Property developers can often come across delays when working on projects and a recent case involving a right of light claim and injunction is one such example as highlighted by SAS Daniels.
Developers want to get on with building work to realise a return on their investment as any delays can eat into profit margins.
One cause of delay is a claim for right of light by neighbouring property owners. Quite often the courts, assuming a right of light is established, have erred on the side of injunctive relief i.e. preventing the proposed development, or worse pulling it down if work is already underway, rather than compensating the neighbouring property owner in damages.
However, in the recent case of Coventry and others v Lawrence and another (2014)UKSC 13 Lord Neuberger has ruled that the courts have been applying the basic test of whether there should be an injunction or damages too strictly.
The basic test was set out in Shelfer v City of London Electric Lighting Co (1895). The case provided that the court should, instead of providing an injunction, award damages if all of the following criteria are met:
- The injury to the neighbouring property owner’s legal rights is small.
- This injury can be estimated in money.
- The injury can be adequately compensated by a payment of a small amount of money.
- It would be oppressive to the developer to grant an injunction.
Unfortunately for developers the courts have been granting injunctions if any one of the above criteria is not met. Although in fairness to the courts this is what the test provided.
Lord Neuberger in the Coventry and other case has ruled that the courts should not be following this test rigidly so that the courts can exercise its discretion.
So is this a green light to crack on with developments regardless to any neighbouring rights of light and without seeking to come to an amicable agreement.
It is suggested that it would not. As is usual, each case will turn on its own facts and Lord Neuberger did acknowledge that the starting position is that an injunction should be granted and that it is up to the developer to prove that damages would be more appropriate.
Read the full article at SAS Daniels
For further information on developers and injunctions please contact Chris MacCafferty on SAS Daniels’ Dispute
Resolution team on 0161 475 7658.