The High Court Level Decision given at the Leeds District Registry in the case HKRUK II (CHC) Ltd v Heaney will not now be verified, amended or overruled in the Court of Appeal due to the settlement out of court between the parties.
Last Summer (2010), a ruling was given where the developer of a new seven storey building had ignored a Right to Light in Toronto Square in Leeds.
The neighbouring property owner took the matter to court and did not settle out of court as so often is the practice for a financial settlement.
His Honour Judge Langan consequently instructed the top two floors to be removed via a mandatory injunction rather than award damages for the interference of the Right to Light.Â
Many commentators thought that this firm stance would be overruled when the Appeal to the Decision was to be heard in the High Court last week.
However, the appeal has been settled out of court and this has left a greater concern amongst Developers. They are now in a position with the original judgement where they need to accept (until / unless it is challenged) that parts of buildings may require removal after construction if they do not obtain appropriate permission or agreement with the neighbour prior to construction.
Neighbouring property owners with rights over a site are left in a much stronger negotiating position.
Rights to Light legislation and practice can be overridden in the Planning Stage by obtaining the backing of the Local Authority if S237 of the Town and Country Planning Act can be implemented. This enables projects for the major services and the general good to be able to benefit from the Local Authorities Compulsory Purchase Powers and to require the extinguishment or similar adjustment or curtailment of the wayleave, easement or right restricting the proposed development.Â
The developer would have to pay compensation of course. The extent to which the method of valuation in determining the appropriate compensation, following the precedent, will now have to take account of the marriage value that would be generated by the extinguishing of the right, is another question altogether.
4th April 2011