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Injunctions can still be granted in rights to light cases
Real Insights - Property Update

Real Insights - Property Update

Author
Catherine Rolfe
Date
30 September 2016

Earlier this summer, developers had a timely reminder that their conduct will come under scrutiny when dealing with adjoining owners’ rights to light.


Injunctions can still be granted in rights to light cases

Earlier this summer, developers had a timely reminder that their conduct will come under scrutiny when dealing with adjoining owners’ rights to light.

In the case of Ottercroft v Scandia, a developer was ordered to take down a fire escape which infringed a neighbour's light at a cost of around £6,000, despite the deprivation of light itself being valued at only £886.

Neighbour dispute: rights to light

The defendant was engaged in developing his property.  He originally proposed to build a store room within inches of the neighbouring restaurant's windows. Following initial objections, the defendant gave undertakings not to build in a way that would interfere with the restaurant's rights of light. He nonetheless then built a metal fire escape staircase which obstructed light to the restaurant's kitchen.

The restaurant owner became the claimant in the legal action that inevitably followed.  The defendant argued that the injury to the claimant's light was relatively minor, and therefore the claimant should at most be awarded a small sum in damages.

In the County Court, the restaurant owner was awarded an injunction for the relocation of the staircase rather than damages, based on the defendant's ‘high handed’ and ‘unneighbourly’ conduct. The defendant was aware at all times that the claimant's light would be impacted, yet no significant attempt was made to contact the restaurant owner, and the work was deliberately done when the premises were vacant and less conspicuous.  Most importantly, the defendant carried out the work in breach of the undertakings which he had given.

The Court of Appeal was so unimpressed with the defendant's conduct that judgment affirming the decision was handed down halfway through the hearing, without the Court even needing to hear from the claimant's legal team.

Background and comment

This was one of the first rights of light cases since Coventry v Lawrence in 2014, when the Supreme Court had suggested a more flexible approach should be taken to the grant of damages instead of an injunction.  On this basis, we might have expected an award of damages, given the minor infringement to light, but this was overridden by the defendant's behaviour.

While the outcome at first seems dramatic, the case turned entirely on the facts and the result was not unexpected in light of the developer's poor conduct, particularly the breach of undertaking.  

The emphasis on parties' conduct comes as no surprise.  When the court orders damages in lieu of an injunction, the developer is effectively allowed to compulsorily purchase the neighbour's rights.  It is therefore essential to have regard to the rights of neighbouring property owners when considering development, and to ensure that even minor infringements of light are treated with respect.