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Proposed reform to rights to light welcome but unlikely to make it onto the statute books any time soon, says law firm Winckworth Sherwood

Mon 08 Dec 2014

The Law Commission unexpectedly published last week (4 December) its long awaited recommendations on reform to the ancient rights to light regime, following its consultation in May 2013.  But, according to law firm Winckworth Sherwood, the recommendations are unlikely to make it on to the statute books until after next year’s General Election.

The proposals may not go as far as some developers would have hoped, but will be broadly welcomed removing some of the uncertainty that threatens new development. 

However welcome the recommendations there is a real fear, says law firm Winckworth Sherwood, that the proposals will not make it onto the statute books for the foreseeable future because of the proximity of next year’s General Election and pressures on parliamentary time.

The recommendations include:

  • A new statutory test to determine when the courts may order damages rather than requiring a developer to halt or demolish a development.
  • A statutory notice procedure whereby developers can serve notice on neighbours requiring them to obtain any injunction within an eight month notice period
  • The ability to acquire a right to light by prescription, by receiving light through a window for 20 years, is retained, but new streamlined rules replace the current legislation on such acquisition.
  • A presumption that rights to light will have been abandoned if they have not been exercised for five or more years, for example a window being bricked-up.
  • Giving the Lands Chamber of the Upper Tribunal the powers to discharge or modify obsolete or unused rights to light.

Charlotte Colman, a senior associate in the Property Litigation team at Winckworth Sherwood who represents house builders and commercial developers 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  The rules are out-of-date and in urgent need of review following a spate of recent case law.

“These recommendations will be broadly welcomed by developers introducing a greater degree of certainty ensuring a fairer balance between the competing interests of land owners and developers.”

Charlotte adds: “Some developers would have preferred prescriptive rights to light to be abolished entirely, as previously recommended by The Law Commission.  However, this is well balanced by the eight month statutory notice period, which will mean that landowners can no longer hold developers to ransom.”

The real concern, however, is the timing of the announcement.

Charlotte says: “Pressures on parliamentary time are considerable, with the Christmas recess and the General Election drawing close.  It is highly unlikely that these recommendations will be enacted in this parliament’s lifetime and that will be a huge disappointment.” 

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