In England and Wales the longstanding owner of a building with windows is entitled to maintain that level of natural daylight by forbidding construction or any other obstruction. It is also possible for a right to light to exist if granted expressly by deed, or granted by implication.
In 2006, the Court of Appeal granted a mandatory injunction requiring developers to take down part of a building which infringed an existing resident's right to light. Now another case has sent a clear message that failure to take right to light matters seriously when planning and constructing a new building is likely to result in an order for demolition of the offending structure.
For differences in the legal position in Scotland, please see our separate OUT-LAW Guide.
The Heaney case
Property developer Highcross took a risk in a proposed development of a five-storey building in central Leeds. Its intention was to redevelop the existing building and increase its height by refurbishing the first to fourth floors, reconstructing and extending the fifth floor and building a new sixth and seventh floor to increase the office accommodation. This building work began, and was substantially completed, by the end of 2008.
Mr Heaney owned the former Yorkshire Penny Bank building opposite the new development. The listed building, which has windows facing the development, was constructed in 1894. Heaney protested about the development from the outset, and sought to engage the developer in negotiations to reduce the scheme and its impact on the light to his building. No resolution came about.
Heaney did not himself start court proceedings in case he had to pay damages, so the developer started proceedings itself for a declaration that Heaney had lost his right to any remedy by failing to seek an injunction from preventing the now-completed works from going ahead. Highcross also argued that the injury was so small that the court would not grant an injunction in any case.
The case came before the High Court in July 2010. The judge indicated during the hearing that he was unlikely to accept Highcross' first argument, leaving him to decide whether an injunction should be ordered which would require one third of the upper two floors of the development to be removed, or whether an award of damages would be more appropriate.
The judge considered that the obstruction caused by the development was so significant that a small monetary payment would not be enough. Further, given that the developer had proceeded in full knowledge of Heaney's complaints, the judge granted the injunction even after the work had been completed and the seventh floor of the development had been rented out to a firm of accountants.
Summary
This decision should remind developers that the court will readily grant a mandatory injunction in cases where the affected party has made its protests clear - even if it hasn't actually issued legal proceedings - and the developer has chosen to ignore such protests and carry on regardless. Accordingly, developers need to realise that they cannot just assume that right to light claims can be 'paid off' before, or in the course of, a trial. Instead, they need to resolve all potential claims before actually starting work - otherwise their new development may end up being torn down.
Those contemplating purchasing new buildings, providing finance for development or taking leases of new buildings need to ensure that there are no ongoing right to light disputes which might lead to the removal of part of the building in question.