Rights to Light – ignore at your peril

A new case on rights to light provides long-awaited and welcome clarification to this complex issue.

Rights to Light

A right to light is a legal right - an easement - which benefits buildings on a piece of land, allowing those buildings to receive light across neighbouring land, through apertures i.e. windows. If the owner of the neighbouring land does something that interferes with the access of light to the building, the building owner may have an action for infringement of its right.

Such an action usually takes the form of a claim for a mandatory injunction or damages in the alternative.  If successful in seeking an injunction, the neighbouring landowner could be forced to rework its plans to reduce the impact on the access to light or (if the building has already been built) demolish the obstruction.

This article summarises a recent High Court decision highlighting the risk to developers in proceeding with a development which interferes with another party’s rights and how courts are willing, where the circumstances dictate, to impose injunctions to curtail a development that has already been completed.

Facts

In Beaumont Business Centres Ltd (“B”) v Florala Properties Ltd (“F”), B owned a property in the City of London which was let as high-quality serviced offices. F acquired a property to the north of B’s property and had plans to redevelop it to an aparthotel, but F had reservations that it may interfere with B’s rights to light. B and F held several meetings to discuss their respective rights.

B subsequently sold its freehold to an institutional developer (“D”), taking a lease back and agreed by deed that B would retain any rights to light claims for increases in height of F’s property by up to 11.25 metres (the “Deed”). Above that threshold and any right to claim would belong to D. F’s development increased less than 11.25 metres in height. 
Initially, F was prepared to make a compensatory offer to B in lieu of the interference with B’s rights to light but decided not to following a review of the Deed, as F was of the view that the Deed was constructed simply as a mechanism for B to extract a “ransom” payment and not to protect its rights to light. F proceeded with its development which completed in 2018 and let the property to an aparthotel operator (“A”).

B did not object to F’s Planning Application, but it did object to F and its advisors on the basis that the proposed works would interfere with B’s rights of light.  Regardless, F proceeded with its development ‘at risk’ of the objection by B.  Several months into the development, F was continuing at pace and so B issued proceedings seeking a mandatory injunction and damages in nuisance against F for wrongful interference with B’s rights to light. B had not sought an interim injunction or included A in the proceedings.

Decision

The court found B was entitled to an injunction ordering that F’s property be cut back, but if B wanted to enforce it would have to join A into the proceedings. Alternatively, B was entitled to ‘negotiating damages’ in lieu of the injunction.

The court considered the below points:

• Did F’s works cause a nuisance to B?

It was not relevant whether B’s property was well or badly lit before the reduction in light. In order to establish its claim, B had to prove the reduction in light caused a substantial interference with its reasonable enjoyment of the property i.e. being able to let the floors at the market rate it would ordinarily be able to, had the rights to light not been infringed.  It was established that rentals on the lower floors had dropped by 2.5% which amounted to an actionable nuisance, even though F sought to argue that B could have mitigated its loss by replacing some of its windows to increase light intake.

• Was B entitled to an injunction or damages?

The evidence submitted to the court did not substantiate F’s contentions. The burden was on F to show why an injunction should not be granted. The court was of the view that F could not do so, as B evidenced a loss in letting income which was not small or easily quantifiable. It did not matter that B had not objected to F’s planning application nor applied for an interim injunction initially. F knew the potential impact on B’s property by continuing the development and had acted in a “high-handed manner”. However, for an injunction to be granted the court confirmed that A would need to be joined to the proceedings, and if they were not joined, negotiating damages would be payable.

Comments

This decision serves as a further refinement of rights of light law and clarifies a number of contentions that practitioners and rights of light surveyors have been promoting over the last 6 years based, largely, on obiter comments made by the court in Lawrence v Fen Tigers Ltd [2014] UKSC 13.

In terms of the calculation of damages, the pendulum swing for a share of developer profit has, over the years, ranged between 5% and 33.3%.  This case, whilst based upon its own facts, is a very real reminder to developers that the courts will readily impose the top end of profit share if that ‘feels right’.

The decision is a stark reminder to developers that they must not assume that courts will not grant an injunction if their development has been completed. In this case, B made its objection known to F, but F carried on regardless with its scheme. Therefore, it is paramount to reduce the risk of unnecessary litigation by addressing rights to light constraints before commencing development. This will avoid potential costly and lengthy proceedings, cutting back parts of a scheme or being forced to share profit.

Beaumont Business Centres Ltd v Florala Properties Limited [2020] EWHC 777 (Ch)