Rights of light and behaving badly… to be continued

A little reported decision from the Oxford County Court highlights the need for developers to ensure that their behaviour when dealing with rights of light matters is beyond reproach.

The facts

The case of Ottercroft Ltd v Scandia Care Ltd and another involved development of an investment property in High Wycombe. After giving undertakings not to build so as to interfere with alleged rights of light, the defendants then proceeded to build a metal fire escape staircase serving the new development which obstructed light to the kitchen of the claimant’s adjacent restaurant.

Although the case related to a small development, the issue before the Court was one of major importance to developers, as it concerned the question of the circumstances in which the Court will grant an injunction in favour of a neighbouring owner where a developer has breached their right to light.

Decision

The judge granted an injunction for a number of reasons, including:

One of the defendants was at all times aware that his actions would impact on the claimant’s right to light.
Although the infringement was minor (the loss of light being of little significance and valued by experts at £886), it could be avoided entirely by moving the staircase away from the window by a distance of not much more than its width.
The judge was significantly influenced by the undertakings the defendants gave not to interfere with the alleged rights of light. The defendants still proceeded to build the staircase without notice of any kind, without planning permission and in breach of the undertakings. The defendants acted badly throughout, in an unneighbourly manner and the judge found the second defendant not to be a truthful witness.

Where are we now

Although the infringement in this case was relatively minor and could have been compensated by a small monetary payment, this was overridden by the deceptive behaviour of the defendants. Conduct plays an important part in rights to light cases, the reason being that where a Court awards damages in lieu of an injunction, it is effectively allowing the compulsory purchase of a neighbour’s rights by the developer.

It is therefore essential that developers are mindful to ensure that they adopt a careful strategy when communicating with neighbouring owners, as they need to be able to persuade the Court that they have behaved reasonably. In this case, the behaviour of the defendants was at the opposite end of the behavioural spectrum, and the judge was significantly influenced by this.

Appeal – July 2016

The appeal is due to be heard in the Court of Appeal in July this year. Given the judge’s clear findings regarding the conduct of the defendants, will this decision be overturned? Or, will the Court feel it is more appropriate to address the minor infringement by an award of damages?

To be continued …

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