner city regeneration proposals more difficult to formulate, and indeed rendered some projects virtually unviable due to uncertainty as to what claims there might be, the timescale taken and costs involved in resolving disputes.
What is crucial is that, particularly where there are huge sums of money at stake such as in the City of London or central Birmingham or Coventry, developers need a greater degree of certainty on what the likely challenges might be, and more importantly the time and certainly the cost implications.
As well as comments on specific proposals the Law Commission is also inviting details of examples and evidence of the effects of rights to light claims on funding, delays or alterations to developments and the costs involved.
And under the heading of “be careful what you wish for” the Commission is likely to get quite an avalanche of views, not least from within Parliament itself.
According to campaigners opposed to the changes, removing the protection could leave almost three million households powerless to prevent large developments near their homes, reducing their value and appeal.
Clive Betts, chairman of the Commons communities and local government committee, said there was “no merit” in revising the laws and said that light “makes an enormous difference to people’s homes”.
“Light is actually very important. If you allow people to build large extensions and you took away their right to light, essentially people could have the enjoyment of their homes substantially worsened.
“I can’t see any justification for scrapping it. It seems to me a perfectly good principle, one people can understand and support. Instinctively my reaction would be that I don’t see any merit in this.”
The Law Commission needs to ensure that proposals intended to free up planning disputes in inner city regeneration sites, does not have far reaching consequences that it may not have intended.
About the author
Mark Lee is a partner in the Business Property team in the Commercial Property Department. He joined Lodders in 2005 from Martineau Johnson in Birmingham. Before qualifying as a lawyer, he was a Chartered Surveyor for seven years, specialising in commercial property valuations. He specialises in commercial and residential development and commercial investment, where his surveyor’s background has proved to be a considerable advantage.
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