Speedway ruling strengthens developers' hand in right to light negotiations, says expert

The result of a case about noise from a speedway track has given developers a stronger case to negotiate a settlement for infringing a right to light rather than face the threat of an injunction.

Whilst the starting point remains that the courts should consider granting an injunction, now it is easier for courts to award damages instead and they will have less to do to justify such a ruling.

This returns the situation to that in 2005, when a developer constructing commercial premises and acting reasonably could expect an application for an injunction for breaching a right of light to be rejected and damages to be awarded instead.

It bucks a trend over the past 10 years in which courts have become more likely to grant injunctions rather than award damages in rights of light cases.

That culminated in a High Court ruling in 2010 which said that developer Highcross must remove the top two floors of a redevelopment of an existing five story building in Leeds because it had known about resident Mr Heaney's complaints about the effect on his property, which was opposite it.

While the Heaney case is renowned, what is less well known is that the decision, and the similar ones that preceded it, were reached by slavishly applying principles established by the Court of Appeal in 1895. This was when it was established that damages should only be awarded instead of an injunction in very exceptional circumstances. The result is that claims to rights of light in the twenty first century are being dealt with on the basis of rules laid down when Queen Victoria was still on the throne.

In a ruling about noise coming from a speedway track the Supreme Court has criticised the rigid application of those principles established in 1895. The ruling said that the courts should be more flexible in deciding whether to award damages and that they should not be constrained in exercising their discretion.

This is a significant shift in the burden that a developer faces when it has infringed a neighbour's right. In addition, the Supreme Court decided that the public interest is a relevant factor that can be taken into account in coming to a decision. This means that the existence of a planning permission may be relevant to the question of whether or not to grant an injunction.

The case involved the 2006 purchase of a bungalow in Suffolk half a kilometre away from a speedway track and the purchasers' claim that the noise was a nuisance. Though the couple won the case, the Supreme Court opened up the possibility of the remedy being damages rather than an injunction.

The issue of rights to light is so serious that the Law Commission consulted on it, publishing its provisional recommendations for reform of the law(142-page / 1.7MB PDF) . But with a UK general election looming it is unlikely that the issue will be dealt with. This makes the judgment of the Supreme Court all the more significant.

Mike Reid is a development and regeneration expert at Pinsent Masons, the law firm behind Out-Law.com