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Protection and enforcement of rights to light

construction work on new build homes ensuring a rights of light Print publication

10/12/2021

Walker Morris’ Real Estate Litigation specialist David Manda reviews the recent case of Beaumont Business Centres v Florala Properties and provides legal and practical advice for developers in relation to the protection and enforcement of rights to light.

Why is Beaumont Business Centres v Florala Properties of interest to developers?

When it comes to the enforcement of a right to light there has perhaps been a tendency [1] for developers and their professional advisers to assume that the courts will be slow to order an injunction – which could delay, prevent, or even require demolition of, a development – and that they will award financial compensation (damages) to any rights of light beneficiaries instead.

The High Court’s decision in Beaumont Business Centres v Florala Properties Ltd [2], however, puts paid to that notion.

What practical advice arises?

The judgment bears reading in its entirety as it covers a number of issues pertinent to the obtaining of injunctions and/or the calculation of damages in lieu in a development context, plus it contains detailed analysis of how to calculate loss of light.

The key practical takeaways for developers, however, are:
  • An injunction is the court’s primary remedy in respect of a rights to light infringement. While the court does have discretion and a flexible approach should be adopted, the burden remains on the respondent to an injunction application to prove that an injunction should not be awarded.
  • To enforce its right to light, an applicant must demonstrate that its property will be or has been made substantially less comfortable or convenient due to the reduction in light. (That was demonstrated in this particular case by a reduction in lettings and rent.)
  • The fact that a property or room might already be poorly lit and dependent upon artificial light is irrelevant. An applicant will still be entitled to an injunction if the [proposed] neighbouring development makes things even worse.
  • While the fact and content of some prior negotiations may, in many cases, be helpful when it comes to defending an injunction, the mere fact of such negotiations will not be determinative. (In this case the fact of prior negotiations and even an historical rights of light deed were insufficient to prove that Beaumont was not genuinely concerned to protect its right to light and was not therefore entitled to an injunction.)  Each case will turn on its own facts.
  • The fact that a development may have been completed by the date of the hearing is irrelevant. An application may nevertheless be awarded an injunction, which could then require demolition of development.
  • Developer conduct matters. (Factors which weighed in favour of the grant of the injunction here were that Florala had proceeded with development in full knowledge of Beaumont’s concerns. It had therefore acted in a “high handed, or at least unfair and unneighbourly manner”.)

Apart from providing a stark reminder that the courts will not shy away from ordering a developer to demolish a completed project if there has been a right to light infringement, this case provides useful practical guidance as to when an infringement might be proven, even in an already poorly lit building.  It also demonstrates how important the factual matrix, and in particular the nature of the buildings involved, can be.

As to the relevance of the parties’ conduct in rights to light injunction cases and also the court’s discretion to award an injunction or damages in lieu, see further the Ottercroft decision, discussed in detail in our earlier briefing.

What happened in the particular case?

In this case Beaumont had become aware of Florala’s plans to redevelop its property in the City of London in such a way that might interfere with the light to Beaumont’s high-end serviced office building.  The parties initially entered into neighbourly discussions as to how the matter might be resolved, but negotiations broke down.  Florala commenced works and Beaumont issued court proceedings seeking an injunction and damages for wrongful interference with its right to light.  Florala completed its redevelopment and argued that Beaumont was not genuinely concerned to protect its right to light, and merely sought to extract a ransom payment, such that an injunction should not be awarded.  Florala also argued that where a room is already poorly lit, there can be no actionable interference with a right to light in any event.

The High Court found for Beaumont.  It declared that Beaumont would be entitled to an injunction requiring the cutback of Florala’s now completed redevelopment plus damages.

How we can we help

Walker Morris advises on all forms of developer disputes, both from a pre-emptive risk-management perspective and when it comes to resolving issues after they have arisen.  If you have any queries or concerns, or if you are interested in receiving legal and practical training in relation to rights of light or any other development-related issue, please do not hesitate to get in touch.

 

[1] since the 2014 Supreme Court decision in Coventry v Lawrence [2014] UKSC 13, which confirmed that the courts should take a flexible approach when considering whether to order damages instead of an injunction

[2] [2020] EWHC 550 (Ch)

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