The law in relation to rights of light is developing (pardon the pun!) and it’s landowners who are coming out the winners as they gain greater protection.
If you are a developer, this can represent yet another obstacle in an already challenging market.
Rights of Light
A landowner can acquire a right to light either ‘expressly’ (in a Deed or some other legal document) or ‘impliedly’ (by enjoying it for a period of twenty years or more (known as ‘prescription’)). Developers must proceed with caution where their building may adversely affect these rights.
The Court’s Approach to Infringement – Damages v Injunction?
In dealing with these types of cases, the Courts can either award injunctions to prevent infringement of rights to light, or award damages to compensate landowners for the infringement. This is known as ‘damages in lieu of an injunction’.
An injunction can have serious consequences such as stopping the construction of the offending building or ordering that one already built is demolished.
Developers will seek to persuade a court that damages is most appropriate remedy, but in the more recent case of Regan v Paul Properties Ltd (‘Regan’), and applied in HXRUK v Heaney (‘Heaney’), the Court of Appeal has shown reluctance to make this award.
Injunction – Factors
Instead, there is now a trend towards the grant of an injunction. The Court, in making its decision in the above cases considered the following factors:
whether the injury to the neighbouring landowner’s legal rights was small;
whether the injury could be estimated in money;
- whether the injury could be adequately compensated by a small monetary payment;
- whether it would be oppressive to the developer to grant an injunction;
- whether the neighbouring landowner had indicated that he only wanted the money;
- whether the conduct of the neighbouring landowner rendered it unjust to give him more than financial relief; and
- whether there were any other circumstances that justified the refusal of the injunction.
These factors appear to be being applied (by the Courts) in landowners’ favour. For example, the Court took the view in Regan that the focus is on the consequence of the obstruction and the detrimental effect this would have on the neighbouring landowner’s enjoyment of natural light in his living room, not on the amount of light left after the infringement. It was concluded that a loss of light by one third in his living room was not ‘small’ in this case.
Additionally, in considering whether the grant of an injunction would be oppressive to a developer, the fact that there would be serious consequences (such as remedial costs, loss of value and potential planning and building regulation issues), often are not seen to be enough to sway the Court in favour of an award of damages.
The Recent Case of Heaney
For example, in Heaney, the developer, HXRUK’s losses would have been £1,408,000 and the landowner; Heaney’s losses would have been between £18,755 and £80,771.25 (less than 2% of its capital value) but the judge found in landowner Heaney’s favour. Further, the cost of removing the parts of the building that impeded Heaney’s rights to light was between £1.1 million and £2.5 million. The Court’s reasoning behind this decision was that the infringement of Heaney’s rights was neither trivial nor inadvertent and that HXRUK had continued building despite being aware of the infringement of Heaney’s rights. The Court took the stance that although it would have been less profitable, HXRUK could have reduced the dimensions of the building to prevent this, but chose not to.
It can be concluded, therefore, that the current approach is that unless there are ‘very exceptional circumstances’, an injunction will be granted.
As a developer, before embarking on any project, you must consider neighbouring buildings and who may have rights. Once development starts, do not be dismissive of complaints of reduction in light from neighbours. Continuing to build and ignoring such issues could, in light (again pardon the pun!) of recent case law be an expensive decision.
At Linder Myers, we have a breadth of expertise in property development and property litigation. Whatever your position, should you be contemplating a development or have received a complaint we can offer legal and practical advice. Don’t ignore the problem – contact us today for a ‘no obligations’ consultation.Find out more about our Commercial Property department