Fight for your right...to light

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Article

20 April, 2020

Urban environments are becoming increasingly cramped at ground level with every square inch of space taken up. Yet these areas are becoming busier and busier requiring more space. What can't spread out, must therefore go up. But what does that mean for rights to light?

In Beaumont Business Centres Ltd v Florala Properties Ltd [2020] EWHC 550 (Ch) the Courts were asked to consider the effects of development works and the right to light, and the potential remedies available.

Facts

Beaumont Business Centres Ltd (B) owned a property in London and were intending on adding a 6th floor. Florala Properties Ltd (F) purchased the property to the north of B's building. F became concerned about the impact B's proposed development works would have on their property's right to light, and entered into discussions with B. It transpired that F in fact had plans to develop their building in such a way that B's right to light may be interfered with. These discussions sadly did not end in agreement.

B sold their property to an investor who then leased the property back to B. As part of the tenancy, a Right of Light Deed was entered into between B and their new landlord which stated that any claim for interference with right to light whereby F's development exceeded 11.25m would belong to the landlord. Anything below this height would belong to B.

F obtained planning permission to extend into the lightwell between the two buildings, and raise the rear elevation. Crucially, the elevation did not exceed 11.25m. F prepared an offer letter to B, however, upon seeing the Right of Lights Deed, did not send the letter. The development continued and was finished and in December 2018, F let the property to a hotel operator.

B objected to the works and sought to engage with F by making suggestions which would avoid interfering with the right to light. These were not employed by F and so B issued proceedings against F seeking an injunction and damages in nuisance.

F sought to argue that B had no genuine concern for the availability of light, as demonstrated by the Right of Light Deed entered into. F believed that this was nothing more than a ransom demand by B.

Nuisance

It is well established law that to succeed in a claim for right to light, it is not enough to show a net reduction in the light available to a property, it must be shown that this reduction caused a nuisance. In this case, B had to show that the property was less comfortable and convenient than it had been before F's development and that they were likely to suffer a loss of letting income which was more than trifle or de minimis.

Remedy

How do you solve a problem of right to light where the developments are completed? The established position is that an injunction or compensatory damages may be awarded. It is for the Defendant to show that an injunction is not suitable.

In this case, B made reasonable attempts to suggest alternative works which would not interfere with the light, and F failed to consider these or take them on board. As such, the Court felt that they acted "unjustly and unneighbourly".

The Courts held that B was entitled to an injunction, but that in order to obtain this, F's tenant would have to be joined into proceedings in order for them to be heard on the matter. B was, therefore, entitled to negotiated damages of £350,000 which is a sum that, if acting reasonable, B and F would have come to in exchange for B giving up their rights.

Comment

This case shows how important it is for right to light claims to be addressed, taken seriously, and solved prior to development. Florala were lucky in this case. What would the Courts have decided if they had not granted a lease to someone not a party to proceedings?

If you have any concerns about a development affecting light to your property, or if you are developing a site and wish to discuss the impact this may have on the properties around you, please contact our specialist Property Litigation team.

For more information contact Laura Hallett Lea in our Dispute Resolution department via email or phone on 0333 207 1141. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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