A noise nuisance claim last year against the Fen Tigers speedway stadium seemed to have changed the landscape for rights to light disputes.
The connection isn’t obvious, but the Supreme Court's ruling in Coventry v Lawrence (2014) was eagerly analysed by rights of light surveyors and property professionals, as readers of our past bulletins will remember.
In the Coventry case, motorbike racing activities were causing nuisance to local residents. Under the law at the time, one would have expected an injunction ordering the activities to cease.
However, the Supreme Court said injunctions should no longer be automatic. Judges should consider all the circumstances, such as the effect of an injunction on the defendant's business, and be prepared to award damages instead.
A new landscape for rights of light?
Before Coventry, the best-known case on rights to light had been Heaney (2010), when a developer was ordered to demolish part of a building in Leeds which obstructed a neighbour's light.
We now have the first post-Coventry case showing how courts will apply the new guidance in rights to light cases. In Scott v Aimiuwu (2015), the defendants built an extension to their house in Potters Bar which interfered with light to windows in the side elevation of the house next door.
The county court refused an injunction, ordering a damages payment instead. Interference with the neighbours' light was actionable, but did not affect living rooms or bedrooms, and the defendants had mistakenly thought they were entitled to go ahead with the works. The judge concluded that ordering the completed extension to be cut back would be oppressive.
It is worth mentioning that the damages award was based not on a share of the defendants' profit, but on what reasonable parties would have negotiated to settle at an early stage. This meant the claimants received £31,500 - possibly less than they were expecting.
No carte blanche to breach neighbours' rights
Developers will be encouraged by the new approach, but it is not a one-way street. In another recent case, a defendant started building a new house in breach of a restrictive covenant, seriously affecting the neighbouring property. The county court judge decided the breach was deliberate, and granted an injunction ordering all works to be removed.
So the parties’ behaviour is still crucial. For a developer, open consultation with neighbours will minimise the chances of an injunction, while the neighbours must show they have made their objections known to the developer at an early stage.
Johnny Kelly is an associate and professional support lawyer in our Commercial Real Estate team.