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Planning: Law Commission launches controversial 'right to light' review

The Law Commission yesterday launched a new consultation that will examine the 'right to light' provisions.

Properties in the UK have benefited from a right to natural light for centuries, but recently questions have been raised over whether the right is hindering urban development.

The consultation will seek public opinion on the matter and runs until May 2013.

Property owners in the UK have enjoyed a 'right to light' for well over 300 years. The right to light is an example of a legal property right. Property rights are commonly called 'easements' and effectively allow the owner of a piece of land the right to enjoy a benefit from another piece of land.

The purpose of the law is to ensure that those who own a property can enjoy any natural light that it receives and acts to prevent owners of neighbouring property from building anything that interferes with this light without their express permission.

A right to light can be expressly granted by agreement between two landowners, or it can be implied by previous conduct. In any event, a right to light is created once the light has been received for 20 years.

The problems with a 'right to light'

Although seen as an essential and fundamental part of planning law in the UK, the right to light has created planning dilemmas. The Government believes that the current UK planning laws are stifling development and contributing to the current housing crisis.

One particular case prompted the Government to request that the Law Commission specifically review the right to light law. The 2010 Heaney case concerned a developer, HKRUK II (CRC) Limited, and Marcus Heaney, the owner of a grade two listed building in Leeds.

The developer took Mr Heaney to court to ensure that they were free from liability for constructing an office block that interfered with his 'right to light'. The developer believed that Mr Heaney's failure to engage in a negotiation process prior to their constructing the office block would debar him from making a complaint later on.

The courts ruled against the developer, deciding that the development had infringed Mr Heaney's 'right to light', but remarkably instead of awarding damages, the court ruled that the developer must remove the offending top two floors of the building. One of the floors had already been let to tenants and the construction work to remove the two floors cost well over £1m, far more than would have been awarded in damages.

The Government believes that decisions such as the one in Heaney play into the hands of stubborn landowners, who refuse to negotiate with developers knowing that the longer they hold out, the higher the damages they are likely to receive.

The Law Commission's consultation document read: "It has been suggested that the case has had a detrimental effect on the ability of rights-to-light disputes to be resolved swiftly and amicably."

The Law Commission consultation is considering views on plans to abolish the automatic right to light after 20 years, with a suggestion that this would only apply to new build properties.

Sources:

Right to light under threat in planning law shake-up (The Telegraph)

Rights to Light (The Law Commission)