In the High Court case, the owner of an office building had a right to light in respect of two windows. But, the judge held that to grant a mandatory injunction against a neighbouring developer would be oppressive and would create a loss to the developer out of all conceivable proportion to the loss suffered by the office owner. It would result in the demolition of part of the development – which would be unjust and inequitable. The injury to the office owner, although sufficient to be a nuisance, was small in the context of the building and could be adequately compensated by a small money payment. Moreover, the developer had not behaved unreasonably and tried to behave honestly with the office owner (who had failed to apply for an injunction at an early date, even though he had threatened to do).

This High Court decision reflects what most practitioners would have previously regarded the law to be, especially following Midtown [2005] where an injunction was refused in the context of a large office development even though the prospective injury was massive and the scheme had not started. Much emphasis was placed in that case on the fact that the right-holder would suffer no real loss (since he had his own plans for enormous redevelopment), that it involved commercial premises (where lights were used throughout the day) in a city centre. In general terms, this was seen as the green light for many developments that infringed rights to light, with most developers taking the view that they could simply buy their way out of trouble (with no real risk of there being an injunction). That approach has now been seriously questioned – at least so far as residential properties are concerned – by the CA (see our note below). For further details of the commercial case referred to above see Tamares v Fairpoint Properties [2006]. Source: Berwin Leighton Paisner. © Practical Lawyer