The case of Regan v Paul Properties DPF No 1 Ltd & ors [2006] EWHC 1941 caused much excitement, because it was one of those rare cases in which a homeowner obtained an injunction in respect of a right to light breach by a neighbouring developer. The end result was that the developer had to remove part of its building – at considerable cost.

Some commentators thought the injunction in that case had only been granted because it involved a home (ie a residential claimant). Now, however, we have a similar decision involving a commercial occupier. Not surprisingly, the decision has caused much concern amongst developers.

The case involved a six-storey office building in Leeds, which had been bought in 2007 with planning permission for the addition of two further floors. It was clear that this work would interfere with the light to a neighbouring office building, but the discussions with the neighbour got nowhere. The building was redeveloped in 2009, and then the owner sought legal clarification by asking for a declaration that the neighbour had no redress. In response, the neighbour counter-claimed for an injunction that the additional storeys be pulled down, in so far as they infringed on his right of light. To the surprise of many commentators, he won.

The court’s starting point was that once an infringement of light had been established, the neighbour was entitled to an injunction, unless the infringer could persuade the court to exercise its discretion to award damages instead. That finding is, in itself, uncontroversial, although it has generally been assumed that in exercising that discretion the court will be relatively sympathetic to developers. In this case, however, the judge seemed to consider that his discretion was far narrower when he applied the four tests set out in the leading case of Shelfer [1895], where it was said that an injunction should not be granted if:

the injury to the claimant’s right is small; and

the injury is capable of being estimated in money; and

the injury can be adequately compensated by a small money payment; and

an injunction would be oppressive.

In the judge’s view, the injury here was not ‘small’. In his view, it amounted to ‘real damage of a kind for which the defendant should not be expected to content himself with a money payment’ and thus it was ‘not small’. In addition, the judge took the view that if he had to put a money value on the claim then it would be c£225,000; so, whilst the injury was ‘capable of being estimated in money’, in his view the level of damages would not be ‘small’. Moreover, it would not be ‘oppressive’ to grant an injunction since the remedial costs (£1m-£2m) had to be seen in the context of the total cost of redevelopment (£35m). Thus, the defendant failed to satisfy the first, third, and fourth of the Shelfer [1895] criteria.

The final point of note is that the judge was not particularly concerned about the neighbour’s delay in bringing proceedings to protect his right to light. Thus, at the end of the day, we have a decision which is surprisingly harsh. Indeed, we suspect few commentators would have predicted an injunction in these circumstances. Whilst many predict that this High Court decision will be successfully appealed, it is an indicator of the increasing trend in the law to strengthen the bargaining position of those with the benefit of rights of light. Certainly, it is a reminder to developers of the importance of resolving potential rights of light claims before building work commences. The days when it could be safely assumed that an injunction would not be granted in respect of a completed building are gone. See commentary on HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch) in [2010] 257 PLJ 10; [2010] NLJ 1372.