Loss of light can be a major irritation and the law provides two remedies where it occurs. The usual remedy is for the developer of the structure responsible for the loss of light to make a payment to the person whose property’s light is impaired. The other, less commonly used, remedy is for an injunction to be granted which prevents the loss of light. This remedy is clearly highly disruptive to a development and is rarely used, unless by way of a prohibition of a development which has not already taken place.
An injunction can order the removal of the cause of the loss of light in certain circumstances, however. Normally, an injunction will only be granted where:
- the injury to the rights of the adjoining property is not small;
- the value of the injury to the rights is difficult to estimate in money or compensate for by the payment of money; and
- the granting of an injunction would not be oppressive.
However, the court’s reluctance to use injunctive relief should not be relied upon by developers, as a recent case shows.
The case was not a straightforward application for injunctive relief against a developer, but was brought by the developer of an office block to confirm the legal position with regard to a challenge for ‘taking the light’ of an adjacent property.
The developer of the office block built it in the knowledge that the owner of the adjacent property (a Grade II listed Victorian building) had threatened legal proceedings with regard to the top two floors of the office block. By the time the dispute reached court, the office block had already been built and part of the building which was the subject of the dispute had already been let.
The completion of the construction and letting by the developer proved to be a dangerous strategy, because the court considered that the criteria for granting injunctive relief were met. Instead of ordering the developer to pay a sum in compensation, the court ordered the demolition of the top two floors of the building, which the developer estimated would cost between £1 million and £2.5 million. The developer had budgeted £200,000 for settling the ‘loss of light’ claim.
An appeal seems more than likely.
The case is particularly worrisome for developers who do not make sure any such issues are dealt with before construction is finished. The order by the court that the top two floors of the building should be demolished will clearly have a much greater financial effect on the developer than an order not to build them in the first place would have had. It might have been thought that faced with the fait accompli of the building, the court would have considered a payment in compensation to be more appropriate than injunctive relief, but the judge decided otherwise.
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Partner Note
HKRUK II (CHC) Ltd. v Marcus Alexander Heaney. Judgment (Chancery) 3 September 2010. Reported variously.