Shedding Light on Coventry v Lawrence – how the courts have interpreted judicial remedy guidance Since the Supreme Court case of Coventry v Lawrence in 2014, the Real Estate development sector has been eager for a Rights of Light case to come before the courts so that the guidance offered around injunctive relief and the awarding of damages can be further clarified. Led by Lord Neuberger, the judges provided some direction as to in which circumstances an injunction should be imposed or where damages would be the more proportionate remedy; although the case itself regarded noise nuisance at a Motocross track in Suffolk, the Judges discussed the wider legal tort of nuisance in general, and in fact, they actually raised more questions than they had answered. Earlier this year, the first long awaited Rights of Light case since Coventry was heard at the Crown Court, where the judgement of Mr Recorder Edward Cole was handed down in Scott v Aimiuwu. Involving a dispute between the property owners of two large residential properties in Hertfordshire, the case centred on the claim of Mr and Mrs Scott whose right to light had been infringed by the substantial
extension undertaken at the Aimiuwu’s property – both parties had long discussed the possibility of extending their homes over several years, but it was the action of Mr and Mrs Aimiuwu in erecting the extension in 2012/13 that led to the dispute and subsequent court case. Injuring the Scott’s property along one side, the extension affected the light entering four windows – a workshop, utility room and bathroom – and despite the protests of the Scott’s, the Aimiuwu’s continued undeterred with the development of their home. Under pre-Coventry case law, the courts first remedy to consider, particularly in cases concerning residential property owners, is injunction; to cease the development altogether or cutback that which has already been built. However, following the Coventry case, the courts should now look to the individual circumstances to determine what the appropriate remedy should be – a list of potential factors was provided, but no concrete rules as to how to interpret them or in what situations they would apply. The clear ambiguity of the guidance in Coventry is exactly why the development sector eagerly anticipated a relevant Right to Light specific court case, and on the face of it, the ruling in Scott seems to offer comfort to developers where infringement of Rights of Light is a real financial risk.
In Scott, Mr Recorder Cole, having found that the injury to the Scott’s property was actionable, had then to deliberate on the most appropriate method of remedy – at the trial, an injunction was sought to cut back the Aimiuwu’s property by 92 square metres, which Mr Cole declined to grant as this was an action thought to be overly punitive. Instead, by quantifying the injury in monetary terms (as would have been provided by the surveyors report), Mr Cole ordered that the Scott’s receive almost £32,000 in damages – this was a mid-point between the reduction in value of the Scott’s property and the potential share of profits attributable to the extension, and he made this judgement based on the following important points;
Both properties were residential, and various planning applications and discussions had previously been undertaken by both parties The Aimiuwu’s proceeded with the extension under the misguided advice that the interference was not material and they were entitled to do so as planning permission had been granted The 50/50 rule applied to enforceability of Rights of Light is only a general rule of thumb and should not be taken as a hard and fast rule of tort law Whilst the interference with the Scott’s light was actionable, it related to secondary accommodation; the affect that this loss of light would have on the Scott family would not be as severe as if the light were infringed to their lounge or bedroom In Scott, the basis for quantifying remedy was founded in what the parties would have reasonably negotiated earlier in the claim process, and not on share of profits – in many residential Rights of Light cases, the purpose behind the development is not to increase the value of the property to obtain substantial
profits, but to enhance the quality of life of the occupiers by increasing space and comfort within the home As each and every case that reaches a court will be judged on its own circumstances and merits, it is clear to see the glaring disparity between the above circumstances and the typical commercial Real Estate developer scenario, whose main issues are direct, primary injury to neighbouring properties based on expert, professional advice – the remedy to any claimants, in the least, could be a large share of the development profits or a significant cutback or injunction which may make the whole development redundant. So despite the apparent degree of clarification of the rules around actionable remedy from the Scott case, the risk of injunction and substantial damages for the commercial Real Estate developer remains a significant financial risk, requiring careful attention in order to mitigate losses and protect Real Estate assets. Thomas Carroll Legal Indemnities understand the complexities of Right to Light issues, and have direct access to senior underwriters who can provide cover for these risks If you would like any assistance in obtaining insurance policies for your clients, or would like to further discuss the potential issues around cover for Rights of Light, please contact:
Louise Jones LLB (Hons) Dip CII, Business Development Executive, Thomas Carroll Legal Indemnities e louise.jones@thomas-carroll.co.uk t (029) 20 858 602 m 07896 648 866