Contact: Boodle Hatfield (London, England)
Law firm Boodle Hatfield has today (21 February) welcomed the government’s consultation on the out-dated rights to light legislation.
The consultation, which will close on 16 May 2013, will examine alternatives to the current rights to light regime that Boodle Hatfield says can both hold up developments and increase the cost of development projects.
Robert Marchbank, a solicitor in Boodle Hatfield’s Commercial Property department said: “The rights to light legislation dates back to the early 1600s, when people worked by candlelight and the right to natural daylight needed protection. The rules, which were last revisited some 20 years ago, are out-of-date and in urgent need of review.”
The problems surrounding rights to light were highlighted in 2010 in Leeds when a developer was forced to demolish part of a completed building following complaints from a neighbouring resident (the parties subsequently agreed an out of court settlement).
Robert said: “The law as it currently stands means that whilst developers must rightly address rights to light at the planning stage, they still remain at risk of an injunction from any neighbours once the building is complete. This can result in substantial compensation payments or, in extreme cases, demolition.”
Robert adds: “Developers have to pay significant fees at the beginning of a development project to determine whether there are any rights of light issues. Compensation payments must be agreed if neighbours do have rights to light.
“Rights of light can also impact on the design of the development, for example restricting the number of floors the developer can build, or be so prohibitive that they do not proceed with the development at all. In these tough economic times, developers should be encouraged to develop and rights of light are proving a constraint on this.”
The consultation has been tasked to examine four different options:
- Remove the possibility to acquire rights to light by prescription, when a right has been enjoyed uninterrupted for more than 20 years.
- Introduce a new statutory test to clarify the law on when compensation may be payable, instead of ordering a building to be demolished.
- Introduce a time limit that requires those with the benefit of a right to light to make clear whether they intend to apply to a court for an injunction.
- The ability to abolish rights to light on buildings where that right is obsolete or has no practical benefit.
- This consultation is welcome but developers will argue that the proposals do not go far enough,” says Robert. “The options on the table may still mean that a development can be stopped because of neighbouring rights to light. Rights to light are of course important, but perhaps ought to be dealt with at the planning stage.”
“Developers would have liked to have seen a statutory test introduced that determines the level of damages payable based on how much light has been lost, with the injunction remedy removed altogether. Another option would have been to exclude all rights to light in major cities where pressure on space is at a premium. These measures would introduce some much-needed certainty for developers.
“The consultation is welcome and we would encourage developers to make their views known, but there is a danger that it is a lost opportunity.”
