RIGHTS OF LIGHT BILL [H.L.] (Hansard, 29 January 1959)

§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, in rising to commend this small Bill to your Lordships I cannot but reflect that it has been my duty, during the four and a half years which I have had the honour of serving your Lordships from this place, to move the Second Reading of a number of Bills of a singularly complex and indigestible nature. I should like to-day to pay tribute to the patient and attentive hearing which your Lordships have always been good enough to accord my attempts to expound these complicated and often obscure measures.
On glancing at this Rights of Light Bill your Lordships may have derived some comfort from its Title, and may reasonably have supposed that the matters with which it deals require very little illumination from its mover. I should not be too ready to adopt that view, because I fear that the law which it is proposed to amend by this Bill is, frankly, the law of specialists. There are, as some of your Lordships know, certain sets of Chambers in Lincoln's Inn which are known colloquially as "Light and Air Chambers." The penetration of light and air into those desirable premises is probably no greater 976 than into the Chambers of Mr. Serjeant Snubbin, of immortal memory; they are occupied, nevertheless, by lawyers who have devoted a lifetime to this somewhat esoteric field and, as I shall mention before I sit down, this Bill has been prepared with their skilled help and advice.
My Lords, the other thing I want to say by way of preliminary observation is this. Although its terms may not be as clear as daylight, the Bill deals with a very real and pressing need, arising out of the devastation caused in some of the big cities by bomb damage during the late war. We have also taken the opportunity of making some permanent improvements in the law.
Perhaps your Lordships would now find it convenient if I were to attempt to say a few sentences about the existing law, and then to tell your Lordships why we are bringing forward this measure. The law is that any substantial interference with a man's comfortable use and enjoyment of his home according to the usages of ordinary persons in the locality is actionable as a nuisance at common law. There is, however, a difference between enjoyment of freedom from noise and smell and the enjoyment of the access of light to one's windows. Unless a right to access of light becomes attached to one's property—by the acquisition of what is known as an easement of light—there is no right to be enforced. This stems from the general law with respect to land that—planning controls and building bye-laws apart—everyone may build upon or otherwise utilise his own property, regardless of the fact that it involves interference with the light which would otherwise reach the land and buildings of another person.
There is, therefore, no natural right to light automatically incident to one's property; it has to be acquired. And the two usual methods of acquiring it are, first, by uninterrupted enjoyment of a flow of light to one's windows for a stated period—what we lawyers call acquisition by prescription—or by agreement with the owner of the adjoining site. The owner or occupier of a building who wishes to claim a right to the continued enjoyment of the flow of light to his windows can do so if he can show that he has enjoyed the flow of light for an uninterrupted period of twenty years. That is laid down in the Prescription Act, 977 1832, which also provides that nothing short of a full year's break shall count as an interruption. So an indefeasible right to light in fact accrues after nineteen years.
Once a building has acquired rights of light the owner or occupier can, by appropriate action in the courts, prevent the erection on a neighbouring site of any structure which would reduce the amount of light he enjoys below that required for the ordinary uses of habitation or business to which his building is put. The owner of an empty site who does not wish to be hampered in his freedom to develop it by rights of light acquired against it will, therefore, normally have nineteen years in which he can obstruct the flow of that light by building or otherwise. If he fails to do so, his ability to build on his site may be seriously impaired.
Normally I would say that nineteen years is long enough to enable owners of undeveloped sites to protect their own rights, but an exceptional situation will shortly arise. Your Lordships will remember that the first of the heavy bombing took place in the late summer of 1940; therefore it will not be long before nineteen years will have elapsed and rights of light will begin to be acquired over bombed sites which are still empty. During the greater part of the last twenty years special factors have operated which have prevented or impeded reconstruction. From 1940 until the latter part of 1954 there have been statutory restrictions on building. These restrictions, and shortages of materials have, at times wholly, and at other times to varying degrees, prevented the rebuilding of bombed sites, so that there are to-day in the cities and townships of this country considerable numbers of such sites still awaiting reconstruction and now in danger of being seriously impeded in their redevelopment by adverse rights of light.
