UK: Dark Times for Developers…

HKRUK II (CHC) Limited v Heaney (2010)

Recent case-law relating to rights of light has shown that a developer who ignores them does so at his peril. The decision in Regan v Paul Properties Limited (2006) was a particular wake-up call, when the Court of Appeal pointed out that the primary remedy for a rights of light infringement should be an injunction. It was hoped by some that this decision might only have implications where a development affects residential property. However, the recent case of HKRUK has shown that the Court is willing to follow the same principle where commercial property is affected. Here, the developer's decision to proceed with its building without first resolving its neighbour's potential rights of light claim will mean estimated costs of £1-2 million for the works required to adjust the redeveloped building, on top of the costs of the case itself. Further details are set out below.


This claim was, rather unusually, issued against – rather than by – the party with the benefit of a right to light; the Claimant developer sought declarations that it was free from any liability to the Defendant neighbouring owner. The parties were agreed that the Claimant's redevelopment of its building had interfered with the rights of light enjoyed by the Defendant's building. However, they disagreed as to the appropriate relief for the Defendant by way of remedy. The Defendant requested an injunction to require the Claimant to remove the relevant parts of its redeveloped building which were infringing the light to the Defendant's building, whereas the Claimant submitted that damages (at most) were an appropriate substitute. The parties also disagreed as to how any damages should be calculated.


The Court confirmed the Defendant's primary entitlement to an injunction in accordance with Regan, despite the fact that the property affected by the development in this case was used for commercial, rather than residential, purposes. However, the judge acknowledged that damages may be substituted for an injunction where all four of the following criteria (as set out in Shelfer v City of London Electric Lighting Company (1895)), are satisfied:

  1. if the injury to the complainant's legal rights is small;
  2. if the injury is capable of being estimated in money;
  3. if the injury can be adequately compensated by a small money payment; and
  4. if it would be oppressive to the infringing party to grant an injunction.

In assessing the level of injury to the Defendant's legal rights, the judge noted that this was a borderline case. However, he felt that the level of injury could not properly be regarded as "small". The judge was particularly persuaded by the character of the Defendant's building and his commitment to investing in the restoration of the property, together with the extent to which the Claimant's redevelopment had reduced the light to the Defendant's building. Taking these factors together, the judge considered that they constituted "real damage of a kind for which the Defendant should not be expected to content himself with a money payment. In other words, the injury is not small."

The judge noted that his decision on this issue should determine the case, since it meant that the Claimant had failed one of the hurdles set out in Shelfer. However, to assist any review by an appeal Court, he also gave his views on the other Shelfer hurdles and on the question of the appropriate level of damages in this case.

On damages, the judge felt that the Claimant developer would have had in mind the following figures during any hypothetical negotiations:

  • the anticipated profit from the overall development was just under £7 million;
  • the difference in value between the development with and without the "problem area" was around £1.4 million;
  • the Claimant had reduced the price paid for the building by £350,000 in order to take account of the potential light issues; and
  • the Claimant had budgeted £200,000 for settling all light issues.

In view of the reduction in the purchase price, the judge felt that the Claimant could be expected to go beyond the budgeted figure for settlement in order to obtain certainty before starting work, commenting that:

"Reasonable people want to know at an early date where they stand, and a reasonable developer does not risk his money on works which he may be ordered to pull down."

Having considered the Claimant's likely approach to negotiations, the judge then considered the fact that the Defendant had been reluctant to issue Court proceedings, indicating a lack of any serious intention to push hard in the negotiations. Accordingly, he felt that any uplift on the figure of £200,000 should be mosssdest. Following this analysis, the judge arrived at a likely settlement figure of £225,000.

Although this meant that the injury to the Defendant was capable of being estimated in money (as required by the Shelfer hurdles), the judge found that the level of damages would not be regarded as "small", even bearing in mind the likely costs of around £1-2 million required to cut back the relevant floors of the development and/or the significant value of the properties involved.

On the issue of any oppressiveness caused to the Claimant by granting an injunction, the judge did not level any particular criticism at the Defendant's delay in dealing with correspondence concerning this matter and/or in bringing any claim to protect his rights. Moreover, he was not persuaded by the Claimant's concerns about the significant costs of carrying out the work to remove the infringing parts of the building, given that the total cost of the redevelopment exceeded £35 million. The judge therefore concluded that there would be no real oppression caused to the Claimant by granting an injunction to require it to adjust the redeveloped building. In his view, this conclusion was supported by the fact that the infringement of light by the Claimant was not trivial or inadvertent and was committed with a view to profit.


This case is a severe blow for developers, as it emphasises that any party who proceeds with a redevelopment without first securing appropriate agreements with neighbours concerning rights of light does so at its peril. It is certainly no longer sensible to assume that a developer will be able to sort out damages "after the event" and/or that any neighbour who fails to take action quickly will have lost its ability to obtain an injunction.

The decision also has implications for those seeking to invest in buildings, the banks funding such investments and the potential tenants who look to take space there. Here, one of the floors to be adjusted as a result of the Court Order had already been let and the owner of the building will now have to make arrangements to relocate its tenant whilst the remedial works are carried out.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.