The construction of buildings which interfere with third-party rights and the risk of injunctions and claims for damages
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Andrew Francis is a barrister in practice at Serle Court Chambers, Lincoln’s Inn. He has a specialist Chancery practice which includes the law of restrictive covenants and rights of light. He is the author of the leading textbook on the former and the co-author of the leading textbook on the latter subject.
Abstract Developers and their agents (lawyers, architects, surveyors and planning consultants) need to be aware of the risks that accompany development projects where that development infringes third-party rights. The third-party rights under discussion are rights under restrictive covenants and easements. The former are obligations which restrict the use of freehold land and the latter are legal interests in favour of third parties, such as rights of way, rights of support for land and buildings and rights of light. Rights of light and restrictive covenants are given prominence in this paper in view of the recent decisions in the courts which have considered them. The ultimate risk for developers is that an infringing development (eg a building or structure) may be the subject of an Order of the Court which requires the developer to pull down all or part of it.
Keywords: building, injunction, light, covenant, damages
TERMINOLOGY This paper does not deal with detailed law, but for the reader who is not a lawyer there are some terms used which may require explanation. These are ‘injunction’ which is an Order of the Court stopping something from being done (‘prohibitory’) or requiring something to be done (‘mandatory’).
Andrew Francis Serle Court 6 New Square Lincoln’s Inn London WC2A 3QS, UK Tel: þ44 (0)20 7242 6105 Fax: þ44 (0)20 7405 4004 E-mail: [email protected]
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EXAMPLES TO BE USED The first example is a fairly common one of an extension to a residential building which infringed a restrictive covenant and rights of light, causing measurable loss to the party who had the benefit of that covenant.1 The second example is one of a major inner-city redevelopment where rights of light were being infringed.
HENRY STEWART PUBLICATIONS 1744–9545
Journal of Building Appraisal
VOL. 1 NO. 3
PP 274–281
The construction of buildings which interfere with third-party rights
Each of the examples given above has attracted the attention of the courts in recent months. The first example is based on the facts of Deakins v Hookings2 and Mortimer v Bailey3 and the second is based on those in Midtown v City of London Real Property Co.4
QUESTIONS WHICH ARISE These are: – At what point does the risk of an injunction arise? – How can such a risk be avoided or lessened? – What is good practice for developers? Note that this paper does not discuss the position under the planning laws. It is important for developers and their advisers to understand that the planning laws touch upon different areas of law and raise issues which are not material in the civil law under discussion. It should be appreciated that the fact that planning consent has been granted does not render the development immune from action in the c
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