Rights to light: developing issues

The case of Beaumont Business Centres Limited v Florala Properties Ltd concerned a claim by the tenant of a building against the owner of a neighbouring building. The owner of the neighbouring building intended to carry out works to increase the height of its building. The tenant sought a final injunction restraining the neighbouring owner from infringing its right to light in consequence of the increase in height of the neighbouring building, together with an order that any increased structure be demolished and damages for any loss suffered.

The neighbouring owner applied for summary judgment (ie it asked the court to decide the case without a full trial) arguing that there was no realistic prospect of a final injunction being granted on the basis that the injunction was not being sought to protect the tenant’s right to light but merely to extract a payment from the neighbouring owner. There is a view that showing a willingness to accept damages demonstrates that the infringement of light is capable of being compensated by money and acts as a bar to a claim for an injunction.

To support its case the neighbouring owner relied on the contents of a deed entered into between the tenant and its current and former landlords concerning the rights to light at the building. The deed evidenced an agreement between that parties as to what would happen if the neighbouring owner ever proposed to increase the height of the neighbouring building such that it had the effect of reducing the light reaching the building. In this event it was agreed between the parties to the deed that the current landlord would allow the former landlord and the tenant to negotiate a settlement with the neighbouring owner.

The court refused to decide the matter without a full trial. The court concluded that the tenant was entitled to seek an injunction and have its case determined at a full trial. The court was unable to decide at this early stage of proceedings whether the increase in height of the neighbouring building and the threatened interference with the tenant’s right to light was so trivial as to justify the refusal of an injunction or an award of damages following the guidelines laid down by the Supreme Court in Coventry v Lawrence [2014] UKSC13.

The court did not accept that the terms of the deed demonstrated that the case was brought merely to extract a payment from the neighbouring owner; accordingly, the existence of the deed did not bar the tenant from seeking an injunction. The terms of the deed merely made it clear how the proceeds of any release payment negotiated with the neighbouring owner would be distributed. The neighbouring owner was not a party the deed and the deed did not compromise the tenant’s right to bring a claim for an infringement of its right to light unless the former landlord required it to do so by way of settlement with the defendant. There was no evidence before the court that the former landlord would require this.

While the outcome this case may be interpreted as an indication of the court’s willingness to protect a right to light claim this case turns very much upon its own facts. The terms of the deed made between the tenant and the current and former landlords of the building were crucial. Although the terms of the deed did not assist the neighbouring owner to dispose of the tenant’s application for an injunction by way of summary judgment nevertheless the case does highlight the importance of developers carrying out due diligence on neighbouring properties to identify deeds and documents that might be of value in blocking an injunction application at an early stage.

In this case the deed was registered at the Land Registry and available for scrutiny by the neighbouring owner. Other matters which may be revealed by a Land Registry search, and which assist a developer, include reservation of development rights provisions which may be registered against the title of neighbouring properties.

Beaumont Business Centres Ltd v Florala Properties Ltd [2018] EWHC 2112 (Ch)