A recent case will give property developers whose developments are likely to be opposed on the grounds of ‘taking the light’ good reason to pause for thought before pressing on with work in the face of objections.
The case involved the owner of a maisonette. Across the street from his home, properties were being developed which would result in a reduction of light to the living room of the maisonette, mainly due to the addition of a penthouse floor at the top of the premises being developed. The owner of the maisonette obtained an expert’s report which was sent to the developer. This showed that the light in his living room would be reduced from approximately 67 per cent ‘well lit’ to a maximum of 45 per cent. The maisonette owner used the room for model-making and painting, as well as reading, and considered this a serious loss of amenity. He therefore sought to prevent the development as planned by seeking an injunction restraining the developer from building a penthouse level floor as laid out in the plans. For the developer, the penthouse level would add approximately £150,000 to the value of the property under development.
Such cases are normally settled by the payment of compensation to the person whose light is affected. In the lower court, the injunction was not granted and an order was made that compensation should be assessed. The maisonette owner appealed to the Court of Appeal. During the time taken for the appeal to come to court, the developer continued building works to the original plan.
The Court of Appeal considered that the maisonette owner’s loss of amenity would be significant and not capable of rectification by the payment of a small amount of damages. It granted the injunction, requiring the developer to remove the part of the building which infringed it.
This decision contrasts with another case in which an attempt to obtain an injunction for the taking of light failed when it was revealed that for the entire prescription period, the premises in question had been boarded up, meaning that the right to light was not acquired.
