Ottercroft Ltd v Scandia Care Ltd and Dr Mehrdad Rahimian CA (Civ Div) 06/07/2016, unreported
The Court of Appeal recently upheld a first instance decision to grant an injunction against a developer who infringed an adjoining owner’s rights of light, rather than awarding damages. The injunction requires the developer to remove a metal staircase in order to stop interfering with a neighbour’s right to light.
The developer had commenced work on a small mixed use development comprising a ground floor café with residential flats above. Ottercroft owned an adjoining restaurant and began proceedings to protect its right to light being interfered with by the works. The developer then gave undertakings that Ottercroft’s rights would not be infringed. Nevertheless, without notice being given to Ottercroft, a metal fire escape staircase that formed part of the works was erected, which obstructed Ottercroft’s restaurant’s kitchen windows.
The court at first instance held that the staircase infringed Ottercroft’s rights to light. The court ruled that the infringement was minor and no significant damage had been caused. Accordingly, the infringement could be measured in money. However, the court considered that the developer had acted in breach of undertakings and without planning permission. Notwithstanding that damages of around £886 would have been awarded to Ottercroft (whereas the costs of removing the staircase and installing a replacement was estimated in the region of £6,000), the court instead awarded the injunction and ordered the removal or alteration of the staircase based on the developer’s bad conduct and behaviour.
The developer appealed on grounds which included a submission that the judge had been wrong to award an injunction rather than damages.
The Court’s Decision
The Court of Appeal unanimously rejected the developer’s appeal. The usual rule is that an injunction should not be granted if damages are an adequate remedy. However, in this case the Court of Appeal agreed with the court at first instance that the developer’s conduct was such that the undertakings were as binding as an interim court order. The developer’s high handed manner, in proceeding with the works despite the undertakings, justified an injunction and was necessary to do justice to Ottercroft and to serve as a warning to others that it is not acceptable to breach undertakings as a way of evading justice.
This is the first rights of light case to reach the Court of Appeal since the 2014, when the court emphasised that injunctions are not the automatic remedy for rights of light infringements, in
Coventry v Lawrence. The court recommended a more flexible approach in the exercise of the court’s discretion to grant an injunction or award damages. Whilst each case is decided on its own facts, Ottercroft may mark a shift in the court’s approach. Given the facts of the case and the developer’s particularly poor conduct in breaching undertakings, the result is perhaps not surprising. It is however a warning and developers should take note.
A breach of an undertaking is viewed very seriously by the courts and is more likely to lead to an injunction than an award of damages. Don’t break your promises.
Be on your best behaviour. This case demonstrates the importance of being a good neighbour, in so far as possible, with those who are likely to be affected by your development. It is a strategy that can help to mitigate against infringement. Don’t be high handed or underhand, as it can increase the risk of an injunction.
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