Essay: What is the right of light and how can it be acquired?

The courts strive to find a balance between individuals, businesses and environmental concerns when planning applications arise. The right to light is a form of a negative easement. It should be noted that an easement is a right that benefits one party (dominant tenement) and burdens the servient land. Re Ellenborough outlined the characteristics of easements stating that “there must be (1) a dominant and servient land (where the burden and benefit is attached to the respective parties (2) the easement must accommodate the dominant tenement (3) the dominant and servient tenement should have different legal owners (because an easement gives a right over somebody else’s land (4) the land claimed must be capable of forming the subject matter of a grant.
Rights to light (except those acquired expressly or impliedly from a grant) are subject to prescription if it is shown that there has been a continuous use of light over 20 years nec vi, nec clam, nec precario. Such rights are acquired under the Prescription Act 1832. In this essay, we shall analyse the astounding case of HKRUK II (CHC Ltd v Heaney. This case undoubtedly empowers dominant tenements thus posing incremental risks to those infringing them but to what extent was this judgement justified?
What were the legal issues in the case and how were they resolved?
The case of Heaney brought about immense consternation amongst property developers, businesses and individuals since the court granted an injunction requiring that the servient tenement remove the upper two floors of the multimillion office block in Leeds because the claimant had infringed the defendant’s right to light.
There were a number of significant legal issues which were discussed throughout this judgement however, due to the word constraint I will only conduct a more in depth analysis on two major issues which makes this case a truly remarkable one.
1. Should damages be awarded instead of injunctions?
The leading case is Shelfer v City of London Electric Lighting Co which sets out the four requirements where damages should be awarded instead of injunctions.
(1)” If the injury to the Plaintiff’s legal rights is small,
(2) And is one which is capable of being estimated in money,
(3) And is one which can be adequately compensated by a small money payment,
(4) And the case is one in which it would be oppressive to the Defendant to grant an injunction –“
Small injury.
The judges relied on a diverse range of expert sources to determine the scope of the injury including the amount of light loss in the office. Loss of light might not be such a significant issue as in Regan v Paul Properties DPF No 1 Ltd where the loss of light was in the living room of the claimant’s maisonette” but the judges sympathised with the defendant having considered the subjective element of this criteria. As such, the judges found that it was not a relatively small injury because of the “commitment which the defendant had demonstrated in the restoration of property”. This ground of reasoning has suffered heavy criticisms but we shall elaborate on this issue in the third segment of this essay.
Compensated by ‘small’ payment of money
It was established that the defendant could be compensated in money under common law or under s.50 of the Senior Courts Act 1981. It was argued by the claimant that the courts should only consider common law damages in relation to the equation at hand however, the judges dismissed this argument stating that it would be “artificial to exclude one remedy which may become available to the court”. This is problematic because such reasoning would inevitably empower dominant owners to bargain for a higher price when surrendering their easement. This goes against the very essence of the right to light as a means of protection but rather as a way to extort even more money from servient owners.
2.The time dilemma
Another issue which was brought into light was raised by the claimant who argued that the defendant’s delay would in effect render the application for the mandatory injunction order inadmissible. The judge held that the defendant was entitled to the injunction regardless of the ‘delay’ because the claimant had a profitable motive to pursue their developments when there were less obtrusive methods available (reducing office floor space for the two floors). However, I do not believe that such legal reasoning is based entirely on rational and logical thinking. As Millett LJ said in Jaggard, such cases are dealt with in a discretionary basis and “none of them is binding authority on how the discretion should be exercised”. In some cases, injunctions are necessary as damages are often insufficiently compensated by money. However, the dominant owner knew of the proposed property development yet waited for the servient owner to bring the case to the courts which is unusual in itself. The mere fact that the test outlined in Shelfer was not satisfied does not necessarily mean that injunctions should be granted as Lord Neuberger expressly stated. A reasonably proportionate response would be the approach followed in Gafford v Graham which comprehended that the most important issue is whether the injunction would be oppressive. Hearney opens the flood gates to dominant owners who can delay their response when negotiating with the servient owners in order to establish an unfair bargaining power against the developers. This will be further discussed in the next segment of this essay.
What was at stake between the parties and more broadly?
In this segment, we will examine the wider significance of the Heaney case and its impact not only on developers. We will also evaluate whether the right to light has shifted from a conservatory right to one focused primarily on awarding disproportionate responses to the situation at hand.
