Rights to light often pose problems for developers, who may have to pay significant sums for their release. The litigation in Beaumont Business Centres Ltd vFlorala Properties Ltd [2018] EWHC 2112 (Ch) focused on the effect of a rights to light deed entered into by the owners and occupiers of an office building in London.
The freeholder owner granted an associated company a 15 year lease of most of the building in question before selling the freehold to a third party. And, in a sign of the increasing importance of rights to light claims, all three parties executed a rights of light deed addressing what should happen if the owner of a neighbouring property were to want to increase the height of its own building by up to 11.25 metres. In that situation, the seller was to receive any settlement sum paid by the adjoining landowner during the next 15 years.
In due course, the neighbouring owner did seek to increase the height of its building within the specified limits – and, although the tenant did not seek an interlocutory injunction, it did issue proceedings for a final injunction to prevent, or cut back, the development. Further or alternatively, it sought damages for any interference with its rights to light.
The existence of the deed was recorded – “incautiously” the judge suggested – in a restriction registered against the title to the property. And, because injunctions are granted in cases where money does not provide adequate compensation for an alleged wrong, the adjoining landowner argued that the arrangements made in the deed showed that this was a case about money, and not about the preservation of rights to light.
Was the owner of the adjoining property entitled to summary judgment on the tenant’s claim for an injunction? The tenant argued that the contractual arrangements made in the deed were irrelevant and did not indicate a willingness to release rights of light in return for money. It was a high-class serviced offices provider and the nature of its accommodation was highly important. This depended on the size of the windows in its properties and the proposed development would have a substantial effect on the amount of natural light that its building received.
The judge decided that the existence of the rights to light deed did not mean that the tenant had no realistic prospect of obtaining an injunction. Therefore, the tenant’s claim for an injunction should be allowed to proceed.
The deed did not remove the tenant’s right to seek an injunction, although the seller was entitled to require the tenant to join in any settlement with the adjoining landowner. But there was no evidence to suggest that the seller was contemplating any such settlement. And the tenant was entitled to pursue a claim to restrain any actual or threatened infringement of its rights to light, unless and until it was called upon to settle its claim. But the judge did add that any final injunction could be made subject to any further order made by the court if, at some future date, the seller were to require the tenant to settle with the adjoining owner pursuant to the provisions of the rights to light deed.
Allyson Colby, property law consultant