In these circumstances, I appointed, in March, 1957, a Committee, under the chairmanship of Mr. Justice Harman, to advise me on the size of this problem and the appropriate remedies. In their Report, which was published last July, the Committee make certain recommendations for the temporary extension of the twenty-year period of enjoyment which are implemented by Clause 1 of the Bill. The result will be that anyone wishing 978 to claim a right of light before the end of 1962 will have to rely on uninterrupted enjoyment of the access of light for a period of twenty-seven years instead of twenty years. The time between now and 1963 should be sufficient to enable the owners of the bombed sites either to develop them or to take the necessary steps, which I will mention a little later, to preserve their rights for the future. As the Harman Committee recommended, the proposed extension is not confined to bombed sites. It would not be reasonable to distinguish in this connection between bombed sites and other sites which were ripe for development or reconstruction at the outbreak, of the war and which have also remained undeveloped through circumstances outside the owners' control.
When, in July last, I told your Lordships of Her Majesty's Government's intention to introduce legislation giving effect to the Harman Committee's recommendations, I said that we proposed to let the extended period operate from the date of publication of the Report. Clause 1 accordingly applies to all claims to rights of light asserted in proceedings in the courts begun after the 14th July, 1958, the date of my announcement. Otherwise, the owners of neighbouring sites would be free at any time before this Bill comes into effect to defeat its provisions by seeking a declaration from the court that they already have a right of light on the strength of the twenty years' enjoyment under the present law. As is usually provided in modern legislation, the Bill will not, however, upset any final judgment given before it receives Royal Assent.
The clause, however, also operates retrospectively in an indirect way, which I want to bring to the attention of the House, because I am a firm opponent of retrospective operation in any form unless the case for it is overwhelming. Broadly, the effect of Clause 1 is that where the flow of light across a site to a neighbouring building did not commence until 1934, the owner of the site will yet be able to prevent a right of light accruing to that building. Rights of light which buildings have enjoyed for more than nineteen years will thus be liable to be disturbed, and the owners may in some cases suffer financial loss—for instance where the value of the 979 assumed right of light was reflected in the price recently paid in purchasing the building. I have mentioned this point specifically to your Lordships because it is one which has caused me considerable thought, and I should like to say that in adopting this view, I have followed the course suggested by the Harman Committee. Those of your Lordships who are interested in the matter will find that the Committee set out in paragraph 36 of their Report what I believe are very good reasons for this course.
My Lords, I now turn to permanent changes in the law which will be made by the remaining clauses of the Bill. Clauses 2 and 3 set up a system of registration of notices which will prevent the acquisition of rights of light. At present the owner of a site who wants to prevent the acquisition of such rights across his land must, if he cannot build before those rights accrue or induce his neighbours to forgo their rights by written agreement, erect a screen to cut off the neighbour's flow of light. These screens, sometimes somewhat appropriately and poetically called by my profession "spite screens", are at best unsightly and an unproductive use of labour and materials. Moreover, their erection is subject to planning permission which, since the structure is normally æstlietically objectionable, ought not to be granted and which yet cannot be refused without depriving the owner of the site of his ability ultimately to develop his own land. The Bill will provide a simple alternative to the crude remedy of the screen by setting up a system for the registration in the register of local land charges of notices, which will have the same effect in law as the erection of such a structure. A notice registered under the Bill will have, in the same way as a screen has at present, to be in existence for a year in order to be effective. Clause 3 accordingly provides that those likely to be affected shall be given adequate notice of the registration, so that they may, if they wish, challenge it in time by action in the courts.
I do not think I need detain your Lordships with many observations on the remaining clauses of the Bill, except for a few words on Clause 4. That clause, which provides for the registration of agreements permitting the obstruction of access of light, is not based on anything 980 in the Report, but is intended simply to prevent the system of registration from being by-passed. The object is to enable purchasers to discover, by searching the register, whether the flow of light is enjoyed under a written agreement, because, if it is, an easement of light does not accrue. But purchasers ought to be able to find out the true position, and Clause 4 accordingly makes unregistered agreements of no effect against them.
