Developers must ensure that they fully consider whether any adjoining owners’ rights of light will be breached well before they commence work on a development. That was the message from a recent case before the Court of Appeal in which a developer was heavily penalised because they did not take this into consideration.

In Regan v Paul Properties and others, Mr Regan, the owner of a maisonette adjacent to the development site, sought an injunction to prevent developers constructing a penthouse flat on the top floor of its development on the basis that it would partially obstruct the access of light to his living room. Mr Regan complained to the developers five months before the development of the penthouse began but the developers ignored his protests and pressed ahead to completion.

The effect of the loss of light on the maisonette’s market value was small, around £5,500. If the injunction was granted, the developers’ costs (including the costs of modifying the penthouse and the loss in its market value) would be much greater, over £200,000, and would be even more if the effect of the consequent delays to completion of the building were taken into account. The developers asked the court to award damages to Mr Regan for his loss rather than granting the injunction. Despite the fact that it caused major costs for the developers and Mr Regan’s loss was small, the court granted the injunction. The judges said that, if rights of light were breached, courts should grant an injunction rather than award damages if at all possible, even if this would cause substantial hardship to the developer.

We would recommend that developers consider the potential for breach of rights of light on every development, particularly if located in a city centre, well before the development commences and take any appropriate action to remove or minimise the risk of challenge.

Posted: October 8th, 2007 under Commercial Property.
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