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Archive for December, 2014

A shining light?

In good time for Christmas, the Law Commissioners published their much awaited report on Rights to Light together with draft Bill.  The distinction between easements and the protection of light in the planning regulations, which remain unaltered, is made clear.

The Commissioners’ recommendations re easements are fourfold.  Abandoned is a previous recommendation to abolish a prescriptive acquisition of rights to light but they do recommend a simplification of both the law as set out in their 2011 Report, Making Land Work and the procedure for interrupting prescription by registering an obstruction notice.

Second, the Commissioners turned to the remedies of injunction and damages should a right to light be infringed.  Historically, damages have been limited by the “Shelfer” rules but the recent Supreme Court’s decision in Coventry v Lawrence [2014] UKSC 13 has changed the law.  The Commissioners welcome this and underline with a rule of proportionality.  In support, a new notice procedure is proposed which puts a neighbour on notice of a development requiring him/her to either claim an injunction within a certain period or to lose the right to claim an injunction.  It is hoped this will make negotiation more effective and save costs.

Finally, the Commissioners again turn to their proposals in their 2011 Report and the draft Easements Bill attached thereto.  In relation to rights to light, they propose an easement be classed abandoned once a window is bricked up for a period of 5 years (20 years’ abandonmnent is proposed for other easements).  Secondly, the Commissioners recommend that the power of the Lands Chamber of the Upper Tribunal to discharge or modify restrictive covenants in certain circumstances be extended to discharging or modifying easements and the Easements Bill should be amdended accordingly.

We and the Law Commission now await the Government’s response to both the Easements and the Rights to Light Bills although whether this will be received in a General Election year one can only wait to see.