Obtaining An Injunction To Protect Rights To Light Following The High Court Decision In Heaney

Hkruk II (CHC) Limited v Marcus Alexander Heaney [2010] EWHC 2245 (Ch) is about a land owner who obtains an injunction against a developer to protect his rights to light. It revolves around two well-known buildings in Leeds city centre; the old Yorkshire Penny Bank building owned by Mr Heaney and a new building known as Toronto Square owned by Highcross (the developers). The case was due to be heard by the Court of Appeal this year but it has now settled so the first instance decision of Judge Langan QC stands as the current law in this area. It has surprised many industry professionals and has even spearheaded a consultation by the Law Commission on the issue which runs from 18 February 2013 to 16 May 2013 but has anything really changed? And what lessons should developers take from Heaney?

Background

Highcross acquired the site on which Toronto Square now stands in 2007 for £18,750,000 (which was reduced from a previously higher figure by £350,000 to allow for any potential rights to light claims) with a view to re-developing the site. Highcross planned to construct a sixth and seventh floor to the building and they had been informed that these plans amounted to an actionable loss of light in relation to the Yorkshire Penny Bank building.

Correspondence was exchanged between the parties during late 2007 and 2008 with a view to reaching a commercial settlement. However, these discussions were not successful and Mr Heaney instructed Pinsent Masons in late 2008 who, on their client's behalf, threatened to obtain a High Court injunction. Shoosmiths, acting for Highcross, queried whether an injunction would be available in this scenario. Silence descended for almost eight months (save for a brief exchange in February 2009) and the building work continued at a pace.

The building works were completed on 10 July 2009 following which Shoosmiths on 19 August 2009, rather unusually, issued proceedings to seek a declaration:

that Mr Heaney had waived his right to obtain an injunction; and as to what the amount of damages payable to Mr Heaney should be. Mr Heaney counterclaimed for an injunction.

The Law

The general rule is that the remedy for the infringement of a right to light is an injunction. This rule is, however, not without exception and the court has discretion in deciding whether or not to grant an injunction. The key case, notwithstanding Heaney, remains Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 which was decided by...