Rights of light: Time for a change?

Abstract

The Law Commission's recent consultation paper on rights to light put forward a number of proposals aimed at managing the problems highlighted in Heaney including: the abolition of prescription (for new rights only); reform of the Shelfer test governing when damages are awarded in substitution for an injunction; and the introduction of a new Notice of Proposed Obstruction (NPO) procedure. Whereas it is anticipated prescription will remain ‘as is’, there is genuine hope that the Shelfer reforms will materialise — including the consideration of a claimant's unreasonable delay in bringing proceedings — balancing the parties’ negotiating power. The NPO's prescribed time limits for neighbours to seek an injunction should also serve to expedite negotiations. The proposals, if accepted and implemented, would go a good way to addressing the inherent uncertainty faced by developers in rights to light cases, while balancing and respecting adjacent owners’ interests. In the absence of any proposal to impose a cap on damages, however, settlements (which can be huge) on a profit-share basis may still be awarded. Could it be, however, that a neighbour electing not to seek an injunction will find their damages quantum reduced? Only time will tell.