Rights to Light update: How your behaviour with neighbours will impact your risk of an injunction
A recent decision of the Court of Appeal is a stark example of the effect conduct has on the court's discretion to grant an injunction.
Since the case of Coventry v Lawrence, the court has been reminded of the requirement to weigh up competing factors to assess whether an injunction is appropriate in each case.
In Ottercroft Ltd v Scandia Care Ltd and another, Scandia wished to develop a property into a block of flats and needed to erect an external stairwell as a fire escape. The developer proceeded with this work despite protests from Ottercroft that the stairwell infringed their right to light.
At trial a number of factors pointed towards damages being paid in place of an injunction as the injury to Ottercroft was small and could be compensated in money. However, the conduct of Scandia "overwhelmingly influenced" the decision in favour of granting an injunction as:
- Scandia continued with work despite providing contractual promises (known as undertakings) to the neighbour that it would be halted;
- Scandia failed to comply with the terms of the Party Wall Act 1996; and
- An alternative scheme was available where the offending staircase could be easily moved to another location which did not affect Ottercroft's right to light which was not oppressive to the developer.
The Court of Appeal was not willing to go behind the court's analysis of the facts and upheld the injunction. They stated specifically that as a matter of policy there is a need for reliance on undertakings to avoid the court being inundated with cases.
It is worth noting that the key director of Scandia was found to be jointly liable with the company for complying with the injunction and the significant costs of the proceedings due to his involvement in the giving and breach of the undertakings.
Whilst the facts of each case will influence the court's decision, developers should be aware that their conduct will be considered from the very start. "High handed" behaviour could tip the balance in favour of an injunction, especially if a viable alternative is available that they have failed to consider in the development.