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Court Provides Resolution to Potential Problem
Facing the possibility of a development on neighbouring land that will reduce your light is never welcome and the threat of such a development is not something you might care to have hanging over you.
A recent case will provide some comfort for anyone who finds themselves in a similar position. It involved a couple whose neighbours had obtained planning permission for a two-storey extension to their property.
The couple believed that the extension would adversely affect their light and they wished to prevent it being built. Their neighbours denied that it would cause loss of light, but said that they would give 14 days’ notice before they commenced work, which they did not expect to do ‘in the foreseeable future’.
The solicitors for the couple wrote to the neighbours’ solicitors threatening to issue legal proceedings unless the defendants acknowledged their right to light, undertook not to proceed with the development and agreed to pay their legal costs and their surveyors’ costs. The solicitors for the neighbours claimed that there was no justification for issuing proceedings because of the undertakings given by their clients.
After obtaining a report from a surveyor specialising in rights of light, the defendants advised the couple that they did ‘not intend to carry out the development or, indeed, any other development that would interfere with any of the property’s rights of light’. They then let the property on a five-year lease.
The couple continued their court action to recover the costs they had incurred and also to seek a declaration from the court that would conclusively establish their right to light. This was opposed by their neighbours on the ground that, for the foreseeable future, there was no likelihood of infringement of the couple’s rights.
In granting the couple’s request for the declaration, the judge contrasted the position in which an injunction is sought to prevent something with that in which a declaration of the court is sought. In the former case, there is a requirement that there is an actual or imminent infringement of a right. In the latter case, there is no such requirement.