A light touch for rights of light injunctions

Developers that have grown increasingly concerned with courts awarding injunctions to prevent developments from interfering with the right to light of neighbouring buildings can let out a small sigh of relief following the judgment of the Supreme Court in the recent case of Coventry (t/a RDC Promotions) v Lawrence [2014] UKSC 13, which dealt with the noise nuisance caused by a motocross track.

In deciding this case, the court reversed the trend seen in the most recent major cases on rights of light (Regan v Paul Properties DPF Properties No 1 Ltd [2007] and HKRUK II (CHC) Limited v Heaney [2010]) that an injunction to prevent or, in the Heaney case, demolish a development was the correct remedy unless four conditions (set out in a case heard in 1895), were fully satisfied.

In the Coventry case, the court stated that this test was "out of date" and expressed concern that it had been followed so "slavishly" in the Regan v Paul and Heaney cases.

While the court upheld the injunction, it referred the matter back to the previous court stating that courts should use their discretion to determine if the damage could be adequately compensated by a payment. The level of the compensation likely to be payable will vary according to the loss suffered by the neighbouring property, but may well be small in the context of the market value of the proposed development.

Going forward, developers can hopefully feel more confident that an adjoining owner may not be able to hold up development with the threat of preventing it in order to extract a larger payment for their co-operation, compared to before when an injunction had a sense of inevitability. Now, a developer may more easily assess the likely effect on its plans, since the potential level of compensation payable can be quantified.

It remains to be seen what effect the Coventry case will actually have. While injunctions might become rarer, they are still very much a live issue but perhaps not so inevitable.

Whatever occurs, there is still risk where your proposed development encroaches on a neighbouring owner's right to light.

Stewart Title Limited has extensive experience in dealing with rights of light issues. Our knowledgeable underwriters can work with your development team to write a policy to cover the potential liability of damages or an injunction preventing development, helping developers proceed quickly and with reduced risk.

Robert Kelly is Commercial Business Development Manager at Stewart Title Limited

For more details, please contact him on robert.kelly@stewart.com or on 07415 240 703 to discuss this or any other title defect affecting your deal

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