Rights to Light Analysis of Responses Consultation Paper No 210 (Analysis of Responses) December 2014 RIGHTS TO LIGHT CONSULTATION ANALYSIS This document analyses the responses of consultees to the Law Commission’s Consultation Paper, Rights to Light (Law Com Consultation Paper No 210) – referred to in this document as the “Consultation Paper”. This document is published at the same time as our Report1 which sets out our recommendations to reform the law as it relates to rights to light. The Report contains further analysis and examination of responses. This analysis does not set out every response, but is intended to give an overall flavour of the responses received. It is intended to be policy-neutral; we express no opinion on the merits of responses, nor on their accuracy. This document is split into chapters that correspond to those in the Consultation Paper. There is no chapter 2, because the Consultation Paper considered the current law in that chapter and invited no response. In chapter 1 of the Consultation Paper we asked consultees to provide us with material that would assist in the eventual preparation of an impact assessment; material given to us in answer to that question is considered in Chapter 8 of the Report. The chapters that follow set out the questions and provisional proposals made in the Consultation Paper. Each question is followed by an analysis of relevant consultation responses. A final chapter draws together some of the comments made by consultees that are not directly linked with specific questions and provisional proposals in the Consultation Paper. A list of consultees (except for those who have asked to remain anonymous or have asked that their responses should be treated as confidential) is included as Appendix A. 1 Rights to Light (2014) Law Com No 356. 1 CONTENTS Page Chapter 3: The creation of rights to light by prescription 3 Chapter 4: Interferences with rights to light 19 Chapter 5: Remedies: injunctions and damages 25 Chapter 6: The notice of proposed obstruction procedure 49 Chapter 7: Bringing rights to light to an end 73 Chapter 8: Other comments 83 Appendix A: List of consultees 92 2 CHAPTER 3 THE CREATION OF RIGHTS TO LIGHT BY PRESCRIPTION We provisionally propose that prescription should be abolished for rights to light. Do consultees agree? [Consultation Paper, paragraph 3.48] 3.1 In Chapter 3 of the Consultation Paper, we examined whether rights to light should continue to be capable of creation by prescription – that is, by virtue of long-term uninterrupted enjoyment of light. 3.2 We explored the reasons for and against acquisition of property rights by prescription generally, as well as specific arguments for and against prescription of rights to light. We concluded that the arguments in favour of abolishing prescription for rights to light outweighed those in favour of its retention, and, accordingly, proposed its abolition. The responses 3.3 Nearly 70 consultees responded to this question. Of these, 23 supported the proposal to abolish prescription of rights to light, 36 were against it, and a few took no clear stance either way. Consultees who supported abolition of prescription for rights to light 3.4 Several consultees simply stated their support for the proposal without elaboration. These included the Council of HM Circuit Judges, Matthews & Goodman LLP, 4 Housing Architects, Julian Barwick (Director, Development Securities plc), and Transport for London. 3.5 The Bar Council explained its support on the basis that “clarity and simplicity of the law is always desirable”, agreeing with the view in the Consultation Paper that it is unlikely the average landowner would know enough of the law to be able to take steps to prevent his or her land becoming burdened by easements of light arising from prescription, which requires no action whatsoever on the neighbour’s part. The ability of parties to create rights to light by express agreement was seen as sufficient protection for dominant owners. 3.6 HDG Ltd supported the proposal “fully”, considering rights to light arising from prescription to be “a trap for the unwary… who may have no way of knowing that they will be disentitled to alter their property without their neighbour’s permission” and “a windfall for the lucky few”. It felt that the planning process was better equipped to balance the competing interests of useful development of land and the preservation of amenity in the context of the broader public interest. 3 3.7 In a confidential response, one consultee stressed the perceived unfairness of permitting a neighbour to dictate the use of adjacent land despite having done nothing to earn such a right of control, and having paid nothing for the power to do so. It considered that “abolishing the creation of rights to light by prescription will support development” at a time when housing is in significant demand. 3.8 Helical Bar plc expressed the view that “rights to light acquired after a period of 20 years are an anachronism in today’s world”. 