Play nicely, or pull it down: Injunctions for rights of light infringements

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

Summary and implications

The Court of Appeal has upheld the award of a mandatory injunction to remedy an infringement with a right of light (Ottercroft Limited v Scandia Care Limited [2016]).

Although the infringement of light was relatively minor, heavy emphasis was placed on the poor conduct of the developer in justifying the award. The developer had “behaved badly throughout and in an unneighbourly manner”. This included commencing works without notifying or consulting with its neighbour and breaching undertakings it had previously given in order to prevent an interim injunction application. Even with judges’ new found flexibility to award damages following Coventry v Lawrence [2014], an injunction may be awarded where developers act in a high handed manner.

The facts: staircase infringed rights of light

In 2011, Scandia commenced the redevelopment of its property, erecting scaffolding and storing building materials on site without notifying or consulting with its neighbour. Perhaps inevitably, Scandia’s neighbour (Ottercroft) took quick notice and objected on various grounds, including concerns that Scandia would infringe its right of light.

The parties could not resolve their differences, and proceedings were issued by Ottercroft seeking a declaration as to its right of light and an injunction preventing interference with that right. In the course of proceedings, and in order to prevent an interim injunction application, Scandia gave undertakings to remove certain scaffolding and not to infringe Ottercroft’s right of light. In breach of those undertakings, Scandia recommenced work, including the permanent erection of an external metal staircase which infringed Ottercroft’s right of light.

The first instance decision: an injunction

At first instance, the judge awarded a mandatory injunction requiring the alteration or removal of the staircase. The judge found that the staircase had been constructed without any notice to Ottercroft, in breach of the planning permission, and in breach of the undertakings that Scandia had given in order to prevent an interim injunction application. Heavy emphasis was placed on Scandia’s “high handed” conduct.

Scandia appealed on the basis that it was oppressive to grant the injunction, and that the judge had “abdicated his responsibility to carry out a balancing exercise fairly and objectively”.

The Court of Appeal decision: injunction upheld

The Court of Appeal emphatically upheld the trial judge’s decision. The Court cited Coventry v Lawrence [2014] with approval, and emphasised that the trial judge had a discretion. In exercising his discretion, the trial judge was “entitled to consider the developer’s conduct in the round”. In particular, the judge was not only entitled to attach weight to the breach of the undertakings “but was right to do so”.

Revising Coventry v Lawrence

When the Supreme Court gave its seminal judgment in Coventry v Lawrence, developers, planners, and practitioners expected that courts would be more flexible when awarding a remedy for rights of light infringements, and that fewer injunctions could be expected as a result. That proved to be the case in Scott v Aimiuwu [2015], where the judge leaned heavily on the principles in Coventry v Lawrence and awarded damages instead of an injunction. However, that was a county court decision and doubts lingered as to the approach higher courts would take. We now know a little more.

Although an injunction was upheld in Ottercroft v Scandia, the case shows that the appellate courts have taken heed of Coventry v Lawrence and will support the flexible exercise of discretion by trial judges when granting a remedy. Ottercroft v Scandia also confirms the importance of good conduct by developers if they wish to avoid an injunction. When it comes to developments, if you don’t play nicely, expect to pull it down.

Further reading

For more on rights of light and injunctions, hereScott v AimuwuhereCoventry v Lawrence is Robin's briefing on ; and is Robin's briefing on .