The Law Commission (England and Wales) is asking for comments on its consultation document on rights to light (negative easements which restrict building in such a way as to block light to a property which enjoys such a right).
The suggested move is towards restriction of such rights – should the proposals be accepted, it will be harder to acquire such rights, and easier to have them declared invalid. Clearly, this is something which property developers would like, and which those wishing to resist development may regard with some wariness. No doubt property law blogs will have much to say about this debate. The Bracton’s Sister angle on things is, of course, less focused on current law, and more interested in other sorts of observation. There are a few things which it seemed worth mentioning …
1. One of the bodies consulted already is the ‘Association of Light Practitioners’ – this, presumably, is a group not open to those of a stouter persuasion.
2. The consultation document continues the strange tendency of lawyers to personalise real property, or make it out to be something other than inert and/or metaphysical – we are told that the document will look at ‘the life-cycle’ of the right. As with the idea of ‘making land work’ this is of a piece with the artificiality and personalisation of concepts such as ‘accommodating the dominant tenement’, ‘touching and concerning’ etc. I have always found this rather silly.
3. The document does not go into history – but it is interesting to note that rights to light can be traced back into the earliest common law reports. The issue might be cutting off light to crops rather than to a house (see Seipp 1306.157), but the matter came up more commonly in a more built-up context (see, e.g., Seipp 1326.051 and 1333.150 concerning a house being built very close to another, and, amongst other things, reducing its light). Such cases were dealt with, in the early modern period, by actions on the case for nuisance (see, e.g. Baten’s Case 9 Co. Rep. 57b). In these cases, the right to light was not able to be used to block all building – a substantial interference was required before a court would act (see Baten). There remained tensions between setting the rules so as to please those wishing to build, and setting them in favour of those wishing to prevent interference with their own existing property, and the cases in the eighteenth and nineteenth centuries are not entirely consistent on the level of interference which would be actionable. Judges seemed torn between conflicting social, political and economic goals – this was, and remains, a clash between conservative landed interests and more ‘thrusting’ developers.