The Court of Appeal sent out a very firm message on 6 July as to how developers must behave when negotiating with neighbouring owners regarding rights to light. The eagerly anticipated hearing of the appeal in Ottercroft v Scandia was cut-short with the Court giving short shrift to the developer’s arguments. It is clear that bad behaviour on the part of a developer will make an injunction more likely. This will be the case even if the facts might otherwise support an award of damages in lieu of an injunction.
HOW IT UNFOLDED
The Court or Appeal heard a variety of arguments on behalf of the developer as to why the Trial Judge should not have awarded an injunction. Each argument was met with a robust response from the Court. The misleading behaviour of the Second Defendant overshadowed everything. This was a difficult case on the basis that, but for the Second Defendant’s behaviour, it appeared likely damages would have been awarded in lieu of an injunction. The Court of Appeal was not swayed at all and didn’t even call on the neighbouring owner’s legal team to put forward a case in response. Instead they delivered a short and robust Judgment shortly after the lunch break.
The Court of Appeal found no error in the Trial Judge’s decision to award an injunction to remove a staircase which infringed the neighbouring owner’s light. Damages for the lost light had been agreed at only £886 whilst the cost of removing the staircase exceeded that sum several times over. This point alone would generally have tended towards an award of damages but it was outweighed by the Second Defendant’s behaviour. His behaviour was condemned not least because he had breached a written undertaking not to interfere with his neighbour’s light. The Court of Appeal confirmed that the Trial Judge was entitled to put conduct at the forefront of his mind when making his decision. They went on to say that this would include the developer’s actions before proceedings were issued.
WHERE DOES THIS LEAVE US?
Whilst this decision sends out a very clear message to the development industry, in reality it will come as no surprise to well advised developers. The case focused on a small development in High Wycombe and involved bad behaviour at the most extreme end of the spectrum. It is disappointing to rights of light practitioners and developers alike that conduct overshadowed everything else. This prevented what would otherwise have been a good opportunity for the Court of Appeal to provide some guidance on the vexed question of when damages might be awarded in lieu of an injunction. As a result the need for such guidance in rights to light cases remains and in the meantime developers must continue to ensure their conduct is beyond reproach.