Rights to light : a new ray shining through?

Rights to light : a new ray shining through?

There are currently proposals with the Law Commission for reforming the rights of light laws, but at this stage, no real progress seems to have been made.  

In the absence of the law changing via the Law Commission’s proposals, the court has taken its own first steps toward potentially providing developers with more flexibility when it comes to rights of light. 

In Coventry v Lawrence (2014), a claim which related to noise nuisance rather than rights of light, the court gave an indication that it will now move away from granting an injunction and will instead see the appropriate remedy as being damages.

In previous times, and in particular in the Heaney case (2010), the court seemed to be on the side of those owning a property that was affected by development and in that case the developer was ordered to adjust his building despite the projected cost of doing so being somewhere between £1-2m.

In the Coventry v Lawrence case, the courts took a more flexible approach when assessing whether damages was the appropriate remedy instead of an injunction. All the members of the Supreme Court felt that insofar as there was any failure to meet all four of the conditions land down by the Court in a previous case (known as the “Shelfer Condition”) this should not mean the automatic grant of an injunction.  

The Coventry case leaves many loose ends in terms of how the Court’s discretion to award an injunction should be used. Lord Neuberger was very clear that the court’s discretion had to be exercised according to the relevant circumstances of the case and that there should be no prior inclination towards an injunction. There was discussion as to how the issue of damages should be considered and whether insofar as damages were awarded in lieu of an injunction the complainant should then be entitled to share in the benefit to the infringing party of overriding the relevant property rights. This is clearly an interesting area, and one that seems certain to be central to future cases insofar as developers meet challenges centred around injunctive relief. The Supreme Court specifically mentions its view that rights of light cases are potentially, a unique class of case.  

Following the Coventry decision, parties considering rights of light issues will need to consider the potentially reduced prospect of obtaining an injunction and the uncertainty around how damages will now be calculated. No doubt this will soon be tested in the courts as the property market continues to recover and thrive and development activity increases.

For further information please contact Andrew Baines, Partner and Head of the Property Litigation team at andrew.baines@michelmores.com