December 2010 – Right of Light Warning to Developers

A Court of Appeal case where a developer has been required to demolish a part completed development has highlighted the need for developers to consider rights to light before starting building works.

A right to light may be acquired by anyone who has enjoyed uninterrupted light through an opening without specific consent for more than 20 years. If a new development limits the amount of light coming through a neighbours window and as a result about half of the room becomes inadequately lit, this would constitute a legal injury which would mean that the injured party could serve an injunction against the developer and be entitled to compensation.

The case of Regan v Paul Properties highlighted that even if a scheme has been granted planning permission, it does not mean that there might not be legal right to light issues.

Mr Regan owned a maisonette comprising the first and second floors of a property. The owners of the next door site were developing two properties opposite Mr Regans premises into shops and flats, including a penthouse. After inspecting the plans before work commenced, Mr Regan considered that the penthouse would interfere with his light. He protested and, when the work continued, he issued proceedings for a mandatory injunction and an interim prohibitory injunction until trial. The defendant gave appropriate undertakings and suspended work.

After making its way to the Court of Appeal, this case held that the injury to Mr Regan was signifcant, in terms of loss of amenity, and that the injury to the value of his maisonette was more than could be compensated for by a money payment. They stated that the defendants had taken a calculated risk in proceeding with the works and could not complain about the consequences.