Right to light
The liability of a developer who infringes a neighbour’s right to light has usually been limited to damages but the claimant in the case of HXRUK II(CHC) Limited v Heaney [2010] was granted a mandatory injunction which resulted in the developer being ordered to remove part of two new floors at an estimated cost of £1 to 2 million.
A right to light is usually acquired under the Prescription Act 1832. Under that Act a right to light occurs once light has been enjoyed through defined openings of a building for an uninterrupted period of 20 years. The right is to a certain amount of light and not to all of the light that was once enjoyed. To succeed in an action for interference with a right to light, it is not enough to show that the light enjoyed is less than it was before and the claimant must show that the reduction in the light enjoyed amounts to a nuisance. Mathematical calculations are used to determine whether or not a development causes an infringement and what matters is not how much light has been lost but how much is left.
The court in this case used the general four point test for awarding damages in lieu of an injunction, the first of which requires that the injury to the claimant should be small; the second, that it is capable of being measured in monetary terms; the third, that money would form adequate compensation; and the fourth that a grant of an injunction would be oppressive. Notwithstanding that the loss of light was less than 1% of the internal area of Mr Heaney’s building and the developer naturally argued that removing the floors would be oppressive, the judge considered it would be wrong for the court to sanction the developer’s action which was committed in full knowledge of Mr Heaney’s rights and with a view to profit.
This decision throws into question the accepted view that it is difficult to obtain an injunction in relation to commercial buildings where the development has already been completed. It was also previously thought that failure of potential claimants to act promptly would necessarily prevent them obtaining an injunction but that was not the case here where the trial did not take place until after the development had been completed and one of the offending floors had been let. Although it cannot be taken for granted that an injured party can delay and still obtain an injunction, this case does serve as a warning to developers not to assume that an infringement of a right to light can be settled by a money payment and that they need to identify and resolve any potential rights of light issues before commencing their development.
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