Injunction Granted For Breach Of A Right Of Light AFTER Practical Completion

The High Court has delivered a stark warning to developers. "Press ahead with a development without dealing with rights of light issues at your peril." Contrary to long held opinion that an injunction would not be granted for an infringement of a right of light against a completed building, the Court found that damages were not an adequate remedy based on the facts of a recent case and instead granted an injunction. That injunction resulted in the developer re-designing and rebuilding part of their extension so as not to infringe the rights of light at a cost of £1-2 million.

The facts

The dominant land (i.e. the land benefiting from the right to light) was a five storey Victorian bank (the 'bank'). The servient land (i.e. the land burdened by the right) was across the road and six storeys high. The developer proposed to: refurbish the fourth floor; demolish and reconstruct the fifth floor; construct sixth and seventh floors and add an extension to the full eight storey height.

The developer was advised by a rights of light surveyor that the proposed development would infringe on the bank's rights. The developer sought the bank's agreement that they would not bring a claim and/or would agree damages.

The parties corresponded over an 18 month period but did not reach any agreement. The bank threatened to seek an injunction but did not issue proceedings. During this period the works were carried out and completed. Unusually the developer issued proceedings to clarify the position and the claim for an injunction was made in the counterclaim.

The law

The starting point is that:

"a claimant is, prima facie, entitled to an injunction against a person committing a wrongful act interfering with a legal right"

However, an injunction is an interim remedy and awarded prior to the Court deciding all of the issues in the case. Therefore, when a party makes an application for an injunction, that party must give an undertaking to pay damages sustained by the other party if it is subsequently determined by the Court at the final hearing that the party was not entitled to the relief granted.

Such an undertaking is onerous and substantial, perhaps this is a contributing factor as to why the Courts have seen relatively few injunctions of this nature.

The leading decision of Shelfer sets out four criteria to apply when considering whether damages should be awarded instead of an injunction. Those are:

The injury to the legal rights is small. The injury is...