If a development infringes a neighbouring property’s right of light, the owner may have a claim for damages or an injunction.
In the 2010 case of HKRUK II v Heaney the court even decided that if the infringement was sufficiently serious, it would order demolition of the offending part of the development, even if the neighbouring owner had not taken legal action during construction. An appeal against this decision never came to court, the developer having decided to make a substantial payment in settlement.
Developers may be able to protect themselves with rights of light insurance. Insurers will need to assess the risk of a claim, by establishing what objections were made to any planning application and if objectors asserted the benefit of rights of light. They will commonly require a specialist surveyor’s report to identify the development envelope and to assess how great an infringement might be. Whether the window is in the living room of a residential property or in a factory store room will affect the likelihood of a claim being brought.
If a developer requires insurance, it is imperative neighbours are not contacted about rights of light until the insurance is in place, and then, in accordance with the policy terms. However, this can create a problem if the developer needs to deal with the neighbour in relation to party wall issues.
In such circumstances, Insurers will often exclude liability, as they know that party wall surveyors will be appointed and any surveyor worth his salt will raise rights of light with his client.
It may therefore be necessary to settle party wall issues before taking out insurance unless full disclosure is made and insurers agree such matters may be discussed.
Provided party wall matters can be dealt with, other types of neighbourly contact may, subject to checking with the insurers, be helpful in resisting a claim for an injunction to pull down a building or cut it back. It is prudent to notify neighbours when works are to start and provide a contact number to call if the development causes problems (e.g. dust, noise, disturbance, or mud on the road). In some cases, the developer will want the right to oversail a crane over the dominant property or to use part of it for vehicle turning or storage. Keep a diary of such contacts (without telling the neighbour) for use if the neighbour seeks an injunction. An injunction is a discretionary remedy and courts may be reluctant to grant an injunction to a neighbour who has actively assisted construction of a development rather than to someone who objected throughout, as happened in Heaney.
Rights of light insurance contracts are evolving. Insurers offer “standard form” contracts but these may not be appropriate to particular cases. It is recommended that developers and their legal team consult a specialist insurance broker so that a policy tailored to a specific development can be effected.