FREE Practice Note: quick guide to enforcing a right of light claim

Before a right of light claim can be brought, it is necessary to check that:

• the right of light exists, and
• it will or has been substantially interfered with

If a right of light does exist, a landowner can prevent someone interfering with that light.

Establishing actionable interference

Seek specialist surveyor's advice to ensure the right of light exists and has been infringed.

It is not enough that there is less light than before as there must be substantial deprivation of light that prevents the owner from carrying on his business as he did before the light obstruction. There is no fixed test, but a technical methodology developed by Percy Waldram (known as the 'Waldram test') has formed the basis of expert evidence given in rights of light cases since the early 1900s (such as in Colls). Whilst this has been criticised by the courts it is still widely used.

References: Colls v Home & Colonial Stores [1904-07] All ER Rep 5

Along with evidence of lay persons, the overriding consideration is still whether there is substantial deprivation of light according to 'the ordinary notions of mankind'.

 References: Carr-Saunders v Dick McNeill Associates [1986] 2 All ER 888

Remedies for infringement

If a right exists, there are two ways that an infringement of a right of light can be resolved:

• consent and compensation
• injunction/damages

Consent and compensation

This is the most common way of resolving a right of light claim.

If a developer is considering building, or has commenced building, negotiations should be started--the interference may be capable of being exchanged for monetary compensation or some other benefit.

The terms of any settlement agreement must be recorded in a deed. The deed should then be registered with the Land Registry using Form AP1.

Injunction and damages

A property owner whose light will be interfered with (or has already been interfered with) may apply for an injunction. This may be:

 References: Shelfer v City of London Electric Lighting Company [1891-94] All ER Rep 838

• a prohibitive injunction if the work has not started, or
• a mandatory injunction if the work has started

If successful the court can order that the development be demolished or cut back to prevent the interference with the right of light. The court also has a discretion to award damages in lieu of an injunction, so the property owner's application for the injunction should include a request for the court to order damages as an alternative remedy.

In Heaney, the claimant successfully obtained a mandatory injunction against the developer after the building work was completed. The developers had attempted to start negotiations with Heaney and he failed to act for 18 months while the development started and was completed. The developers had to demolish a substantial part of the building at great cost.

References: HKRUK II v Heaney [2010] EWHC 2245 (Ch)

This decision has been questioned due to the claimant's failure to act at the outset, but warns developers of the need to act quickly, resolve any potential claims and negotiate with property owners as soon as possible.

The burden is on the developer to show why damages should be awarded in lieu of a mandatory injunction

References: Shelfer v City of London Electric Lighting Company [1891-94] All ER Rep 838

In Shelfer, the court confirmed the 'working rule' (Shelfer rules) for awarding damages instead of an injunction was if:

• is the injury to the claimant's legal right small?
• is it capable of being estimated in money?
• can it be adequately compensated by a small money payment?
• would it be oppressive to grant an injunction?

The decision in Heaney may make it harder for a developer to resist a prohibitory injunction, since if building is yet to start then it is likely to be even more difficult to show that an injunction would be oppressive.

However, in Coventry, (a noise nuisance case) the Supreme Court confirmed there were problems with the current authorities on the proper approach to the exercise of the court's jurisdiction to award damages instead of an injunction due to the conflicting authorities since Shelfer.

References: Coventry v Lawrence [2014] All ER (D) 245 (Feb)

It confirmed that the court should adopt a flexible approach. An almost mechanical application of the Shelfer rules and an approach awarding damages only in very exceptional circumstances were wrong in principle. Nonetheless, it was appropriate to give as much guidance as possible to ensure that, while the discretion was not fettered, its manner of exercise was as predictable as possible.

The Supreme Court confirmed:

• the application of the Shelfer rules could not be mechanical
• their application must not fetter exercise of the court's discretion
• it would, in the absence of additional relevant circumstances pointing the other way, normally be right to refuse an injunction if the Shelfer rules were satisfied
• the fact the rules were not all satisfied did not mean an injunction should be granted

However, Lord Neuberger (giving the leading judgment) acknowledged there were differences between the various members of the Supreme Court on the issue of damages in lieu of an injunction and so the position is still far from clear. He commented that a degree of uncertainty was inevitable and that clearer or more precise principles would have to be worked out on a case by case basis.

Starting a claim

If there has been substantial actionable interference a claim can be started. It is crucial not to commence proceedings prematurely--the claimant must ensure there is a genuine crystallised case and a right of light that can be protected.

 References: CIP Property Ltd v Transport For London [2012] All ER (D) 53 (Feb)

Practical steps

Before starting a claim:

• review the surveyor's report and other witness evidence
• review what the main aim is ie whether to get compensation or stop any building works starting or continuing
• consider whether negotiations may be successful rather than issuing an application
• remember that a cross undertaking in damages will need to be given if an application for an injunction is made. If no final injunction is granted, the claimant has to pay damages to the developer--can the claimant afford this?
• note the chances of getting an injunction have increased since the ruling in Heaney, however this case was not re-tried as the parties settled out of court. Given the criticism of the decision in Heaney, the next major rights of light case may not be so harsh for the developer?

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