Has the court finally got the balance right between developers and neighbours when it comes to enforcing rights to light?

This article comments on the unreported Court of Appeal case of Ottecroft Ltd v Scandia Care Ltd & Anr, 2016.

The facts

The parties occupied adjoining properties. The defendant began construction works on its property without first alerting the claimant using the process under the Party Wall Etc Act 1996. The claimant issued proceedings to restrain the works on the basis that they interfered with its rights to light. The defendants gave undertakings to the claimant that no works would be done which would interfere with its rights. Despite this, the defendants went ahead and constructed a metal fire escape staircase which obstructed the claimant's window.

At first instance the court held that the staircase did cause an interference and the defendants had breached their undertaking without notice or planning permission. Although the infringement was minor, no significant damage had occurred and the damage could be measured in money, the breach of undertaking justified the grant of an injunction. The court held that a representative of the defendant had conducted himself poorly throughout the matter and was not a truthful witness. It ordered removal of the staircase and costs to the claimant.

The defendants appealed.

The decision

The Court of Appeal upheld the first instance decision saying a balancing exercise had to be conducted to determine whether to grant an injunction. One would not usually be granted if damages were an adequate remedy. However, although the infringement was minor, the undertakings were binding. It was right to consider the defendants' conduct as a whole. Expert evidence showed it would only have cost around £6,000 to alter the staircase to preserve the access to light. The injunction was therefore not a draconian award.

Comment

Readers may remember the case of HXRUK II (CHC) Ltd v Heaney 2010 which concerned a development in Leeds City Centre which infringed the rights to light of a neighbouring owner, Mr Heaney. Although HXRUK had attempted to negotiate several times with Mr Heaney, he refused to engage and HXRUK issued proceedings after having finished construction. The court made the surprising order that HXRUK should demolish the top two floors of its development at a cost of £2.5m, compared with the assessed value of the infringement of £80,000. The overwhelming view of commentators was that this case swung the balance too far against developers.

Since then the cases of Coventry v Lawrence 2014 and Scott v Aimiuwu 2015 have tempered the Heaney position that an injunction will be ordered in preference to damages regardless of the facts; in both cases damages were awarded.

In this most recent case it finally seems that the right balance has been struck between developer and rights owner. While damages are the preferred award where the infringement can be measured in money, an injunction will still be available and appropriate where poor conduct warrants it.