16 February 2013

Mehr Licht

The UK Law Reform Commission has released a 142 page consultation paper [PDF] regarding British law governing 'rights to light', ie a property right that "entitles a landowner to receive, usually through a window, enough of the natural light passing over a neighbour's land to enable the ordinary use of the building". It's of interest for Australian scholars of property and tort law.

The paper builds on the Commission's 2011 report as part of its 'Easements, Covenants and Profits à Prendre project' and reflects the High Court decision in HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch), [2010] 3 EGLR 15.

The Commission comments that rights to light raise issues that are more pronounced, in comparison with other easements and appear to have a disproportionately negative impact upon the potential for land development the development of land.

The Commission indicates that it has three key objectives -
  • to introduce greater certainty and transparency into the law as it relates to rights to light, making disputes simpler, easier and quicker to resolve. 
  •  to ensure that rights to light do not act as an unnecessary constraint on development. The availability of modern, good quality residential, office and commercial space is important to the success of increasingly dense, modern town and city centres, and to the economy more generally.
  • to make sure that the important amenity value of rights to light remains protected under the law. 
The consultation paper has eight chapter, with an overview of the current law in Chapter 2.  In Chapter 3 the Commission discusses how rights to light can be created through the doctrine of prescription, where a building or room has benefited from light passing over a neighbour's land for a long period. It provisionally proposes that rights to light should in  future no longer be capable of acquisition by prescription. Chapter 4 considers the test for when a person who benefits from a right to light can bring a legal claim on the basis that his or her light has been obstructed, ie at what point an obstruction becomes actionable in the law of nuisance. Chapter 5 addresses remedies for the infringement of a right to light – principally injunctions (for example, an order that the construction of a building cease, or that it be demolished) and damages.  Chapter 6 discusses the availability of injunctions and their role  in negotiations as a powerful bargaining tool. The Commission provisionally proposes introduction of a notice procedure designed to introduce greater clarity into rights to light disputes. Chapter 7 focuses upon how rights to light can be brought to an end, particularly the extinguishment of rights to light by abandonment.

Four provisional proposals are as follows
  • in the future it should no longer be possible to acquire rights to light by prescription
  •  introduction of a new statutory test to clarify the current law on when courts may order a person to pay damages instead of ordering that person to demolish or stop constructing a building that interferes with a right to light. 
  • introduction of a new statutory notice procedure, which requires those with the benefit of rights to light to make clear whether they intend to apply to the court for an injunction (ordering a neighbouring landowner not to build in a way that infringes their right to light), with the aim of introducing greater certainty into rights to light disputes. 
  •  the Lands Chamber of the Upper Tribunal should be able to extinguish rights to light that are obsolete or have no practical benefit, with payment of compensation in appropriate cases, as it can do under the present law in respect of restrictive covenants. 
The proposal for prospective abolition (ie future acquisition of rights to light by long use) would have no impact on rights to light already acquired by prescription.

The Commission notes three other areas of the law for comment. The first is the test for when an obstruction of light constitutes a nuisance and is therefore actionable. The current test is based on an early twentieth-century case and depends upon the use to which the property benefiting from the right to light is put, and the effect of the obstruction of light upon that use and on potential future uses. The second area is damages. Under the current law the damages that may be awarded instead of an injunction are calculated on the basis of the amount for which the owner of the right to light would have released the right, thereby allowing a development that would otherwise constitute an actionable interference to proceed. This "negotiation basis" of assessing damages can take into account the profits that the proposed development will make.  The paper considers arguments regarding retention of the "negotiation basis" of calculating damages and  alternative options, commenting that it is not clear whether the current law is causing practical problems. The third area is the law of abandonment. A right to light is abandoned where there is an intention on the part of the owner of the right to give it up permanently. In some instances this intention may be clear (eg shutting up a window with bricks and mortar) but in other scenarios the law may be more difficult to apply.