3.9 Malcolm Hollis LLP noted that although the light obstruction notice procedure can already be used to prevent rights to light arising by prescription, it is a burdensome and potentially expensive step for landowners to have to take. 3.10 The City of Westminster and Holborn Law Society emphasised the uncertainty that prescription causes, making it difficult for any developer of land to establish exactly whose rights may be infringed by a proposed development. It suggested that post-abolition, all new structures should benefit from a specified statutory minimum right to light. 3.11 Other consultees gave more cautious and qualified support. 3.12 Derwent London plc felt that the proposal was a “nice to have” rather than a “must have”, explaining that: Our perception is that this will have very little beneficial impact in the short to medium term and the impact of this reform will only be felt – if at all – in decades to come. Therefore, given the adverse press and publicity reaction to this proposal, we would not like to see this proposal pushed through at the expense of the other proposals which are in our view more helpful from a developer perspective. 3.13 Similarly, Berwin Leighton Paisner LLP also felt that the proposal “could be the least helpful proposal to developers and the most controversial proposal from a press/public perspective”. Accordingly, it only supported the proposal if it could be implemented without adversely affecting the implementation of other, more immediately helpful proposals. Along with Land Securities, it raised concerns that abolition of prescriptive rights going forward would mean existing rights would be “jealously guarded”, becoming more valuable, and increasing the emphasis on legal arguments about whether a right to light has transferred from one building to another. 3.14 The Berkeley Group plc supported the abolition of prescription for rights to light, but only “in built up city areas”. 4 3.15 Herbert Smith Freehills LLP queried whether the concept of acquiring rights to light by prescription was of “continuing real relevance in the 21st century”, highlighting the complexity involved in discovery, proof and valuation. It also emphasised that the light obstruction notice (“LON”) procedure under the Rights of Light Act 19591 could, in theory, be used to block all future prescription anyway, and so did not see the proposal as a radical step beyond the current law. However, it felt that the proposal risked derailing other, more useful reforms, without doing anything to ease the problems linked to already established rights to light. 3.16 Nabarro LLP considered that “if the Consultation is to meet its stated objectives, the abolition of the future acquisition of prescriptive rights of light is necessary and justifiable”. However, given the “sensitivities” and negative press comment surrounding the proposal, it recommended limiting reform to commercial premises only, allowing residential premises to continue to acquire rights to light by prescription. It argued that the LON procedure does not provide enough protection and does not make the proposal for reform unnecessary, since: (1) the utility of the LON procedure for preventing prescription is not universally appreciated; (2) the LON procedure is cumbersome and expensive, especially where multiple properties are affected by a single development, and must be repeated every 19 years; (3) even where a landowner is aware of the LON procedure, it is often not possible accurately to predict when a neighbouring property is close to acquiring a prescriptive right of light so that it should be invoked. 3.17 Nabarro LLP justified treating commercial premises separately to residential premises on the basis that the former frequently rely heavily on artificial light rather than natural light, whereas the latter are “more sensitive to a reduction in [natural] light”. It did not consider that defining residential use presented an insurmountable obstacle. It argued that any change of use from residential to commercial during the prescription period could be regarded as an interruption that stops the clock and prevents the acquisition of a right to light. 3.18 The Association of Light Practitioners felt that abolition in respect of commercial premises only was an option worth considering. Consultees who opposed abolition of prescription for rights to light 3.19 A number of key themes arose from the responses of consultees who were against the proposal to abolish prescription for rights to light. The reasons for opposition can be divided into the following categories, with many responses raising more than one of the points below. 1 See para 3.71 and following below. 5 CONCERN ABOUT THE PROTECTION OF LIGHT IN PLANNING LAW 3.20 A number of consultees’ primary objection to the proposal was that it would leave protection of the amenity of light to the planning system, which they considered inadequate.