This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
Executive summary
Balancing the important need to stimulate property development and yet protect citizens’ rights to light to their properties remains a challenge to the property industry and lawmakers. The Law Commission has published its report (dated 4 December 2014) on this controversial topic. Its proposals achieve a considerably greater degree of certainty for developers and property owners alike as to when an injunction will be granted to prevent a development or require its removal. The procrastination of some property owners in pursuit of a higher ransom for releasing their rights will be mitigated by the Law Commission’s new procedure, which cuts to the chase in requiring property owners to confirm whether they will pursue an injunction remedy.
Detail
The Law Commission has produced a report, whose recommendations are likely to go a long way to achieving the much sought after balance between promoting development and protecting private property rights. The case law context is that the primary remedy for the infringement of a right to light is an injunction and not damages. This has often been forgotten by developers. The key aspects of the report seek to address this.
New test based on proportionality
The Law Commission proposes a new test specific to rights to light, in which the key concept is proportionality. The Commission recommends that a court must not grant an injunction to restrain the infringement of a right to light if to do so would be a disproportionate means of enforcing the beneficiary’s right taking into account all of the circumstances.
The specified circumstances are not exhaustive and are widely enough crafted to take account of the major factors in deciding whether to award damages instead of an injunction. The fact that this new test would be enshrined in law provides the greater certainty that developers and property owners need as to whether an injunction will be granted.
Notice of proposed obstruction procedure
There is also proposed a new procedure providing developers with a cut-off point after which an injunction is no longer a possibility. The procedure will put a neighbour benefiting from the right to light on notice, requiring them either to claim an injunction within a certain period or to lose the right to claim an injunction. The procedure effectively ends the uncertainty. The neighbour will still be able to pursue damages, but the threat of injunction is usually the bigger concern for developers.
Conclusions
The Law Commission’s report is a weighty tome not only in length but also in legal substance. Rights to light are an important political issue and the Commission has crafted a report that will provide for a legal environment that encourages development at a critical moment in the recovery of our economy. However, private property owner’s rights will continue to be sensibly protected and the proposals seek to deter the exploitation of property rights to elicit a ransom style payment.
