The Right to Light

A recent decision by the Courts has highlighted the fact that Courts will exercise their power to prevent an infringement of a right to light where the case justifies it. Stated briefly if a building has enjoyed rights to light for a continuous period of 20 years an “Easement” is acquired. If a neighbour then infringes that right it may be possible for the “injured party” to action in the Courts.

The Courts will only act if the measurement of the amount of light that has been lost – or will be lost if the development has not yet started – is substantial. For a commercial building, for example, if more than 50% of the room remains – or would remain - sufficiently lit then the Courts will not back a claim.

Assuming that there is sufficient interference what powers do the Courts have? Well the recent case of HKRUK (2010) reiterated very old case law to the effect that the starting point is an injunction and not damages or compensation. An injunction can restrain a proposed development or order demolition of a development which has taken place. Damages, rather than injunction, will be ordered if the “injury” :

•    To the complaining party’s rights were small; and
•    Was capable of being estimated in money; and
•    Could be sufficiently compensated by a small money payment; and
•    It would be over the top to grant an injunction

As the Judge in HKRUK indicated whilst the Court has the power to order compensation rather than grant an injunction a Court is not there to legalise wrongful acts.

For more information please contact John James or Paul Slater on 01785 211411

21 December 2010

Disclaimer

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances.