In the recent case of HKRUK II (CHC) Ltd v Heaney, the High Court awarded an injunction against a developer who infringed the rights of light to a neighbouring commercial property by constructing two additional floors as part of the re-development of an existing building. The injunction required the demolition (in part) of the two offending floors, despite the fact that:

  • the owner of the building benefitting from the rights to light (Mr Heaney) and his rights of light advisors had been consulted prior to and during the course of the offending works, and that he had threatened to apply for an injunction before the offending works were completed, but had failed to do so;
  •  the construction of the two additional floors had been completed; and
  •  the offending floors had been let by the developer to a commercial tenant.
  • The judge considered the criteria which the party facing a claim for infringement of a right to light must satisfy before the court will exercise is discretionary power to award damages in lieu of an injunction set out in the case of Shelfer v City of London Electric Lighting Co. These are:
  •  the injury to the claimant's legal right is small;
  •  it is capable of being estimated in monetary terms;
  •  it can be adequately compensated for by a small monetary payment; and
  •  the grant of an injunction would be oppressive.

The judge also made clear that:

  •  a court will not usually exercise its discretion to sanction a party's actions by 'buying out' a legal right;
  • the jurisdiction to award damages instead of an injunction, even where the nuisance is a
  • continuing one, does not mean that the court should act to 'legalise wrongful acts' because a defendant is willing to pay damages;
  •  the judicial discretion should not be exercised in a way that deprives a claimant of his legal right  'except in very exceptional circumstances'.

Having considered the criteria set out in the Shelfer case and the particular circumstances of the case in hand (including, but not limited to, the extent to which the offending works had reduced the flow of light to Mr Heaney's property), the judge considered that:

  • the injury to Mr Heaney's right to light was significant and thus not capable of being compensated  for by a small monetary payment.
  •  given that the developer had proceeded in full knowledge of complaints made by Mr Heaney, the  grant of an injunction would not be oppressive. The infringement had been committed with a view to  profit. The developer had not been driven by necessity and 'could very easily, if somewhat less  profitably, have built sixth and seventh floors of reduced dimensions'.

The judge did not consider that Mr Heaney had to accept damages, saying that 'it would be wholly wrong for the court effectively to sanction what has been done by compelling the defendant to take monetary compensation which he does not want'.

Warning to developers

Developers must not assume that rights of light can be bought out after the development has been completed, or that failure of potential claimants to act in a timely manner will always prevent them obtaining an injunction. Failure to deal with rights of light matters before erecting a building could lead to the offending structure being demolished.

This case adds further weight to the decision in Regan v Paul Properties DPF No 1 Ltd (2006). In that case, the court granted an injunction requiring the developers to remove that part of their building that infringed Mr Regan's right to light.

An injunction is a discretionary remedy (as is damages in lieu of an injunction) but the Regan case reaffirmed that the starting point and prima facie remedy for breach of property rights is an injunction. The burden lies on the infringing party to show an exceptional case why an injunction should not be awarded.