In these days of artificially lit commercial buildings, it seems anachronistic to many observers that historic rights to light can be used to prevent development. This is particularly so in an urban context involving commercial buildings, given that many rights to light are of little or no commercial value while an attractive view, which may have value, has never been protected by the law.

A very recent Supreme Court decision in the case of Coventry and ors v Lawrence and ors [2014] EWCA Civ 26 handed down on 26 February 2014 may herald a welcome change of attitude.

Rights to light are a form of easement and are generally acquired by prescription, (20 years' uninterrupted flow of light to a window). A substantial reduction in the light falling on the window is actionable. The court can grant damages and an injunction to restrain interference with the right to light.

In recent years the courts have become particularly willing to grant injunctions and have even ordered the destruction or modification of buildings which interfered with rights to light (see in particular Regan v Paul Properties [2007] Ch 135). The approach had almost solidified into a rule that, if property rights were infringed, other than in the most modest cases where little damage had been done, the owner of the affected building was entitled to an injunction.

This attitude gave neighbouring owners much increased bargaining power when dealing with a proposed development unless the developer could be absolutely sure that rights to light would not be infringed. Even if they did not object to a proposed development in principle, they could hold out for significant compensation as the price of giving their consent.

The courts have long had the ability to award damages rather than order an injunction to prevent or put right an unlawful act. In many areas of law, injunctions are by no means common. This is particularly so where damages are an adequate remedy.

In Coventry, the Supreme Court reviewed previous guidance on the circumstances in which it was right to confine a claimant to an award of damages instead of an injunction. They considered that the rules on which Regan was based were too prescriptive and had been followed too 'slavishly' by the lower courts in recent years.

Lord Neuberger (President of the Supreme Court) reminded us that:

“The Court’s power to award damages [instead of] an injunction involves a classic exercise of discretion, which should not, as a matter pf principle, be fettered…”

Finally, the court expressed some support for the proposition that the grant of planning permission may be a relevant factor to take into account in resisting the award of an injunction. This would particularly be so where planning permission had been granted for an activity that would benefit a wider public who would otherwise be adversely affected by an injunction.

The case of Coventry concerned nuisance caused by stock car racing rather that rights to light. It did not replace Regan with any clear set of rules as to those cases in which it would be right to refuse an injunction. It does, however, clearly herald a more nuanced approach to whether it really is just to prevent a particular development from proceeding by the award of an injunction. This should allow account to be taken of a wide range of relevant factors.

As ever, it will be left to parties and their advisors, with the assistance of the lower courts to find the boundaries of this new regime.