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Right to light - injunction granted |
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In this case, a residential occupier was successful in getting an
injunction against a neighbouring developer, even though it meant that
part of the development had to be demolished. A long leaseholder
complained that the fourth floor penthouse of a new mixed-use
development would block one third of the light to the sitting room of his
maisonette and reduce its value by £5,500.
He lost in the High Court but
won in the CA, where it was held that the loss of light was not a small
infringement, and the £5,500 reduction in value was not a ‘small money
payment’. Nor did the court consider that the difference between that
amount and the cost to the developer if an injunction was granted
(£175,000) made it inequitable to grant an injunction. In any event, the
court made the point that the amount of any damages in lieu would be
linked to the value of the penthouse and would be substantial. In particular,
however, the court was not impressed with the developer’s conduct, in that
it was clear that he had taken a calculated risk in deciding to proceed after
the leaseholder’s initial complaint. As such, the court confirmed the longestablished
principles laid down in right to light cases by Shelfer [1895]:
- the presumption is that an injunction should be granted; that the
defendant cannot 'buy out' the claimant’s right to an injunction by
offering to pay damages;
- damages should only be awarded as an alternative in ‘very exceptional
circumstances’;
- relevant factors will include: whether the infringement is small; the
monetary value; whether it can adequately be compensated by a small
money payment; whether it would be oppressive to the defendant; or if
the claimant has indicated that he wants only money.
At one level, it is easy to distinguish this case from earlier decisions
because it involved residential property. Even if that distinction is
correct, it should be remembered that the proliferation of city living, and
the increase in high-density schemes, will inevitably lead to many similar
disputes. The best advice one can give at the moment is that:
- any admissible indication by the right-holder that the dispute could be
settled for compensation will almost certainly be fatal to any
injunction application;
- it is vital that the claimant is not seen to acquiesce in the
infringement of his right to light;
- once the infringement becomes apparent, a protest should be made
immediately. Careful thought must be given about whether to bring an
application or an interim injunction, or merely claim for a final
injunction with directions for expedition. The former will always be
more effective, but brings with it the risk of cross-undertakings as to
damages (if the injunction is not upheld);
- the behaviour of the developer will always be relevant. A high-handed
or unreasonable developer is far more likely to have an injunction
granted against him.
Finally, a note in the NLJ suggests that if a developer client is determined
to continue with works that might infringe legal rights, then one tactic –
which may at least crystallise the issue and is supported by some
authorities – would be to offer not to proceed, provided the potential
claimant gives a cross-undertaking in damages if proceedings establish that
there was no infringement of their rights. In practice, that may well deter
some potential claimants. For articles on Regan v Paul Properties [2006]
EWCA Civ 1319 see [2006] SJ 1518; [2006] NLJ 1868.
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January 2007 |
