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The last few months has seen several clear indicators of a willingness by the courts to enforce property rights by way of injunction, rather than allowing the offender to buy-out the right (by simply having to pay damages).
This was particularly apparent in the CA’s decision in Regan [2006] where the occupier of a flat succeeded in a right to light claim against a developer who had demolished part of an erected building; even though the loss in value to the flat owner was only £5,500 (and the cost to the developer £175,000), the court took the view that this was not a ‘small’ infringement, and that the property owner should be entitled to enforce his rights (provided he had not acquiesced in the breach – for instance, through delay). The latest CA case involved a relatively minor infringement of a right of way; once again, an injunction, not damages, was awarded. What happened was that the claimant owned a house which had a right of way (on foot and vehicle) over some land. That land had become the headquarters of the local police, and they had subsequently redeveloped their site so as to substantially interfere with that right of way. In addition, a 20ft container prevented vehicle access, and left only a 1m gap for pedestrian access (plus, a one-way system would have prevented vehicular use of the right of way). The works had primarily been carried out in 1997 and 1998. The police argued that the claimants had been given prior notification of the works and that, in any event, the police had not fully appreciated the scope of the right of way. The claimants accepted that they had made little use of the right of way and did not start proceedings until 2001 (by which time the police had obtained planning permission and carried out their works). Accordingly, the police argued that the claimants’ remedy should be damages – on the basis that the infringement was small, and that they had acquiesced in the works. The trial judge disagreed and his decision was upheld by the CA. In his view, for the claimants to be entitled to damages (only) the police had to establish (i) that the injury was ‘small’ and (ii) that it would also be oppressive to grant an injunction. Given that the police had disregarded the claimants’ complaints, the CA agreed that it would not be oppressive or unjust to grant an injunction, despite the fact the claimants had made little use of the right of way and also had alternative means of accessing their property. Many will see this as a marginal decision. But, it does quite clearly underline the willingness of the CA to uphold the rights of the small landowner against a larger, developer, neighbour. At the same time, we would repeat the points we made in February: - 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;
- once the infringement becomes apparent, a protest should be made immediately;
- the behaviour of the neighbour (or developer) will always be relevant. A high-handed or unreasonable developer is far more likely to have an injunction granted against him, as is a neighbour who ignores the claimant’s concerns.
If a developer is faced with a troublesome claim then one tactic – which may at least crystallise the issue – is to offer to not proceed with the works, provided the potential claimant gives a cross-undertaking to pay damages if proceedings establish that there was no infringement of their rights. That may seem a heavy-handed approach, but it may make the rights-holder pause for thought. For the right of way case see Jacklin v Chief Constable of West Yorkshire [2007] EWCA Civ 181 (noted in Property Week 30 March 2007). © Practical Lawyer
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