Lights Out For Shelfer

Rights to Light

RIGHTS TO LIGHT

In the world of construction and property development – particular in the cities up and down the country rights to light are a hot topic and the recent case of Lawrence-v-Coventry (2014 handed down on 26 February 2014) has provided developers with what should be greater confidence in not being held to ransom.

HISTORICALLY

The often quoted and somewhat archaic lead case in this area is the 120 year old Shelfer-v-City of London Electrical Lighting Co Limited No1 from 1895, this case was often cited and until relatively recently damages in lieu of an injunction were the norm. Developers would build and anyone affected would get compensation based on a formula if their light was obstructed.

Parties dealt with rights to light on commercial terms – often concluded quickly and easily with such issue not being a major factor in the development process.

REAGAN AND HEANEY - THE CHANGE

Regan-v-Paul Properties (2006) and thereafter HXRUKI-v-Heaney (2010) turned this position on its head. Both these cases adopted a ‘Strict’ interpretation of the Shelfer rules, these rules stated damages were only relevant and appropriate if:-

  1. The injury was small.
  2. The injury could be readily compensated in money.
  3. The money payment would be relatively small and
  4. It would be oppressive to the developer to grant the injunction

Regan started the change where the Court of Appeal granted an injunction however there was some hope that was perhaps an exceptional case as it was a residential building.

Heaney nailed the lid on the issue for developers. Here there were 2 commercial buildings in Leeds. The developer constructed extensions and height alterations to their building. It was accepted the impact upon the adjoining building was not substantial – only one room in a large office building being significantly affected.

Notwithstanding this the Judge ordered the offending extensions to be torn down. The cost to the developer was huge yet the infringement and loss in value of the other building was relatively minor. The matter was going to be appealed to the Supreme Court but the parties settled and that settlement has led many developers being held to ransom as Heaney remains law. Those affected started to exploit the strict application of Shelfer

LIGHTS OUT FOR SHELFER

At last we have some light and common sense prevailing. Coventry-v-Lawrence was not a rights to light case (it was a private nuisance claim for noise nuisance) however it has provided a number of statements about the application in the modern day of Shelfer and the question of whether damages should be awarded not an Injunction.

The Judges were critical of the rigid application of Shelfer and stated the Courts should exercise their discretion. Lord Neuberger in particular has given a detailed analysis of this area in this judgement.

He accepted the 4 Shelfer rules were a good working rule but stated in today’s modern environment the fact all 4 conditions were not met should not mean an injunction should be granted. Lord Sumption even was so bold as to state Shelfer was “out of date” a comment Lord Clarke agreed with.

There has even been a suggestion that in the commercial areas where planning permission is granted injunctions should not ordinarily be granted.

ADVICE

The Judgement needs to be digested and applied by the Courts, however if you have been affected by rights to light (or any other nuisance) prospects of injunction need to be realistically revised as does the amount of damages you are able to negotiate.

For Developers it’s a sigh of relief – the chances of being ordered to stop work or held to ransom are severely reduced.