The obscurity of the Shelfer test
Heaney further complicates the distinction between injunction and damages. This is troubling because under the current law, the size of the monetary payment (third criterion of the Shelfer test) is essential in establishing whether the remedy should be in the form of injunctions or damages. It is quite interesting that the judges rejected the argument proposed to only take common law damages into account. Following Heaney, a court will almost always award an injunction because of the ‘ridiculously’ low threshold that was established in this judgement. This raises the question of whether injunctions are really necessary or as Lord MacNaughten stated in Colls v Home and Colonial Store Limited:
“…the court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money”
The inconsistent nature of the Shelfer criteria concerning the remedial aspects of right to light means that it was very difficult for individuals to predict when an injunction would be granted. Readers should feel some remorse for the claimant who brought the proceedings to the courts to free themselves from this ancient protection of rights. However, the court was subdued to the tick box test when in fact the more significant questions were still left unanswered as seen in Gafford v Graham.
Delay cannot be relied upon…
It was mentioned earlier that the unreasonable delay on the part of the claimant cannot be overlooked. The defendant had ample opportunity and even threatened the claimant multiple times that they would bring the proceedings to courts however, such threats never materialised. Delay in itself is insufficient to be a relevant factor in determining whether an injunction should be granted but such facts need to be supplemented with the subsequent actions of the dominant owners. What this judgement fails to address is:
(1) whether the dominant owner is subject to take into consideration the developer’s time constraints and deadlines?
(2) When is it considered too late to take action?
This further exemplifies the uncertain and subjective nature of the Shelfer test and fails to offer any practical guidance as to how subsequent cases will culminate.
It was hoped that this case would clarify the obscure illusionary aspect of right to light however, this was to no prevail. Essentially, the ‘slavish’ nature of this case in consenting to the Shelfer criterion establishes that infringers of this right will not be able to “buy off their wrongdoing”. However, this decision inevitably undermines the protective nature of this right. Following this decision, many dominant owners could extort a significantly larger proportion of damages or acquire injunctions against developers thus hindering economic activity in order to protect an individual’s narcissistic rights.
Was this case correctly decided?
The case of Heaney provided a useful illustration of the Shelfer criteria however, this decision has been criticised by many commentators. This was because of the dominant’s owners inaction in bringing the issue to the courts as well as the “long delay and uncertainty that that caused to the developer, were given so little weight”. It may also be argued that Shelfer’s criteria fails to adequately consider the oppressive and disproportionate nature of injunctions and this issue was revisited in Coventry v Lawrence.
One of the significant issues which Lord Neuberger resolved in the Supreme Court concerned Section 50 of the Senior Courts Act 1981.They described the Shelfer criteria as “almost mechanical” and “slavish”. He further explained that:
“…when a judge is called on to decide whether to award damages in lieu of injunctions, I do not think there should be any inclinations either way”
This is a very significant statement because it enables servient owners to persuade the courts to grant damages instead of injunctions contrary to the previously established ‘unreasonable’ legal reasoning established under the Shelfer test.
If the high court in Heaney decided to grant damages instead of an injunctions, the claimant would have had to pay the defendant a total of £225,000 (as the courts rejected common law damages of £80,000). On the contrary,, the demolition of the 2 floors would set back the developers a colossal amount of £1-2.5 million. Some may argue that an injunction would be wholly disproportionate to the developer when damages could be a reasonable remedy for the infringement of the dominant owner’s rights.
For these reasons I believe that the Heaney case was not decided correctly. Applying Coventry, I trust that the decision in Hearney would have been more equitable towards the claimant. This is because the Coventry case provides an answer and precedence to most of the ambiguous questions which the law commissions poses in relation to the Shelfer criteria. In other words, a court cannot award an injunction on the basis that the Shelfer criteria has not been achieved. Although the Coventry case is a step towards the right direction, it fails to provide certainty as it stated that “the Shelfer test should not be applied so rigidly as to fetter the court’s discretion”.
The Law commission proposed the introduction of the proportionality principle into the equation. The English legal system has adopted the principle of proportionality post HRA 1998 however, proportionality may be fallible due to its subjective nature. Proportionality widens the “spatial metaphor” acting as an impediment to certainty however, the subjectivity of proportionality is either “it’s flaw or its strength” which will be determined if the courts adopt the law commissions recommendations.
Although the Coventry case sought to provide an answer to the uncertainty of the Shelfer test, it has undoubtedly widened the scope of discretion to the judges thus raising further ambiguity to stakeholders, developers and dominant owners.