Rights to light claim – Developer’s “un-neighbourly” conduct results in an injunction


Author: Amanda Hado-Bodfield


Overview

The Court of Appeal upheld an injunction against a developer sought by a neighbour whose right to light had been infringed by an external staircase which the developer had erected in breach of an undertaking it had given to the neighbour. The Court dismissed the developer’s appeal and held that, in the circumstances, the County Court had been entitled to grant an injunction requiring the developer to remove the staircase, rather than pay compensatory damages.

Facts

The development comprised a mixed-use ground floor café underneath residential flats. The developer erected a metal staircase to serve as a fire escape for the flats.

The neighbour was a restaurant owner next door and claimed that the new staircase obstructed the light to the restaurant’s kitchen windows and sought an injunction for the removal of the metal staircase.

The developer conceded that the staircase infringed the neighbour’s right to light.   The neighbour’s right to light claim was valued at just over £800 whereas the cost to the developer of removal and relocation of the staircase was circa £6,000. The County Court granted the injunction.

Court of Appeal decision: Scandia Care Ltd and another v Ottercroft Ltd (Unreported, 6 July 2016)

The developer appealed to the Court of Appeal to decide whether an injunction was unduly onerous and appropriate instead of damages in the circumstances.

The developer’s conduct of erecting the new staircase, when the neigbour’s premises were vacant, without prior notification to the neighbour, was considered un-neighbourly and disrespectful.  The Court took a dim view of the fact that the developer knew the staircase would infringe the neighbour’s light and went ahead regardless, even though the developer had given undertakings not to interfere with the neighbour’s light when the neighbour had threatened legal action.

The Court of Appeal ruled without even hearing from the neighbour’s legal team.

It concluded that an injunction was necessary not only to do justice to the neighbour but also to serve as a warning to others.

Impact on developers?

This decision does cause concern for developers as (1) an injunction was granted for a relatively minor impact caused by the erection of a fire-escape staircase which was essential under statutory regulations; and (2) the premises that suffered the loss of light were in commercial rather than residential use (the risk of an injunction is generally considered to be lower where residential premises are not affected). This case turned on the facts and the Courts placed great weight on the disregard for the undertakings previously given.

Developers should be very aware that their conduct will be scrutinised in court, and they must be able to demonstrate fair and reasonable conduct and behaviour towards neighbours to minimise the risk of an injunction where rights to light are infringed.

Amanda Hado-Bodfield, Senior Associate, Fladgate LLP (ahado-bodfield@fladgate.com)

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