In a recent blog post we discussed the impact a landmark case (Coventry v Lawrence) had upon the law of nuisance. The case was also significant in relation to injunctions and has rewritten the rules in this regard. The law as rewritten will potentially be of relevance to developers and the problem of rights of light.
A developer will be only too aware that a proposed development may infringe adjoining land owners rights of light and a balancing exercise needs to be taken as to whether any infringement of those rights of light will be actionable or not. If an actionable breach occurs, then the developer faces the risk of injunction. Following a 2010 case* , this risk was highlighted when the developer was ordered to tear down newly constructed floors atop commercial premises.
For over 100 years, the courts have followed a ‘working rule’ which states that the ‘starting remedy’ for a successful claimant in nuisance claims (which include actionable rights of light claims) is an injunction, unless a four stage test can be satisfied by the defendant, in which case damages in lieu of an injunction should be awarded by the court. It follows that an injunction should be ordered unless:
1. The injury is small
2. The injury is capable of being estimated in money
3. The injury can be compensated by a small money payment
4. It would be oppressive to the developer to grant an injunction
In Coventry, the Supreme Court held that the courts had too rigidly applied this working rule and this had led to instances (such as the 2010 case) where a failure to satisfy all four rules had automatically led to the imposition of an injunction, thereby removing the court’s entitlement to apply discretion in the matter.
The Supreme Court has now taken the view that although the ‘starting remedy’ is that an injunction should be granted and it is for the defendant to show why an injunction should not be ordered, this does not mean that there should be no inclination either way on the part of the court as to whether or not an injunction should actually be granted.
Rather, the outcome ought to depend upon all the evidence and arguments in issue. It added that, in taking account of the ‘working rule’ when going forward, it would usually be right not to order an injunction if the four tests were satisfied but, crucially, the fact that a defendant might not be able to satisfy all those tests did not mean that an injunction should then be granted. The product of this is to restore judicial discretion to the outcome rather than have this dictated by the equivalent of a ‘form filling’ exercise.
So why is this significant?
Well, it is a big change to the way the courts have approached applications for injunctive relief in the last 100 years or so.
But more importantly for developers, it brings discretion back into the fold and gives rise to the possibility that although a developer is not able to tick all four boxes of the ‘working rule’, an injunction, requiring a development to be torn down, will not necessarily be granted.
Other factors will now be considered and for example, where a claimant has delayed in dealing with the development, or failed to engage with a developer’s earnest attempts to address issues of rights of light, this might have a bearing upon the court’s readiness to grant an injunction.
Whilst it should not be taken for granted that there is now an open door for developers to build at no risk of injunction, there is some hope that issues such as rights of light might be dealt with more fairly than the onerous decisions of late have suggested.
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*HKRUK II(CHC) Limited v Heaney