Publication of the Law Commission’s Rights to Light Bill at the end of last year was the latest chapter in reforming a policy that many say has a disproportionately negative impact on development.

Gordon Ingram

At the time, we welcomed publication of the proposed reforms as “undramatic, but significant”, retaining a balance between development in the public interest and protection of a neighbour’s rights to light.

Some were surprised at what the reforms didn’t address, but this is due to the context in which they were introduced. Back in 2010, rights to light emerged as a commercial and residential concern, with opponents saying it was an obstacle to development in a challenging economic climate. Many called for its abolition.

Government deemed the issue a legal matter and demanded an appropriate response from the Law Commission. This resulted in the 2011 Easements Report, which addressed the perceived disproportionate impact of rights to light on potential development, but didn’t anticipate a subsequent backlash in the popular media. The property industry had also failed to demonstrate any significant halts to development caused by rights to light, or excessive payments being applied.

In 2013, the Law Commission agreed to retain and rebalance rights of light through the Notice of Proposed Obstruction procedure, providing more flexibility in awarding damages against a default need for injunction. However, questions were raised about its application.

In 2014, as we awaited the bill, the Coventry vs Lawrence noise nuisance case arguably stole its thunder by ten months, by suggesting that developers may be able resist an injunction if their development has planning consent, and instead pay damages. Since publication, it’s been clear that the essence of that Supreme Court judgement is enshrined in the bill, with some questioning whether it now even needs to be pursued.

For some, the bill doesn’t go far enough. For example, it doesn’t address profits from damages, owing to there being little evidence to support claims of this nature, as well as many developers opting to settle out of court. Addressing this would have also impacted other areas of English law, thereby distracting and impeding the matter in hand.

Following the bill, there are still potentially injunctable scenarios, though developers are engaging with neighbours earlier. While this good practice has not decreased the threat of complaint, it helps to remove scenarios that risk termination of development.

Even if introduced alongside the 2011 Easements Report, the proposed reforms will not generate dramatic change. However, the bill is a milestone, providing more transparency and encouraging earlier, more constructive negotiation. The government should now consider and respond to the bill, prior to seeing its full implementation - although this may be a big ask in an election year.

Gordon Ingram is the founder of GIA