Summary: The Court of Appeal dismissed a developer’s appeal to grant an injunction to a neighbour whose right to light had been infringed by an external staircase which the developer had erected in breach of an undertaking it had given to the neighbour. The Court held that, in the circumstances, the county court had been entitled not to award damages to the neighbour but to grant instead an injunction requiring the developer to remove the staircase.

What was the background to the case?

The developer had carried out a small mixed-use development comprising a ground floor café with flats above. As part of the development, it replaced an existing wooden staircase that serviced the flats as a fire escape with a new metal staircase. The neighbour owned a restaurant next-door and complained that the new staircase obscured the light to the restaurant’s kitchen windows. It therefore sought an injunction requiring the removal of the staircase.

The county court decided to grant the injunction. This was despite the fact that the impact to the neighbour’s light had been valued at £886, whereas the cost to the developer of removing and relocating the staircase was in the region of £6,000. At first glance, you might think (echoing the classic test set out in Shelfer v City of London Electric Lighting Co [1891-94] All ER Rep 838) that the injury to the neighbour could be characterised as minor, that it could be compensated by a small money payment, and that an injunction would therefore be unduly oppressive. But the county court disagreed.

What was the issue before the Court of Appeal?

As the developer had conceded that the staircase infringed the neighbour’s right to light, the question for the court was whether an injunction was appropriate or whether damages would suffice.

What did the Court of Appeal decide on that issue, and why?

The court placed significant weight on the conduct and attitude of the developer, acting through one of its directors. In particular, the director had acted in an un-neighbourly and high-handed manner throughout. He was aware that the staircase would infringe the neighbour’s light but went ahead regardless, even after the neighbour had threatened legal proceedings and in spite of undertakings given not to interfere with the neighbour’s light. The developer built the new staircase without informing the neighbour, deliberately picking a time when it knew that the neighbouring premises were vacant. Lord Justice Lewison handed down the Court of Appeal’s ruling without even needing to hear from the neighbour’s legal team. He concluded that an injunction was necessary not only to do justice to the neighbour but also to serve as a warning to others.

How does the decision fit in with other developments in this area?

In Coventry v Lawrence [2014] UKSC 13, [2014] 2 All ER 622, the Supreme Court reconsidered the correct approach to the exercise of the court’s discretion to grant an injunction or damages and recommended a more flexible approach. There have been few cases since Coventry to demonstrate this shift in approach, and the decision in Scandia v Ottercroft had therefore been eagerly awaited.

What does the decision mean for developers?

Although on a superficial analysis the case might ring alarm bells for developers because an injunction was granted for a relatively minor impact and the offending structure was an essential fire-escape staircase, on closer examination the result was predictable and turned entirely on the particular facts of the case and the extreme nature of the developer’s conduct in breaching undertakings and secretly commencing works.

There is a loud and clear message here for developers. Be aware that should you end up in court, your behaviour will be interrogated and you must be able to show at the very least the absence of a cynical and high-handed attitude, and preferably conduct that is impeccable under scrutiny.

What should practitioners take from the judgment?

Development lawyers need to think carefully about how their clients ought to present and argue their case strategically. Certainly, before conceding that there is an infringement, developers should consider if there could be any wider arguments available to them, for instance that the loss of light does not interfere with the natural use and enjoyment of the room and therefore does not constitute a legal nuisance. It may well have been improper to raise such an argument in this particular case, but there will be circumstances where developers would be well advised to think carefully before making any admissions based solely on the narrow technical data.

Case: Scandia Care Ltd and another v Ottercroft Ltd(Unreported, 6 July 2016)

First published in LexisPSL on 27 July 2016