The court may refuse to award damages in lieu of an injunction if a developer’s conduct has been high-handed or unneighbourly.

The property world has been particularly sensitive to claims to rights to light since HXRUK (II) (CHC) Ltd v Heaney [2010] 3 EGLR 15, when the court granted a mandatory injunction for the demolition of a part of a building that infringed a landowner’s right to light. The decision appeared to put those with rights of light in an extremely powerful position – but the Supreme Court judgment in Lawrence v Coventry (t/a RDC Promotions) [2014] UKSC 13; [2014] 1 EGLR 147 followed in relatively short order. The Lawrence case shook up the law on the availability of injunctions to protect property rights – and hopes grew that the courts would become more flexible when considering requests to award damages instead. However, the Court of Appeal decision in Ottercroft Ltd v Scandia Care Ltd [2016] EWCA Civ 867; [2016] PLSCS 243 indicates that high handed or unneighbourly conduct could scupper any such request. The dispute arose out of a proposed redevelopment of property that involved the construction of an external metal fire escape in place of an existing wooden one. The landowner’s neighbour began proceedings seeking an injunction to prevent any interference with its rights to light, as a result of which the landowner gave an undertaking that there would be no interference with its neighbour’s rights. But the landowner then went ahead with the construction of the new external staircase anyway, without giving notice or obtaining planning permission, in breach of the undertaking given. The trial judge agreed that the landowner had behaved badly, in a high-handed and unneighbourly manner. Furthermore, the new staircase infringed the neighbour’s right to light. The judge noted that another form of escape could be constructed before the new staircase was removed, at a cost of less than £6,000, and granted a mandatory injunction for the alteration, replacement or removal of the newly constructed staircase. The landowner tried unsuccessfully to persuade the Court of Appeal to reverse the decision and award damages instead. It argued that the infringement was only minor, had not caused significant damage and could be measured in money. Furthermore, it had been oppressive to grant an injunction: Shelfer v City of London Electric Lighting Co Ltd [1895] 1 Ch 287. The Court of Appeal disagreed. It did not consider that it would be oppressive to require the landowner to comply with its undertaking. The landowner had endeavoured to steal a march on its neighbour and/or to evade the jurisdiction of the court. An injunction would provide justice for the neighbour and serve as a warning to others. The court also upheld the trial judge’s ruling that one of the company’s directors was also personally liable to the neighbour as a joint tortfeasor. To join the individual to the proceedings did not constitute piercing the corporate veil. The tort was both his and the company’s; he had participated in the company’s actions in ways that went beyond the exercise of constitutional control over the company, had given a separate undertaking on the same terms as the company and had been personally instrumental in pushing the project through. Allyson Colby is a property law consultant