24 February 2023 by Michelle Footer

A Right to light claim: Injunction or damages?

If it can be established that a property owner benefits from a right to light which is being obstructed, or will be obstructed, by a development then the injured party has the right to commence a claim against the party causing that obstruction.

 

The injured party may seek (1) an injunction requiring the developer to prevent the works from starting, or to remedy or remove works which have already been carried out, and/or (2) an award of damages to compensate them in respect of the loss which they have suffered as a result of the obstruction.

 

If a party wants to seek an injunction against the party causing the obstruction, then it is recommended that they act quickly. Whilst an application for an injunction can be made at any time, provided there is evidential support for the claim and an arguable case for the remedy sought, the application should be made promptly.  This is because any delay may count against the applicant as it raises arguments about the necessity of the injunction.

 

It is at the Court’s discretion whether to grant an injunction.  An injunction can be applied for in the interim or as a final injunction. The process, criteria and potential risks to the client are different depending on the type of injunction applied for. Making an application for an interim injunction can prove risky for a Claimant in a right to light matter as, depending on the injunction sought, they may be required to give a ‘cross-undertaking in damages’ to the party causing the obstruction. This is a promise to pay any damages suffered by them, should the Court later decide that the interim injunction was incorrectly granted. The Claimant would therefore be exposing themselves to a significant cost risk, particularly given that it is normally possible to argue that damages would be a sufficient remedy.

 

It is therefore more common for the injured party to commence a claim for damages instead of an injunction. The Court has discretion to award damages if it considers that this would effectively compensate the Claimant for the obstruction caused by the development. The general rule is that the damages awarded should be sufficient to put the Claimant back in the same position that they would have been in if the obstruction had not occurred. The parties’ respective surveyors will put forward evidence to assist the Court in deciding if an actionable loss has occurred and, if so, the amount of damages which should be awarded to compensate the Claimant.

 

If you are considering making a right to light claim, or if you need to defend a claim, please contact Michelle Footer in our Real Estate Disputes team.

 

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