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Right of light – Injunctions

Nitin Khandhia

BTMK

The high point of granting injunctions for breach of a right of light was Heaney (2010). In that case, the claimant had not taken legal proceedings to stop the works, and had effectively forced the developer of the offending building to take the legal initiative. The claimant’s building was offices and a function venue and it merely suffered what in most reasonable views would count as very little financial loss. Despite that, the court ordered the partial demolition of the offending building at a cost running into millions (although the claim was later settled and demolition avoided).

The Supreme Court seemed to have a change of approach in Coventry (2014) by suggesting that the 19th century guidelines applied in Heaney and similar cases were being interpreted too literally by the courts. Those guidelines had suggested that an injunction would be granted in nuisance cases except in very limited situations, but the Supreme Court disapproved of that approach, while the default position should remain that an injunction should be granted courts should apply a more flexible approach, taking into account all the circumstances. It should however be noted that the few reported decisions since then have all seen injunctions granted with the indication being that the courts are not going to be deterred from granting injunctions by the more flexible approach advocated by the Supreme Court.

However, to balance the books we now have a county court right of light case, in which an injunction was not granted. In essence, the case involved house owners who had built a substantial rear extension which had interfered with the light to four windows in the flank wall of the neighbouring house. They had proceeded with the works despite the objections of the neighbours, who then sought an injunction requiring the extension to be cut back by some 92 square metres (although they had not sought any urgent injunction to prevent the works proceeding). The court refused an injunction and awarded damages of £31,000 on the basis that an injunction requiring demolition works would be oppressive and punitive (whereas the court’s purpose should be compensatory or remedial). Importantly, the interference in light was only to secondary accommodation (i.e. a garage workshop, plus the utility room and bathroom). That could be adequately compensated by an award of damages, although matters might be different if the interference was to a living room and bedroom. On the facts, the property owners had mistakenly thought they were entitled to proceed because they had planning permission (plus expert evidence that the right of light interference was not material). So while the property owners had underplayed the significance of the works, and had gone ahead in the face of objections from their neighbours, it would still be oppressive to grant an injunction. Moreover damages should not be based on the share of profits, but on what reasonable parties would have negotiated to settle the matter at an early stage. The book value of the loss was about £12,000 but the court applied a 2.5 multiplier and awarded £30,000 (plus £1500 compensation for the temporary disruption caused by scaffolding).

Cases of this sort are always fact dependent. But the decision should be of reassurance to developers provided the interference is relatively small, and is not to primary residential accommodation. On the other hand, the court was clearly influenced by the “oppressive” consequences that would have resulted from ordering the demolition of part of the extension, and the clear message to those who are objecting to proposed development is the importance of taking interim injunction proceedings.

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