The crucial question in any rights of light dispute is whether the affected party will be entitled to an injunction preventing the neighbouring developer from building or even worse requiring them to tear down part of an already completed building. Whether an injunction is granted is down to the particular Judge who hears the case and involves a large degree of discretion. This makes it notoriously difficult to predict and tricky for those advising on both sides.
Beaumont v Florala is the first rights of light injunction case we have seen in the High Court for some time. The extract below is from the decision on a Summary Judgment application by the developer who argued that due to a deed entered into by the affected owner they had lost the ability to claim an injunction. The Judge disagreed and the claim proceeded to a full Trial which is just about to finish.
The decision will be awaited with great interest by the development world as it is likely to cover many of the issues that are debated in rights of light claims. These include whether the Waldram method used by surveyors since the 1930’s to assess levels of light loss has any place in the modern world. Also under intense scrutiny is how the Court should approach the exercise of its discretion when ruling on rights of light injunctions. Depending on how that goes, the Judge may then look at how damages should be assessed in rights of light cases.
Whilst there must be a real possibility that this one will go further, the decision of the High Court could signal a significant shift in the rights of light world.
Watch this space...
On the present state of the evidence, the court is in no position the gauge whether the threatened interference with the claimant's rights of light is so trivial as to warrant the refusal of a final injunction. The defendant's application was not founded upon the extent of the threatened interference with the claimant's rights of light. In my judgment, Mr Featherstonhaugh was right to criticise Mr Wonnocott's attempt, in oral submissions, to trivialise the claimant's right to light claim. In my judgment, this application stands or falls on the effect of the rights to light deed. In my judgment, that deed does not have the effect for which Mr Wonnacott contends, of disentitling the claimant to pursue a claim for final injunctive relief. I prefer the competing submissions of Mr Featherstonhaugh