A Light Shineth in a Dark Place
In 2008 the Law Commission published a consultation paper on easements, covenants and profits-a-prendre. In 2011 the Commission made recommendations about the reform of the law of easements, and a draft Easements Bill. The recommendations are yet to be introduced into Parliament.
In the course of that process, concern was expressed by the development industry about the use of rights to light by landowners to obtain large payments from developers for their release. In 2010 the decision of the High Court case in HKRUK II (CHC) Ltd v Heaney caused significant problems for the developers. Contrary to their expectation that damages would be awarded for the infringement of rights of light, an injunction was given requiring the demolition of two floors of a new building. The case heralded an exponential increase in risk for those infringing rights to light.
To deal with the specific concerns about the right to light, the Commission issued a Consultation Paper in February 2013, and has now published recommendations for reform of the law of rights to light. The aim is to provide greater clarity and certainty for each party negotiating over rights to light.
The Commission suggests that the prescriptive acquisition of rights to light should continue, with the simplification of prescription into one statutory scheme which would bring to an end the informal acquisition of rights to light by prescription. It recommends that prescription ought to be preventable by giving a certificate of light interruption. This would be lodged on the local land charges register and could be registered by a freeholder, a lessee with more than seven years to run on its lease, or a mortgagee in possession.
The Commission has also recommended the repeal of the Rights of Light Act 1959, and that its complex system, which assumes the imaginary erection of an opaque panel to obscure windows and prevent acquisition of rights to light, be replaced with a simplified procedure to take effect alongside the reformed law of prescription. The repeal of the Prescription Act 1832 is also required.
The two remedies for infringement are damages or an injunction. Taking into account the Supreme Court’s recent judgment in Coventry v Lawrence, the Commission recommends a new statutory test to assist courts when they must decide whether to grant an injunction, or award damages instead of an injunction.
A new notice procedure
A significant obstacle for a developer is that the legal uncertainties mean a landowner can threaten to seek an injunction and can reject offers for settlement. The result is high settlement figures negotiated over an extended period of time.
The Commission’s proposals deal with the problems of wasted time and uncertainty. They would enable developers to serve a neighbour with a Notice of Proposed Obstruction. This proposes a time period of eight months of the notice being served within which the landowner must seek an injunction, failing which the only remedy would be damages.
The law on abandonment of a right to light is problematic because proof of intention to abandon is required and often difficult to demonstrate. The Law Commission recommends that non-use of an easement for a right to light over a continuous period of 5 years would amount to evidence of an intention to abandon the easement.
Discharge and modification of rights to light
The Law Commission recommends that all easements, including rights to light, should be brought within the Lands Chamber’s proposed jurisdiction to discharge or modify easements. It is proposed that the 2011 draft Easements Bill is amended to address this issue before its introduction into Parliament.
The Government response to these recommendations is awaited, together with a response to the earlier proposals for the reform of the law of easements. Taking into account the extent of the concern around the operation of the Rights of Light regime, this may be one Law Commission Report that is enacted into law sooner rather than later.