Jeremy Ferris looks at how a recent High Court case has left the law on Rights to Light distinctly unilluminated

In looking at rights to light we are taken back to an earlier age – a time before the strip lighting which enables workers to operate without a window in sight. The law on rights to light was essential to property owners enabling them to safeguard their right to a sufficient level of light from a window to enable comfortable use of a room, and even though lighting technology has moved on, the law remains as was demonstrated recently in the High Court case of HKRUNK II (CHC) Limited –v- Heaney (2010 All ER (D) 101). The “Heaney case” has left the law in an interesting position, and made it all the more important that developers and property owners get proper advice if developing in a built up area.

A right to light is a right of light to a window, so it does not affect open land.  A right can be acquired by an express grant, but it is more likely to arise by implication under statute or case law, and most likely of all is that the right will arise by what is known as “Prescription”.  This is where a right to light is obtained by enjoying the right for 20 years.  The issue for developers is knowing whether such a right exists before they start building and the neighbour protests.

The importance in looking at any potential rights to light issues early is that once a party establishes there has been an actionable interference with his right to light, there is a presumption in favour of granting an injunction to prevent the offending development starting, or even to require a building to be demolished where it has already been constructed in breach of the neighbours rights.

The facts of the Heaney case were straightforward.  Mr Heaney owned a Victorian listed building in Leeds.  The Claimants built a £35 million office block next to it which was completed in 2008.  Mr Heaney brought a right to light claim (and, worryingly for developers, the court did not criticise the fact that he brought the claim late in the development process). HKRUK asked the High Court for a declaration that they were free from liability to Mr Heaney.  Whilst it was acknowledged by the developer that Mr Heaney’s building had rights to light which had been interfered with, HKRUK argued that damages would sufficiently compensate Mr Heaney.  The court disagreed with this argument and granted a mandatory injunction requiring the removal of part of two floors of the office block some two years after it had been completed.

The court reiterated that there is a presumption in favour of an injunction in such cases. It considered the criteria for awarding damages rather than granting an injunction (contained in an 1895 case called Shelfer -v- London Electric Lighting Company).  These are that the injury to the innocent party must be small, capable of estimating in money terms; capable of compensating by a small money payment and that it would be oppressive to the offending party to grant an injunction.  In the Heaney case it was clear to the court that Mr Heaney had spent a considerable time and a lot of money restoring his property.  The judge found money could not compensate for the loss of light and the injury could not be classified as small. Requiring the developer to alter the property would be £1-2 million, but the court did not consider that this was oppressive in the context of a £35 million project.  This was notwithstanding that the court estimated that an appropriate damages figure would have been the much lower figure of £225,000.

The case was due to go to the Court of Appeal but a confidential settlement was reached which has left the law in an uncertain position.  It is reported that the office block remains intact so it appears a significant financial settlement must have been achieved.

In the Heaney case the court made it clear that it was reasonable to expect a developer to obtain certainty with regard to right to light issues before starting work.  In the case HKRUK were aware of issues when they bought the land and indeed set aside £200,000 to cover settlement of rights to light claims.  Nonetheless they carried on with the building, and even though Mr Heaney took some time to make his claim, the High Court considered the right course was to require the removal of part of the building rather than awarding damages.  Whether the Court of Appeal would have agreed is another matter, but unless and until it does consider the issue, the clear advice to developers must be to face any rights to light issues upfront and openly so that, if necessary, a court can consider the situation before building starts.

Hiding in the dark and hoping everything will work out is simply not an option!