The Court of Appeal recently confirmed that the primary remedy for a party who has had their right to light obstructed by a new development is an injunction.  This overrules the earlier decision of the High Court to grant damages for such interference.  This is in stark contrast to a case in 2005 which was seen by many as a signal that injunctions were less likely to be granted in built up areas.

In the case of Dennis Regan v Paul Properties Limited, it was held that an injunction would be granted in favour of Mr Regan in order to prevent his right to light being infringed by a new development being pursued by Paul Properties opposite his second and third floor maisonette.  Mr Regan would not be forced to have his right to light bought by Paul Properties via compensation instead of an injunction.

The Facts of the Case

  • Mr Dennis Regan was the owner of a first and second floor maisonette in Brighton.  The main rooms of the property, including the living room, the prime area for family living, faced out onto property owned by Paul Properties that rose to two and three storeys high.
  • Paul Properties, in partnership with two other developers, decided to regenerate their site and construct a development containing both commercial and residential property which was in part five storey and in part four and three storey and was divided into 16 units.  They applied for and were granted the relevant planning permission before construction commenced.
  • Mr Regan contacted Paul Properties at an early stage raising objections to the development.  Both parties instructed surveyors but were unable to reach agreement.  The development continued despite these objections.  The obstruction was caused by one of the 16 units being a fourth floor penthouse.  Throughout any discussion Mr Regan always maintained that he wanted to retain the same quality of light and did not want damages.
  • It was eventually concluded between the parties that the light, which Mr Regan currently received into his living room, would be reduced by a third from 65-67% to 45-47% because of the fourth floor penthouse being built as part of the redevelopment.    However agreement could not be reached on how to resolve this situation and so Mr Regan began proceedings to seek an injunction against Paul Properties and others to protect his right to light.
  • In order to remedy the obstruction caused to Mr Regan, a considerable amount of the penthouse would need to be demolished and at the time of the High Court ruling, part of the penthouse had been built.

High Court Decision

The Court decided that Mr Regan's right to light had been infringed by Paul Properties' development, but awarded damages, not an injunction that would stop the development going ahead without alteration as planned.  At the time of the hearing the penthouse which was the cause of the loss of light had been partly built.  Some demolition would have been necessary to remove the obstruction to light and which would mean a redesign of the development.  The court held that it was up to Mr Regan to show that damages were not an appropriate remedy.  It decided that the loss of light was small and the loss of value to Mr Regan's residence could be measured; whereas the cost of modifying the penthouse and the loss of value to the new development was considerable.

Court of Appeal Decision

In August 2006, Mr Regan was granted the right to appeal.

The Court felt that Paul Properties' development caused an interference with the amount of light that naturally flowed into Mr Regan's living room and in considering this, the important factor was the amount of light left after the infringement, not the amount of light being lost.  The interference with Mr Regan's right to light was not small and the court felt that it could not be adequately compensated with the award of monetary damages.

The main focus for the Court was that while an injunction may be detrimental to the developers in terms of monetary loss and restrictiveness, in terms of their ability to continue the development as planned and for which planning permission had been granted, that alone would not predetermine the Court's choice of remedy.

The Court decided that it was necessary to look at the circumstances surrounding the case and the conduct of the parties before they came to court.   It appears to be significant that the property suffering the infringement was Mr Regan's home.

The Court noted that Mr Regan had raised his concerns about the possibility that the development might have an effect on his right to light with Paul Properties when construction was in the early stages.  However, Paul Properties proceeded with their project even after they were aware that Mr Regan was bringing action against them.  They took a calculated risk and were fully aware of the possible consequences of such a risk.

The Court of Appeal ruled on behalf of Mr Regan and granted an injunction against Paul Properties and Others.

The Message

The case of Dennis Regan v Paul Properties Limited should remain in the minds of developers when completing future projects if they receive genuine concerns from neighbours about the effect on their rights to light.

A developer will have to properly address such concerns, at the earliest possible stage and not expect to avoid an injunction by simply buying any affected residents' proprietary rights with monetary compensation.  Such a decision could end up being a costly mistake if developers ignore such concerns and are subsequently forced to re-evaluate their plans.

This case also highlights the need for a balance to be drawn between individuals with proprietary rights over property and developers with planning permission.  This point comes to the fore when developers who expect to be able to carry out a project for which all relevant planning permission has been granted, are prevented from doing so due to proprietary rights, such as those of Mr Regan taking precedence, even though the developer is willing to compensate those who may be affected.  The case report states that the planners had not asked for a right of light report in relation to the impact of the development on all surrounding properties but only those on one side.  Thus satisfying the planners may not be sufficient and developers need to consider the right of light of all neighbouring properties.

Such assessment of the law is in the hands of the Law Commission, but for now Dennis Regan v Paul Properties Limited emphasises that the courts hold proprietary rights in the highest regard and will grant an injunction against developers in order to protect such rights, even if a developer is willing to compensate those concerned.  Such rights, in the eyes of the courts, are not for sale.

The text of the decision in Dennis Regan v Paul Properties Limited is available from the BAILII website at: www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2006/1319.html&query=regan&method=all

Fortunately for Scottish developers these proprietory rights to light are not generally something that they have to contend with under Scots law, although in the past there may have been a limited element of right to light within the scope of any implied common interest in respect of tenement properties. A developer may however occasionally encounter negative servitudes which can have a similar sort of effect.  
 
A negative servitude would impose a restriction on an owner of property to refrain from doing something, for the benefit of another property, such as an obligation not to build on land or not to build above a certain height. Negative servitudes can no longer be created however, and any that existed before 28 November 2004 were automatically converted on that day to negative burdens.  If not recorded or registered in the relevant Scottish Property Register then these converted negative servitudes will be extinguished in ten years from 28 November 2004, but during that period it will be possible to register a notice of converted servitude against both the benefited and the burdened property, which will preserve the converted servitude and prevent it from automatic extinction at the end of the ten year period.

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