Ottercroft Ltd v Scandia Care Ltd and Dr Mehrdad Rahimian [2016] EWCA Civ 867

The Court of Appeal upheld a first instance decision to grant a mandatory injunction against a developer who infringed an adjoining owner’s rights of light, rather than awarding damages.

The developer had commenced works on a small mixed use development comprising a ground floor café with residential flats above. Ottercroft owned an adjoining restaurant and began proceedings to protect its right to light interfered with by the works. The developer gave undertakings that Ottercroft’s rights would not be infringed. Nevertheless, without notice being given to Ottercroft, a metal fire escape staircase that formed part of the works was erected obstructing the restaurant’s kitchen windows.

The first instance court held that the staircase infringed Ottercroft’s rights to light. Furthermore the developer had acted in breach of undertaking and without planning permission. Although the infringement was minor with Ottercroft’s loss of light valued at £886 whereas the costs of removing the staircase and installing a replacement was estimated in the region of £6,000, the court awarded the injunction and ordered the removal or alteration of the staircase based on the developer’s bad conduct and behaviour.

The Court of Appeal unanimously rejected the developer’s appeal. The court noted that the judge at first instance had expressly directed himself that he should not grant an injunction if damages would be an adequate remedy. He then conducted a balancing exercise considering the factors for and against the grant of an injunction. Even though the infringement was minor and damages could have compensated Ottercroft (i.e. key Shelfer tests were satisfied) the judge was influenced by the undertakings given by the developer, which were as binding as an interim court order, and the developer’s high handed manner. The Court of Appeal found no error in the judge’s exercise of discretion. To hold the defendants to their contractual undertakings was not oppressive.

Points to take away:

  • This is the first rights of light case to reach the Court of Appeal since the 2014 case of Coventry v Lawrence which emphasised that injunctions were not the automatic remedy for rights to light infringements, recommending a more flexible approach in the exercise of the court’s discretion to grant an injunction or damages. Does this mark a shift in the court’s approach? Should developers be concerned? Given the facts of the case and the developer’s particularly poor conduct in breaching undertakings the result is perhaps not surprising. It is however a warning and developers should take notice.
  • A breach of an undertaking is viewed seriously by the courts. Don’t break your promises.
  • Be on your best behaviour. This case demonstrates the importance of being a good neighbour, in so far as possible, with those who are likely to be affected by your development. It is a strategy that can help to mitigate against infringement. Don’t be high handed or underhand it can increase the risk of an injunction.