The accepted view that inactivity by a landowner of commercial buildings whose rights to light have been interfered with may prevent it from obtaining an injunction has been challenged by a recent case.
A developer owned an office building and wanted to add additional floors to the building. A right to light surveyor advised the developer that the additional floors would interfere with a neighbouring landowner's rights to light. The developer and neighbouring landowner entered into discussions about the issue but did not reach any agreement. The developer continued to build the additional floors. After the construction work was completed the developer applied for a declaration that it was free from any liability to the neighbouring landowner. The neighbouring landowner counterclaimed for an injunction or damages and was awarded an injunction notwithstanding the fact that it had taken no action during the construction works and the action had been started by the developer.
The court held that the infringement was not trivial, the developer knew it was actionable, the neighbouring landowner did not want damages and the developer was causing the interference with a view to making money itself. Each case will turn on its own facts but it must be sensible to sort out rights to light before commencing any development.
HKRUK II (CHC) Ltd v Heaney (2010).