Rights of Light reform: Law Commission report and draft bill published

Having digested the results of its recent consultation, the Law Commission has today published its Report on its proposed reforms to the law relating to rights of light, accompanied by a draft bill.

The full Report is available online but the headlines to note are as follows:

1. U-turn on the proposal to abolish prescriptive rights: The Commission had originally proposed the abolition of prescription in relation to new rights of light, whilst leaving existing rights unaffected. It has now abandoned that proposal. Instead, the Commission proposes some tinkering with the way prescriptive rights are acquired. First, it proposes a streamlining of the underlying law to consolidate the law and make the test for obtaining a prescriptive right simpler. Secondly, it recommends the abolition of the law (enshrined in the Rights of Light Act 1959) which allows a landowner ability to register a local land charge in order to 'notionally obstruct' a neighbour's light and prevent a right of light being acquired by prescription and the replacement of the local land charge procedure with a new, simplifed system.
2. Injunction or damages - proposed new test: This is the main thrust of the reforms. The Commission wants a modernisation of the test that is applied by the courts when deciding whether to grant an injunction or damages for infringement of a right of light. The new test will prevent the court from granting an injunction if doing so would be disproportionate in all the circumstances, including the following:
   1. the claimant's interest in the land that has the right;
   2. the loss of amenity caused by the infringement;
   3. whether damages would be adequate compensation;
   4. the conduct of both parties throughout the dispute;
   5. whether there was unreasonable delay in seeking an injunction;
   6. the impact an injunction would have on the developer; and
   7. the public interest.
3. Measure of damages - as you were, gentlemen: The Commission does not propose any changes to the current law on how levels of damages are currently calculated when injunctions are refused, so we will see a continuation of the profit share approach.
4. Put up or shut up - the 'Notice of Proposed Obstruction': This proposed change will be welcomed by developers. It will introduce a new procedure whereby a developer could serve notice on a neighbour who has a right of light, requiring the neighbour to seek an injunction with a set period (eight months) or accept that the right to claim an injunction will be lost. The cost to the developer will be the need to pay the neighbour's costs of taking legal and surveying advice during the 'decision period'. However, developers are likely to see this as a price worth paying to get rid of the current uncertainty that has led to neighbours obtaining disproportionately high financial settlements simply by playing the long game.
5. New Lands Chamber procedure for discharging or modifying rights of light: For almost 100 years it has been possible to apply to the Lands Chamber (formerly the Lands Tribunal) for an order discharging or modifying a restrictive covenant on certain grounds. The Commission proposes extending the jurisdiction of the Chamber to deal with rights of light in a similar way.
6. Bringing rights of light to an end: The last main proposed change of note is to introduce a rule that if a right of light is not used (e.g. because a window is bricked up) for 5 years it should be treated as at an end by virtue of having been abandoned.