Alan Massenhove, partner at Sykes Anderson LLP’s Litigation And Dispute Resolution Department discusses the impact of a recent Court of Appeal case on the established approach to disputes involving rights to light.
Please note that this area of the law is a complex subject and you should not take or refrain from taking any step without full legal advice on your particular circumstances. The content of this article is of a general nature and no liability is accepted in connection with it or if any reliance is placed on it.
The Problem
The right to light and air is a right which has caused tremendous difficulties for developers and property companies historically. It is a right which can automatically attach to properties unless it is specifically excluded. There are a number of ways in which the right can be claimed, including by prescription in respect of properties more than 20 years old and it is not always apparent whether or not a claim is valid without detailed investigation of the history of the property.
The right to light allows property owners the right to object to activities on neighbouring land which would prevent or diminish the access to light and air which the property enjoyed prior to the activity taking place. This is primarily of concern for developers as, by its very nature, development of land will have some impact on the right to light and air enjoyed by established neighbouring properties. Owners of Leylandii hedges have also had their days in court (and the national press) in this respect!
Modern Property Development
The current trend for developing relatively small parcels of land in built up areas and compensating for the small footprint of the building by developing upwards is only likely to lead to additional claims of this nature, particularly in areas where existing properties are generally two or three storey buildings.
The existence of a right to light which may be infringed by a development is very difficult to ascertain during the planning process. Very often, in built up areas, rights to light are expressly excluded so that future development of neighbouring properties is not restricted but, in the absence of a detailed review of properties which may be affected by the development – which is impractical – developers may be playing a guessing game.
Competing Considerations
The right to light is not a new legal issue and developers may consider (and traditionally have considered) that a potential award of damages is a small price to pay in view of the booming property market and the profit likely to be made. A recent case in the Court of Appeal has however been used as an opportunity to reprimand the lower courts for their approach to injunctions in recent right to light cases. The Court of Appeal has emphasised that an injunction preventing the right to light being infringed is the primary appropriate remedy. The effect of this decision is that courts should usually order the developers to refrain from proceeding or issue an injunction forcing the demolition or alteration of the building so that the rights to light are not infringed.
Developers may well have taken the view that if they finish the building the risk that they will be ordered to demolish it due to a breach of rights to light is very slim. This has traditionally been the approach of the courts. The general rule for the courts in considering whether or not to grant an injunction is to assess in whose favour the balance of convenience lies and to award damages as an alternative option if the balance lies in favour of the developer. It has been incredibly rare for the courts to find that the balance of convenience is in favour of the claimant as this would mean demolishing or substantially altering the building which is usually complete.
This approach may now have to be reconsidered. Although in the recent Court of Appeal case, the developer had been notified at a very early stage that the proposed development infringed the claimant’s right to light and the developer disregarded the notification, it is clear that the courts have not been approaching these cases appropriately so that advice based on existing case law prior to this decision may well need to be reviewed.
The Way Forward
Developers need to treat notifications of possible claims with extreme caution and may need to consider taking a pro active approach by applying to the court for a declaration that the right to light is not infringed. The potential worst case scenario of having to substantially change a finished building and pay the legal costs of a successful claimant must be now considered a real possibility, particularly in cases where the developer had early knowledge of potential infringement.
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