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Last year’s decision in Midtown [2005] was seen by many as a retreat from
the longstanding principles about granting injunctions for right to light
cases. There, a developer was allowed to proceed with the erection of a
large building, even though it was in clear breach of right to light restrictive
covenants.
The key point was that the court granted damages, rather than
awarding an injunction, with much emphasis being placed the fact that this
was a development in the middle of the City. As such, it was seen as a sign
of changing times – that damages, not an injunction, should be the normal
remedy when dealing with right to light issues in developed, urban, areas.
Needless to say, that decision has encouraged many developers to adopt
a more aggressive attitude towards existing rights to light (ie simply go
ahead with the development, in the face of opposition, knowing that the
likely outcome will merely be a damages award).
However, it may be time for a rethink. A recent CA decision involved the
owner of a maisonette who was concerned about the erection of a
penthouse on a building across the road. He contacted the developers a
full five months before the development began, and both sides instructed
surveyors who were unable to agree. In the end, the developers simply went
ahead but the owner of the maisonette persevered and sought an
injunction. He lost in the High Court, with the judge taking the view that it
was for the owner of the maisonette to show that damages were not an
adequate remedy (ie the onus was on him). But, that decision was
overturned by the CA which took an opposite view – the starting point should be, prima facie, that the claimant is entitled to the injunction. The
court’s discretion to award damages is not a way of allowing a defendant
to legalise ‘wrongful acts’ by simply paying money and the court should not
be used as way of simply ‘buying out’ existing legal rights. Moreover, the
discretion to award damages should not be used ‘except in very exceptional
circumstances’. Looking at all the facts of the case (in particular, the
attitude of the developers, and the undoubted interference with the
claimant’s right to light) the court decided an injunction was appropriate –
even though it would cost the developer a significant amount (£175,000)
to carry out the remedial works.
The decision is a clear warning to developers that they should not see
Midtown [2005] as an encouragement to ride roughshod over rights to
light, in the knowledge that they can eventually buy-out those rights by
paying damages. As a note from practicallaw.com puts it: the decision in
this case redressed the balance and will cause developers to consider,
very carefully, how they should act following genuine complaints of a
reduction in light from neighbours. Continuing with the development, in
the absence of agreement with affected parties, could be a very
expensive option. Regan v Paul Properties [2006] EWCA Civ 1319.
Source: www.practicallaw.com (subscription service).
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