The court was prepared to grant an injunction requiring a development that interfered with rights to light to be cut back.
The court was prepared to grant an injunction requiring a development that interfered with rights to light to be cut back.
In April 2015, a connected company of the claimant (BL) granted a lease of an office building that it owned to the claimant (BB) for 15 years (with options to renew) and then sold the freehold to an institutional purchaser based in Luxembourg (D). The defendant (FP) owned the property immediately to the north of BB’s property.
At the same time as entering into the lease, D, BL and BB also entered into a ‘rights of light’ deed which allowed BL to retain all rights of light claims for increases in height in FP’s property of up to 11.25 metres. If the development was higher than 11.25 metres, the rights belonged to D.
In May 2015, FP obtained planning permission to use its property as an apart-hotel. That involved building an extension into a lightwell which it owned (and which adjoined BB’s property) and increasing the height of one of the elevations overlooking the lightwell. In July 2016, FP offered to settle any rights to light claim for £155,000, but withdrew that offer when it became aware of the rights of light deed. FP argued that this deed showed that BL was only concerned about a ransom payment, rather than with preserving light to BB’s building.
FP started its works in July 2017 (after acquiring another adjoining building and obtaining revised planning permissions) and in February 2018, whilst the works were still in progress, BB sought an injunction (or alternatively damages) against FP in nuisance for the wrongful interference with its rights to light.
It was common ground by the end of the trial that all the windows from the first to the fourth floors of BB’s property (except one) had acquired a prescriptive right to light pursuant to section 3 of the Prescription Act 1832.
In the case of Coventry v Lawrence [2014] UKSC 13, the Supreme Court rejected the application of the previous rigid legal tests applied to determine whether damages should be awarded in lieu of an injunction when a property right has been interfered with. Instead, the court should have an unfettered discretion to award damages in lieu of an injunction where the facts of the case merit it. Despite this, an injunction remains the primary remedy in the court’s armoury and the onus remains on a developer to show why it should not be granted. This case is a timely reminder of that principle and acts as a stark warning to developers of the risk in proceeding with a development which will interfere with another party’s property rights.
Professional Development Lawyer
david.harris@brownejacobson.com
+44 (0)115 934 2019