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Right to light

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When assessing potential development opportunities developers must ensure that they secure the release of any possible rights to light held, because it cannot be assumed that they can be avoided after construction has been completed. In HKRUK II (CHC) Ltd v Heaney1 the court was asked to determine the appropriate remedy following interference by one party with the right to light enjoyed by the other party’s neighbouring building. It was decided that an injunction, rather than damages, was the most appropriate remedy where there had been an actionable interference with access to light. In coming to the decision the court applied the principles in Shelfer v City of London Electric Lightning Company2. It was held in Shelfer that for damages to be awarded in lieu of an injunction it would require exceptional circumstances; it would have to be shown that there was minimal injury to the other party’s legal rights, capable of being estimated in money and that the injury caused was one which could be adequately compensated by a small amount of money. The interference suffered by Mr Heaney in HKRUK II (CHC) Ltd v Heaney was held not to be insignificant and therefore he should be entitled to an injunction. The court felt that because of the nature of the interference, and because HKRUK had committed the offence with the knowledge that that what they were doing was actionable, that it would not be oppressive to grant the injunction. The case stands as a stark warning to anyone planning future building development to make sure that before they begin construction they secure the release of any rights to light in return for compensation. Although the decision is being appealed by HKRUK should they lose that appeal they face the unenviable task of having to remove the offending floors at significant cost. - For additional information or comment please contact: Edward Worthy of Gepp & Sons. The above is not legal advice; it is intended to provide information of general interest about current legal issues.

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