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Statutory test for rights of light will not make dispute outcomes any more predictable than they are now
The Law Commission has done what most people thought it would not - propose the abolition of future prescriptive rights of light. But, just how radical are the proposals?
The commission’s report (8 June 2011) recommended replacing methods of acquiring easements by prescription with a statutory method, leaving already acquired easements in place. The commission stopped short of making proposals for rights of light.
However, it now proposes that the future acquisition of prescriptive rights of light should be abolished. This volte-face is justified on the basis that in rights of light disputes, there is a high risk of unscrupulous neighbours demanding sky-high premiums, with a resulting negative impact on development.
The proposals have sparked fierce debate, with the press already scaremongering about the impact on middle England. That debate is welcome and necessary. Developers must give the commission real examples of the impact of rights on development projects. Even if it decides abolition is necessary, existing rights will not be affected and developers will not see positive results for years to come.
Every building that already has an enforceable right may have that preserved, even if the building is demolished, so maybe the abolition of future rights is not as radical as it seems. To deal with this situation the commission has made proposals to deal with existing rights.
First proposed is a statutory test for when a court may award damages instead of making an injunction. The current guidance, in Shelfer v City of London Electric Light Company , is that damages may be appropriate where the injury is small, capable of being compensated by a small payment and an injunction would be oppressive. According to the commission judges are applying this test inconsistently. However, the statutory test suggested still gives judges a wide discretion and may not make outcomes any more predictable.
Second, and most significantly, a statutory notice procedure that allows a developer to force a neighbour to disclose whether he wishes to protect his light is proposed. The neighbour must then injunct the developer quickly. This is to prevent neighbours threatening an injunction merely to extract a large premium from the developer. This proposal could be transformative. Neighbours should not be opposed to a timeframe if they are genuinely concerned about loss of amenity.
Third, it is proposed that the Lands Chamber should have the power to discharge or modify rights of light if, for example, the right does not give the neighbour a practical benefit of substantial value or is contrary to public interest.
The commission acknowledges that a developer will have to make a strong case on public interest grounds to have a right of light discharged and we do not know whether the chamber will exercise its power as the courts do in deciding whether to grant injunctions - unpredictably.