On 23 April 2013 Hogan Lovells hosted a lively debate at which Law Commissioner Professor Cooke, Liz Peace, Chief Executive of the BPF, John McGhee QC, Gordon Ingram, rights to light specialist surveyor, and Gerald Kaye, Development Director of Helical Bar expressed conflicting views on proposals made by the Law Commission in its recent consultation paper. The debate was chaired by Dellah Gilbert of Hogan Lovells.
Rights to light have become an increasingly contentious and confusing area in recent years to the frustration of developers. The situation has not been helped by recent cases, in particular, the 2010 case of Heaney in which a developer was ordered to demolish a part of the completed development which infringed upon a neighbour’s right to light. This case sent shock waves throughout the industry as many had assumed that damages rather than an injunction would be the appropriate remedy. The developer had acted proactively to negotiate a resolution but ultimately had lost out to an owner who refused to negotiate, wanting to receive a greater sum in damages.
In the hope of achieving greater certainty and transparency, the Law Commission is consulting on proposed changes to the law. The Law Commission’s proposals seek to balance the need to protect the amenity value of rights to light against the needs of developers. The four main proposals are:
- Abolish rights to light being acquired by prescription (i.e. long use) in the future.
- A new statutory test to clarify when damages should be granted instead of an injunction.
- A new statutory notice procedure requiring neighbours to make clear to developers whether they will be applying for an injunction to prevent an interference with their rights to light.
- Allow developers to apply to the Lands Tribunal to extinguish or modify rights to light that are obsolete or have no practical benefit.
The panellists were generally in favour of changing the law although there was a range of views as to what these changes should entail. The question of whether rights to light should be taken away from the courts and left to the planners proved a particularly contentious area. There was also much debate over whether the damages awarded should be a percentage of the profit and therefore quite substantial or reflect the loss in value to the neighbour’s property and therefore relatively small.
Liz Peace emphasised the need to receive comments on the consultation paper by 16 May 2013 as, without financial evidence of the injustices felt by those affected by rights to light issues, the government is unlikely to change the current law. The BPF has prepared an Impact Proforma, which can be used to submit such evidence and which it will collate and use in its response to the consultation: click here for a copy. Hogan Lovells will also be sending a written response and we would be happy to include your views. Alternatively, representations can be made direct to the Law Commission. Full details of the consultation can be found at http://lawcommission.justice.gov.uk/.
Whatever the outcome, it remains debatable whether any reforms can ever truly balance the competing interests of property owners and developers or even whether the proposed changes will ever see the light of day.