A landmark court of appeal decision has decisively swung the balance against developers in rights-to-light cases.
The court has ordered Brighton developer Paul Properties to tear down part of a scheme, after local resident Dennis Regan claimed that it interfered with the light to his home.
Mr Regan brought the appeal over the 14-apartment scheme in Queen’s Road after the High Court ruled that an award of damages was the correct remedy for the interference because an injunction would cause Paul Properties great financial loss.
It was estimated that Paul Properties would lose up to £210,000 if it were forced to cut back the scheme.
The reduction in adequate light in Regan’s maisonette, from 67% to 42-45%, would have caused a £5,000 drop in its value.
Counsel for Regan argued that the judge had been wrong to find that it was for Regan to prove that he should be granted an injunction instead of damages.
Mummery LJ said that the judge had been wrong to place the onus on Regan and that it was not oppressive to Paul Properties to grant an injunction to protect Regan’s right to light.
“On the contrary, the court would not be justified in denying him an injunction and effectively forcing him to accept compensation from the defendants for losing the light in respect of his home.”
The ruling was the Court of Appeal’s first rights-to-light decision in more than 20 years and follows a high-profile dispute last year over Land Securities’ 691,000 sq ft scheme in London’s Midtown, in which the high court did not grant an injunction.
Andrew Smith, Regan’s solicitor at Child & Child, said: “Following Midtown, advisers had begun to be more confident that developers could get away with avoiding an injunction. … Developers will now have to pause before they ride roughshod over owners.”
Wragge & Co partner Anne Waltham, who acted for claimants suing LandSec over its Midtown scheme, said that developers taking comfort from the earlier decision will have to “think again”. “They must beware of carrying on with construction work in the face of genuine objections,” she said.
However, Mike Hussey, managing director of LandSec’s London portfolio, said the ruling would have “highly limited” effect in cases where developers could demonstrate reasonable attempts to negotiate with affected parties.
“The bottom line is that the conduct of the parties will clearly pay a big part,” he said. “I would be amazed if any sophisticated developer in London ended up in that sort of risk.”
Paul Properties was ordered to pay Regan’s costs of £130,000.
Regan v Paul Properties DPF No 1 Ltd and others Court of Appeal (Mummery, Tuckey and Wilson LJJ) 26 October 2006.
Stephen Bickford Smith (instructed by Child & Child) appeared for the appellant; Andrew Francis (instructed by Dawsons) appeared for the respondents.
References: EGi Legal News 27/10/06
