This High Court case concerned neighbouring properties in the City of London each with rights of light and each looking to redevelop.
The case demonstrates clearly that an injunction may be granted even where the development has already been completed. Great care must therefore be taken to investigate any rights of light enjoyed by neighbouring properties before commencing development works, and to ensure suitable releases or modifications of these are made to avoid a neighbour owner obtaining an injunction or being awarded damages. Either can be disastrous for the feasibility of a property development.
Beaumont Business Centres Ltd (Beaumont) owned a property in the City of London which it redeveloped in 2012.
Before the development was completed, Florala Properties Ltd (Florala) bought a property in close proximity to Beaumont’s property and raised concerns to Beaumont about Florala’s potential loss of light as a result of Beaumont’s redevelopment. Florala were also looking to redevelop the property they had just acquired which in turn was likely to lead to a loss of light to Beaumont’s property.
Subsequently, Beaumont sold the freehold interest in their property to an investor but retained certain future rights of light claims should Florala increase the height of their property.
Florala later obtained planning permission to turn their property into a hotel, which involved Florala extending their building into the lightwell between the two properties and raising the height of its rear elevation.
Having sight of the deed in which Beaumont retained certain rights of light claims when they sold, Florala still carried out their development. Beaumont sought an injunction and damages for interference with the right of light to the property they had sold.
Florala subsequently let out their property to a hotel operator on a long lease but Beaumont did not join the tenant to the proceedings nor seek an interim injunction.
Florala argued that:
- The part of the property formerly owned by Beaumont was already badly lit, so making it darker was not an actionable nuisance;
- The rights of light deed that Beaumont entered into with the buyer of their freeholder interest showed they were not genuinely concerned with protecting rights of light; and
- Beaumont were therefore trying to hold them to ransom.
The High Court rejected these arguments and found that it was appropriate to grant an injunction requiring Florala to cut back its development. As Beaumont’s hotel tenant was by now in occupation under a long lease, granted after Beaumont had first complained about the infringement, and as the hotel tenant was not a party to the proceedings, the court held that Beaumont would have needed to have joined that tenant to the proceedings to succeed with the injunction. However, the court did hold that Beaumont were entitled to damages of £350,000 in lieu of an injection.
The court has provided some helpful clarification on the following points:
- Where a property is not well lit, making it even worse can still constitute an actionable nuisance. Beaumont needed to prove that the reduction in light had made them “substantially less comfortable than before” in order to establish a claim in nuisance. In practice, this meant it had to show that, by virtue of the reduction, it was likely to cause a loss of rental income over the course of the occupational lease which was more than de minimis.
- Even though an adjoining owner or occupier is simply looking to seek a monetary payment, rather than a genuine concern about the interference with its rights to light, developers should exercise caution; it is dangerous for them to assume that they will be able to avoid a successful claim. The Judge found that a deed of rights of light, allowing Beaumont to retain certain rights of light claims, even where it no longer owned the property in question, did not amount to an agreement to extract a settlement sum. In fact, the Judge found that the developer acted in a “high handed, or at least unfair and unneighbourly, manner” in proceeding to carry out the works purely on reliance of that document.
- Developers should not assume that an injunction will not be granted where construction has been completed. The property in question here was completed in 2018.
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