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The ancient doctrine of ‘right to light’ is under review

28th September 2015

In basic terms a right to light is a right for an owner of property to receive light through windows in buildings on their land.  Accordingly, the owner of any adjoining land over which light passes cannot substantially interfere with this right by the construction of buildings.

These rights are often a source of frustration for developers who may be prevented from developing if rights to light are infringed.

A landowner who is successful in asserting a right to light may be able to obtain an injunction preventing the construction of a new building or an order for the demolition of an existing building that infringes the right to light.

The courts are able to award compensation as an alternative to an injunction but the law concerning the remedy for a breach of a right to light is uncertain and the Law Commission has now published recommendations for reform.

The recommendation of the Law Commission, if implemented, would allow developers to serve a notice on adjoining owners forcing them to apply for an injunction within 8 months from the date of service of a notice by a developer.  If no application is made within the 8 month period then a claimant would only be able to apply to a court for damages.

The Law Commission have also proposed the introduction of a statutory test to be used by judges to determine whether an injunction or financial compensation is the most suitable remedy.  The statutory test would include the following factors;

• What impact an injunction would have on a developer
• Whether or not the grant of an injunction is in the public interest
• Whether damages would be adequate compensation for the landowner whose right to light is infringed

If implemented these proposals should simplify what is currently an archaic and complicated area of law.  The underlying aim would be to ensure that an injunction will not be granted if this would be a disproportionate means of enforcing an adjoining owner’s right to light

The Law Commission anticipates an interim response from the government shortly and a final response by the end of the year.

Danii Jhurry-Wright. Partner, commercial property department.

Commercial Property, General, George Ide, News, Residential Property Conveyancing
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