CAN SOMEONE SHED SOME LIGHT ON THIS PLEASE?

The judgement in the case of HKRUK II (CHC) Ltd v Heaney 2010 has sent shudders down the spines of the development industry and promises to increase the insurance premiums of builders and developers against the risks of breaches of rights of light.

The facts of the case are that In 2003, Heaney purchased the former head office of the Yorkshire Penny Bank (a former bank) in the centre of Leeds - a grade II listed, five-storey Victorian building. Over several years, Heaney spent a sum of £3m restoring the building and re-instating original details in order to re-let the refurbished offices and create a conference and banqueting venue and residential accommodation on the top floor.

A building known as Cloth Court, adjoined which had been constructed as a complex of four office blocks in 1980. One elevation of Block A, later renamed Toronto Square, was five stories high with a mansard roof and was adjacent to the side elevation of the former bank.

In 2007, the then owners obtained planning permission from the local authority for the redevelopment of Toronto Square which included the addition of two floors. Toronto Square was acquired by HKRUK in late 2007 and during 2008, HKRUK notified Heaney of the scope of the planned works.

HKRUK admitted that an easement of light existed in favour of windows in the former bank, and that HKRUK, by the addition of two floors to Toronto Square would commit an actionable interference with the access of light to the former bank. The parties discussed a settlement. HKRUK made an offer to settle which was not accepted. Heaney's solicitors threatened to issue proceedings seeking an injunction to prevent the building works, but proceedings were not in fact issued. Construction commenced, and was completed in 2009.

Heaney continued to complain but did nothing more. The letting of Toronto Square was hindered by the necessity of having to disclose the dispute. HKRUK then issued court proceedings for a declaration that Heaney was not entitled to an injunction ordering the dismantling of the two extra stories of Toronto Square. Did they get it?

No; damages will rarely be given in cases of trespass unless the infringement is very minor. If a party has a property right, they are entitled to have that right upheld and an injunction will be readily given.

For further information please contact Neil Spurrier