Blog: Law Reform Committee - Edition 8: Letter to Minister of State for Housing and Planning

The Law Reform Committee wrote to Matthew Pennycook, the Minister of State for Housing and Planning, and Lord Livermore, Financial Secretary to the Treasury, in January setting out proposals for reform of private property law constraints on housebuilding.

Purpose of the letter

The purpose of the letter was to outline a small number of targeted reforms, which would align with the government’s target to build 1.5 million new homes by 2029, at little cost to the Treasury. We focused on the reform of easements such as rights of light and rights of way, on the basis that these rights regularly thwart, delay and / or drive up the cost of development.

Proposed reforms

In particular, we highlighted two simple potential reforms relating to restrictive covenants and easements (which would put into effect previous Law Commission recommendations), as follows:

1. We proposed that the Upper Tribunal (Lands Chamber)’s limited jurisdiction to discharge and / or modify restrictive covenants should be extended to include easements, so that developers could apply to discharge or modify easements such as rights of way, rights of light, drainage rights; or set a framework for settlement discussions with neighbouring owners; and
2. We proposed that the existing statutory grounds for discharging and / or modifying restrictive covenants under section 84 of the Law of Property Act 1925 should be widened, so that an order for discharge / modification should be granted where (i) any prejudice to the property owner can be adequately compensated in money and (ii) the benefit to the public from making the order would outweigh any prejudice to the property owner, with the Upper Tribunal having specific regard to the public interest in development and the provision of new homes.

These reforms could be enacted by amending section 84 of the Law of Property Act 1925, probably without the need for any consultation given previous Law Commission recommendations. 

In relation to rights of light specifically, we recommended that serious consideration be given to reforming rights of light, and in particular:

1. Abolishing the ability to acquire prescriptive rights of light after 20 years;
2. Abolishing the ability to obtain an injunction for interference with private rights of light where the impact of loss of light has already been considered by the Local Planning Authority or other body (as is generally the case where there is neighbouring residential properties); and
3. Limiting damages for interference with private rights of light to assessment on a compensatory rather than a negotiating basis.

Proposal to meet and invitation to members to collaborate

We proposed having a meeting with the Ministry of Housing, Communities and Local Government in order to discuss the proposals further. We will continue to make contact with the Ministry to see if the proposals can be explored further or indeed implemented. 

We would welcome any thoughts PLA members may have in relation to these proposals. 

Eloise Illingworth

Macfarlanes LLP

Eloise.illingworth@macfarlanes.com