Rights of light: issues raised in case law
All is revealed
23 November 2015
Paul Smith discusses the issues raised in recent rights to light cases
Generic ‘rules’ in relation to rights to light can be difficult to apply and each case needs to be considered on its merits. A number of recent cases have reinforced this view.
In 2010, HKRUK 2 (CHC) Ltd v Heaney was heard in the High Court. In this case, Marcus Heaney, the owner of the former Yorkshire Penny Bank in Leeds, established the precedent that the victim of a rights to light infringement could obtain an injunction to demolish the offending part of a neighbouring development.
Heaney had taken no legal action to prevent the developer's works taking place and the developer ended up seeking a declaration from the courts to which Heaney issued a counter claim. The court ordered the partial demolishing of the offending elements at a cost of several million pounds.
As is often the case, the claim was settled and no demolition works took place. Nevertheless, this was sufficient to cause alarm in the development industry and was a contributing factor in the extraction of ransom payments for the release of rights to light in the preceding years.
Figure 1: Rights to light are based on the Ancient Lights common law
In 2014, somewhat unexpectedly, the Supreme Court threw something of a lifeline to the industry in the shape of Coventry v Lawrence. This related to noise from a motocross track in Suffolk, rather than rights to light, and whether the noise constituted a legal nuisance.
The 5 Supreme Court Justices became involved in a convoluted discussion on how their decision in this case might affect the way a nuisance existed and the remedies for such interference. They also considered how this might affect other areas of nuisance, including rights to light.
Essentially, their view was that, while an injunction may remain the primary remedy they should not be awarded as a matter of course. Instead, a more wide-ranging, open minded approach should consider the fact of each case, i.e. the courts should use their discretion.
This suggested that damages might be awarded in lieu of an injunction on a more frequent basis in future. Other issues debated by the Justices included the effect of an injunction on third parties and the existence of a planning permission allowing the activity in question.
The case of Scott v Aimiuwu, decided on 18 February 2015 in the County Court of Central London, provided useful guidance on the basis on which damages against an injunction could be granted. In some respects, it has revised current thinking after Heaney.
Mr and Mrs Aimiuwu built a rear extension which interfered with the light to 4 windows in Mrs and Mrs Scott’s neighbouring property. The affected rooms were the garage, workshop, utility room and bathroom. Even though the Aimiuwus had proceeded with the works knowing that it was in the face of objections from their neighbours, the judge, Edward Cole of Falcon Chambers, awarded compensation of £30,000, plus £1,499 for other 'specific complaints' i.e. the temporary interference while scaffolding was erected.
The compensation was calculated using the traditional ‘area loss’ approach and the judge applied a multiplier of 2.5 to the book value figure of £12,000. The judge believed that the injury to the Scotts, in respect of the value of their home, was small and the use of the affected rooms was clearly influential in this decision.
In deciding against granting an injunction to amend the completed extension, the judge took into account that the Aimiuwus would need to move out to enable any required works to be undertaken.
A balanced view in calculating the level of compensation took into account the actions of the parties, diminution in value, reduction in amenity and increase in value of the ‘developed’ property.
This case provides a positive sign for developers: it is more favourable than Heaney and Regan v Paul in relation to guidance on when the courts will grant an injunction as opposed to damages. The fact that the development was an extension of a family home is clearly material; it is debatable whether a commercial development would be offered the same protection.
The case does mean that neighbours will be pressed into taking action far earlier should they wish to obtain an injunction, rather than pursuing a compensation claim. To some extent, it serves the purposes envisaged by the Law Commission’s report and the notice procedures it proposed.
Paul Smith is Director, Building Consultancy at GL Hearn
- Image © Paul Smith
- Related compentencies include Legal
- This feature is taken from the RICS Building surveying journal (October/November 2015)