Law Commission’s wait and see approach to calculation of damages for ‘rights to light’ infringements is disappointing

Posted: 04/12/2014

The Law Commission has today, 4 December 2014, published its recommendations on reform of the law relating to rights to light. The five main recommendations are as follows:

• a statutory notice procedure which would allow a landowners to require their neighbours to tell them within a specified time if they intend to seek an injunction to protect their right to light, or to lose the potential for that remedy to be granted
• a statutory test to clarify when courts may order damages to be paid rather than halting development or ordering demolition (taking into account the Supreme Court’s decision in Coventry v Lawrence, which was handed down after the consultation ended)
• an updated version of the procedure that allows landowners to prevent their neighbours from acquiring rights to light by prescription
• an amendment to the law governing where an unused right to light is treated as abandoned
• a power for the Lands Chamber of the Upper Tribunal to discharge or modify obsolete or unused rights to light.

Notably, the Law Commissions has not made any recommendation for change in the measure of damages that can be awarded instead of an injunction, recognising that this is a controversial area.

Donald Lambert, head of real estate litigation at Penningtons Manches, said: “One of the key issues in rights to light is the level of damages that will be awarded in lieu of an injunction. The paper recognises the considerable divergence between common law and equitable levels of damages. It is therefore disappointing that the Law Commission does not yet feel able to recommend reform to clarify this area of uncertainly but simply recommends that the issue is reconsidered once the current proposals have been enacted.”

The Government now has to decide whether or not to take the Law Commission recommendations forward.

Click here to view the recommendations. 

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