Before I conclude my commendation of the Bill to your Lordships, I should like most sincerely to pay a tribute to the work of the Committee whose labours will, I hope, bear fruit when this Bill is enacted. Theirs has been the difficult task of assessing the need and finding the best way to meet it, and I think that we owe them a debt of gratitude for the way they have carried it out. I remember so well that, when I was a Minister and a Law Officer of the Crown during the war years, with all the varying circumstances and all the measures we had to take, one was conscious of banking up during that time needs and rights which would have to be preserved in order to do equity after the emergency period had passed. This, as I said to your Lordships, is a relatively small problem, but it is a very real problem caused by the bombing, and I am most grateful to Mr. Justice Harman and his colleagues for doing the work so well. I believe that this Bill combines the virtues of meeting an immediate problem and of making a lasting improvement. I hope that your Lordships will approve of the objects we are trying to achieve and of the methods by which we shall do so. I beg to move that this Bill be read a second time.

§ LORD SILKIN
My Lords, I should like to begin by associating myself wholeheartedly with the concluding remarks of the noble and learned Viscount. We do indeed owe a great debt of gratitude to those who for the benefit of the community give of their services and of their skill in, very often, dull and complex matters. It is right that those services should be fully and handsomely appreciated. In this particular case the Committee presided over by Mr. Justice Harman have acted not only with great skill but with promptness. They were 981 able to produce a Report on this most difficult matter within a period of just over a year, and we are very grateful to them for it.
I should like to include in those thanks our thanks to the organisations and individuals who took the trouble to give evidence before them. As the noble and learned Viscount has explained, this is a matter which is clear to a very limited number of people; and the organisations which took the trouble to give evidence must have been put to a great deal of trouble and carried out a good deal of research in order to enable them to be of assistance; and, of course, without that assistance, without the evidence produced to the Committee, the Committee would have been very much hampered and restricted in their efforts. I refer particularly to the Law Society and the Bar Council, to the Surveyors' Institutes, to the Architects, to the Auctioneers and Estate Agents' organisation, to the local authorities, and to the others who gave oral evidence. All of them in their way have contributed to the production of this Report in fairly good time, and I am sure the House would wish them all to be included in the expression of thanks uttered by the noble and learned Viscount.
While I am thanking them, I should like to thank the noble and learned Viscount himself for a very clear explanation of this most difficult subject. I suppose it would be too much to hope that his explanation was apparent to every single Member of the House who is present, but to those who have some knowledge of the law—and I cannot claim to have any knowledge at all on this particular subject—coupled with the Bill and the Report of the Committee, I think that what it is intended to do and what is the evil that it is proposed to remedy are now quite clear. So far as I am able to judge, the provisions of the Bill do ample justice to the difficulty which it is proposed to put right both temporarily and permanently; and, so far as I am concerned, and, I am sure, so far as every Member of this House is concerned, we are willing to give the Bill a Second Reading.
There may be some points of detail—for instance, as to whether the times are adequate. One of my noble friends has pointed out that at the end of a year a person's rights come to an end. I am not sure whether a year is sufficient; his attention may not have been drawn to 982 the particular claim that is being made. But these are Committee points, and it may well be that in Committee there will be a case for having a discussion about them and possibly making some variation of the terms. I can say certainly that the substitution of a registered charge for a screen is a great improvement as regards both the amenities of this country and the clarity of the purpose. The purpose of a screen is not always clear, but there can be no ambiguity or doubt about a registered charge, and it is undoubtedly a great advantage. So I welcome this Bill and the speed with which the Government have acted; and, subject to any Amendments we may desire to put forward at a later stage, I hope that this Bill will go forward.

§ THE LORD CHANCELLOR
My Lords, I am grateful to the noble Lord, Lord Silkin, for what he has said and I should like to associate myself with the thanks to the witnesses and local authorities which he mentioned, With regard to any doubts, I need hardly say that if anyone has any point—whether it is a legal point or a point of another kind—and would care either to write to me or to come and see me before the Committee stage, I should be very pleased to discuss it with either the noble Lord or with any friend of his who is interested. I am very grateful to him for what he has said.