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Do not ignore rights of light

Developers ignore rights of light issues at their peril. A recent High Court judgment in the case of HKRUK ll (CHC) Ltd v Marcus Alexander Heaney disproves the idea that paying damages will solve any issues arising.

Flouting a neighbouring property owner’s rights can have costly consequences, as developer Highcross subsidiary, HKRUK II (CHC) Ltd, found in September when it was ordered to demolish parts of the top two floors of its office building,Toronto Square, in Leeds, despite the building having been fully furnished and the part of the property at issue let to tenants. It is estimated that the cost to the developer of infringing the rights to light of neighbouring building owner Marcus Heaney, could be in the region of £2.5 million.

His Honour Judge Langan QC, awarded adjoining owner Heaney a mandatory injunction – rather than damages – for the ‘actionable interference’ with rights of light to the former Yorkshire Penny Bank building adjacent to Toronto Square. The case revolved around the issues arising when the developer bought Toronto Square and undertook a redevelopment programme which included building a new sixth and seventh floor. Highcross were aware of the possible rights of light issue and negotiated a discounted purchase price for the site to reflect the possible damages they considered they may have to pay.

From commencement of the development, Marcus Heaney protested to the developer, claiming that the additional height of the redeveloped building would infringe his rights of light. Highcross and Heaney had been in negotiations regarding the right of light issue, though no settlement had been agreed. However, proceedings against Highcross were never issued and Toronto Square was duly completed and partly let.

In 2009, Highcross issued proceedings for a declaration that, as a result of acquiescence, Heaney was not entitled to an injunction. However, Heaney then made a counterclaim for a mandatory injunction to force Highcross to remove the infringing parts of the two additional floors or pay damages.

The acquiescence claim was then abandoned and the judge had to determine whether an injunction or damages, should be awarded. Case law sets a precedent whereby unless four specific circumstances apply, the court will normally grant an injunction. The circumstances surrounding Highcross’s infringement of Heaney’s rights were deemed not to meet these four criteria and therefore the judge did not consider that Heaney had to accept damages. Highcross is planning to appeal against the injunction.

Watts’ rights of light specialists advise developers not to ignore this judgment. It is dangerous to assume that neighbours can simply be paid damages – developers should always consider that an injunction is a very real outcome of any rights to light claim. This case demonstrates that developers must consider and deal with rights to light issues early and efficiently and reinforces that conduct of parties will be considered by the courts.

For more information on Watts’ national rights to light advice, contact Paul Lovelock in Watts’ London office on: 0207 280 8000 or Tom Kibblewhite in Watts’ Manchester office on: 0161 831 6180.

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