The development industry will be watching with great interest in July this year when the Court of Appeal reviews a decision from the Oxford County Court, as it is likely to significantly impact future rights to light cases. It is surprising that the decision has not received more publicity given the uncertainty which remains around when injunctions will be granted in rights to light cases, particularly as the decision was originally made in January last year. It focuses on the impact of deceptive behaviour and conduct in such cases.

The issue goes back to the decision of the Supreme Court in Coventry v Lawrence and centres on how the lower courts will interpret the comments of the Supreme Court Justices. The strong suggestion from this case was that injunctions would be less likely going forward. This was further supported by the decision of the county court in Scott v Aimiuwu, handed down early last year in which damages were awarded instead of an injunction.

The development industry is in desperate need of clear guidance from the higher courts and the question is, whether the Court of Appeal will deliver.

BACKGROUND

The decision under appeal is known as Ottercroft Limited v Scandia Care Limited [1] which involved a relatively minor infringement of a neighbour’s right to light resulting from the development of a café and residential flats above it in High Wycombe. The most striking feature of the judgment is the Judge’s clear finding that he did not find the second defendant, Dr Rahimian, to be a truthful witness. He found that Dr Rahimian had behaved in a high handed manner and deliberately sought to mislead the claimant in relation to his development plans. The question for the judge was whether a staircase to the rear of the property servicing a fire escape for the residential flats should be removed on the basis that it caused a relatively minor loss of light to the windows of the claimant’s restaurant.

THE DECISION

The judge had no hesitation in awarding an injunction requiring the removal of the staircase. He acknowledged that the loss of light was relatively minor and had been valued at less than £1,000 in monetary terms. However, he focussed on the second defendant’s conduct and the fact that he had deliberately breached an undertaking he had given not to interfere with the claimant’s light. In the course of giving the judgment the judge said “…it is obvious the defendant’s word cannot be trusted...”. The injunction which followed put the defendant to far greater cost than the estimated value to the claimant of the infringement of its right to light.

WHERE DOES THIS LEAVE US?

This is a difficult case from a technical perspective in that the infringement is relatively minor and could have been compensated by a small monetary payment. On that basis alone, and given the perceived move away from injunctions, we might have expected an award of damages rather than an injunction. However, this was overridden by the defendant’s deceptive behaviour. The importance placed on the conduct of the parties comes as no surprise. Where the court awards damages in lieu of an injunction it is effectively allowing the compulsory purchase of a neighbour’s rights by the developer. It is for this reason that conduct plays such an important part in rights to light cases. Therefore, those advising developers will always seek to ensure they adopt a careful strategy in terms of communicating with the neighbouring owners; the aim being to ensure they can persuade the court they have behaved reasonably. The defendant in this case was at the opposite end of the behavioural spectrum and this was the pivotal factor in the judge’s decision.

THE APPEAL

The case is listed for hearing in the Court of Appeal at the beginning of July this year. Given the judge's clear findings in relation to the conduct of the second defendant, it is difficult to see his decision being overturned. However, in light of the relatively minor nature of the infringement, there is room for the Court of Appeal to decide that the judicial discretion to award an injunction rather than damages was not exercised correctly.

The development industry will await the outcome with interest and in the meantime those advising developers should remain as careful as ever to ensure that their clients' behaviour is beyond reproach.