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Development & Rights of Light: A reminder of potential pitfalls

01/12/2020

At a glance

Residential development is in growth mode, possibly bolstered by more supportive public policy. With that in mind, developers are reminded of the significance of the rights of neighbouring owners. These rights can stop development in its tracks, or even worse, result in new buildings having to be cut-back. This article focuses on rights of light, but other easements and covenants should not be overlooked, as they could similarly scupper construction.

The simple fact is that obtaining planning consent is not enough: It does not remove private property rights over other land, nor does an indemnity insurance policy. Affected titles (and any leases and deeds granted out of them) should be reviewed and rights of light surveyors appointed early in the project so that the developer is suitably-armed to take strategic proactive (or reactive) steps to address the injuries or nuisance it is causing, or will cause.

In 2014, the Supreme Court ruled in Lawrence v Fen Tigers: “Where a claimant has established that the defendant’s activities constitute a nuisance, prima facie the remedy to which he is entitled (in addition to damages for past nuisance) is an injunction to restrain the defendant from committing such nuisance in the future”. The case addressed a noise nuisance claim, but the same principles apply to rights of light. An injunction is a real risk.

We now have the more recent High Court nuisance case of Beaumont Business Centres v Florala Properties, which serves as a crucial reminder of the potentially significant ramifications of causing an injury to rights of light and the importance of carrying out due diligence and taking tactical advice.

In Beaumont, the claimant (a tenant of a building in The City of London which benefitted from rights of light), was awarded a (declaratory) injunction against the adjacent freehold owner, Florala. The decision is weighty because the loss was still actionable even though Florala had already completed the development and had let the building to a third party, additionally, the loss of light was small and in rooms which were already badly lit. The developer had, in the Court’s judgement, gone ahead with the development knowing of the risks and had acted in an unfair and unneighbourly manner. The injunction means that the developer can be required to decrease its building profile (by having to remove part of it) to reduce the rights of light injury.

Separately, although the injunction was binding on Florala, its tenant was not joined into the proceedings, and therefore the injunction was not binding on it. If the claimant didn’t elect to join the tenant into the proceedings, or a further injunction was not granted against the tenant, the claimant would be entitled to damages in lieu of an injunction (assessed at £350,000 (plus interest)).

In conclusion, when developing land, the developer should proceed on the basis that:

  • The remedy for breach is an injunction, and this should be its starting point.
  • Injunctions are a discretionary remedy and any “unneighbourly” or “high-handed” behaviour would go against the developer. Such conduct should be avoided.
  • Even where the loss of light is small or to a badly lit room, an injunction is a real risk.

Our real estate team has a great deal of experience in advising on rights of light (and other easements and covenants), including advising on titles, reviewing deeds and leases, and negotiating deeds of release. Get in touch with your usual Memery Crystal contact or the author Victoria Lowe below in case you have any queries.

Photo by Dimitry Anikin on Unsplash

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