Bad conduct gets you nowhere: right of light appeal rejected

Ottercroft Ltd v Scandia Care Ltd

The Court of Appeal has upheld an injunction granted for a breach of right to light owing predominantly to the developer’s bad conduct.

Right to light

A right to light is a proprietary right, an easement. For it to exist there must be a building with apertures which receives light which passes over other land. This right gives the owner of a building the right to maintain a certain level of natural daylight and object to a sufficient obstruction of that light.

There are a number of ways a right to light can be acquired, the most common of which is by 20 years use without interruption pursuant to the Prescription Act 1832.

Like other easements, when there is an actionable interference with an existing right, the owner of the right may seek an injunction for the interference to the right (that is, the obstruction to the flow of light) to be removed and/or seek damages in lieu of an injunction.

The facts in Ottercroft Ltd v Scandia Care Ltd

The First Defendant constructed a metal fire escape staircase, which blocked the window of a nearby restaurant; this was in breach of undertakings given by it and by the Second Defendant, a director of the First Defendant.

A published case summary states that the trial judge heard as evidence that the Second Defendant kept his neighbours “in ignorance of his plans” despite knowing they “might infringe a right to light.”

The trial judge stated that the infringement was “minor”, no significant damage had occurred and that the damage could be measured as a monetary award, however, it was the behaviour of the Second Defendant that ultimately proved costly. In this case, the conduct of both the First and the Second Defendant gave the trial judge an “overwhelming reason” to grant an injunction, as opposed to damages for what was a relatively minor breach.

The appeal

The Court of Appeal upheld the decision of the High Court for injunctive relief stating that whilst the breach was minor, the bad conduct ought to be taken into account. One point to note regarding this case is that the estimated cost of altering the alleged infringement (the staircase) was £6,000, a figure which was “not oppressive” for the First Defendant. Whilst the court has upheld the injunction in this case, it does not mark a change of court policy. It is however, a reminder that the court will be influenced by the conduct of each party. You should, therefore, ensure you conduct yourself appropriately in any dispute you may have with others….you have been warned!

For further information, please contact the Real Estate Disputes Team at Hamlins.