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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Handstone Investments Ltd v Abri Group Ltd [2024] EWHC 3523 (Ch) (08 October 2024) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2024/3523.html Cite as: [2024] EWHC 3523 (Ch)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)

		Rolls House 7 Rolls Buildings London EC4A 1NL
		Date Of Hearing: 8 October 2024

MR JUSTICE TROWER:

1. This is an application by Handston Investments Limited for a prohibitory interim injunction to restrain the defendant, Abri Group Limited, from continuing to construct a building on its land in Broadstone, Dorset, on the grounds that the development will infringe rights to light benefiting a building on the claimant's land.
2. The background can be stated very shortly, and I can summarise it as follows. The claimant has owned a building known as 7 Arrowsmith Court (the "Building") since 1992 and has enjoyed uninterrupted passage of light over the adjoining land, now owned by the defendant, for over 20 years. It claims to have acquired rights of light through some of its windows by prescription.
3. The defendant is a not-for-profit housing association, which has a substantial presence in the sector, owning and managing some 50,000 homes and working with some 36 local authorities. It acquired the adjoining land as recently as 22 December 2023 with the benefit of planning permission, which had been granted three years or more earlier. It is now in the process of building a four-storey building, by which I mean ground plus three further storeys, containing 33 flats, all of which will be used for affordable housing to be occupied by tenants from the local authority waiting list. Work commenced on 22 January with an anticipated date for practical completion of November 2025.
4. Shortly before the work began, the defendant's rights of light surveyor contacted the claimant to inform it of the defendant's purchase of the adjoining land and requested access to inspect the Building and to identify any loss of light and, if possible, agree compensation. Since then, there have been discussions between the surveyors and correspondence in which the claimant sought to persuade the defendant to make suitable cutbacks to the development scheme to avoid infringing the claimant's rights to light, but with no success.
5. The claimant served draft proceedings in mid-June 2024, which were then issued on 23 September 2024. The present state of play is that the development is currently at first floor level, and according to the claimant's surveyor the works are close to the zone in which they will encroach on the claimant's rights and may already have done so. The development is very close to the Building, and it is accepted that it will affect passage of light to the windows.
6. The first question on the application is whether there is a serious issue to be tried. The claimant has produced evidence that the Building benefits from rights of light and that completion of the defendant's development will give rise to a likely and lasting infringement. Against that background, it is accepted by the defendant that there is a serious issue to be tried. The way it is put by the defendant is that, although the claimant is a property investor, and despite the fact that the development is in the public interest, it is possible that the defendant will be granted a permanent injunction at trial. This means that there is a serious issue to be tried that completion of the development will deprive the occupier of the Building of sufficient light, and it also means that there is a serious issue to be tried that injunctive relief to restrain that interference will be granted at trial.
7. However, it is important to note that there is disagreement between the surveyors as to the correct basis for modelling the extent of the potential loss of light. This goes to the extent to which the impact of the defendant's development will interfere with the rights in respect of which it is arguable that the claimant has a claim. In order to set this in its proper context, the defendant's position is that the value of the claimant's actual loss as a result of the interference, based on the existing rental value of the Building, is just short of £16,000.
8. In light of the defendant's acceptance that there is a serious issue to be tried, the next question is whether damages are an adequate remedy. As Mr Weekes KC, who appeared for the defendant, points out, the assessment the court must make is whether, if the claimant were to establish at trial its right to a permanent injunction, it would be adequately compensated for the loss which it suffers as a result of the defendant continuing to do what is sought to be enjoined between the time of the application and the time of the trial. As to this, I should deal with one point at the outset. There is no question that the defendant would be able to pay any damages which the court may award. The claimant does not argue to the contrary.
9. The claimant says that damages are not an adequate remedy because it is attempting to protect a property right, and there will be an enhanced risk of a long-term interference with that property right if an injunction is refused at this stage. This is because of the unlikelihood of a mandatory injunction being granted at trial to take down that which would have been prevented if an interim injunction had been granted.
10. Mr Tipler also made a submission, which he outlined in his skeleton argument and developed a little in oral submissions, that there was a prima facie case for an injunction in a case such as this. But I accept Mr Weekes' submission, that the expression of a prima facie case in this context is capable of being misleading if it is not fully understood what is meant by it. In Lawrence v Fen Tigers Ltd [2014] AC 822 at [122], Lord Neuberger PSC said that, subject to the burden of proof, there should not be an inclination either way whether or not to grant an injunction in circumstances of this sort. It seems to me that that is the basis on which I should proceed when assessing whether or not an award of damages is an adequate remedy.
11. As to the adequacy of damages as a means of compensating the claimant for the inference with its rights, it seems to me that there are two aspects which require to be considered. The first assumes that a prohibitory or mandatory injunction will be granted at trial, the precise nature of which will depend on the stage which the development has reached at the time of judgment, i.e., the extent to which it is necessary for the injunction to be mandatory as opposed to merely prohibitory at that stage in order to vindicate the claimant's rights. The question then is the extent of the damages to which the claimant is entitled arising from the fact that, prior to the cessation of the development works or their partial demolition, the development had interfered with the claimant's rights of light.
12. It is said by the defendant that, in the absence of a complaint by the tenant, the claimant will in fact suffer no loss. There is no evidence that the tenant objects to the interference (the tenant only objected at the time that planning permission was granted and there has been no subsequent objection) and the claimant will continue to receive the rent to which it is entitled during that period. It seems to me that there is force in that submission.
13. But a rather more difficult question arises if the claimant is able to contend that it is less likely to obtain a permanent injunction at trial than would be the case if the work causing interference with the claimant's rights were to be stopped at this stage. In other words, is it relevant at this stage that it is less likely that the claimant will obtain a mandatory order to dismantle the offending parts of the development than it would be to get an order to restrain its erection in the first place?
14. It seems to me that this is a very relevant consideration in the present case because one of the results of the defendant continuing to do what was sought to be enjoined between the time of the application and the time of trial is not just that the rights would have been interfered with during that period but also that he will have lost, or at least made materially more difficult, the opportunity to preserve those rights through injunctive relief at trial. The consequence of this is that the court is now required to consider the prospect of whether or not damages will be an adequate remedy at trial.
15. It seems to me that there are good prospects that they would be, based on the principal factor which informed the approach of Peter Smith J in Midtown Ltd v City of London Real Property Co Ltd [2005] 1 EGLR 65 at [76]. This factor was that, like the present case, the claimant was "only interested in the building from a money-making point of view". In that circumstance, the diminution of the value of the building is compensable in damages.
16. Mr Weekes submits that it goes rather further than that. He said that when the trial does take place, it is unlikely that the judge will be deterred in granting a mandatory injunction if he considers that that is the right approach to adopt. He points out that, if the court is prepared to grant an order for expedition, which I have already indicated is an appropriate relief to be granted, it is going to be possible to have a two day trial in January, by which stage only a relatively limited amount of additional work will have been carried out. The claimant will then be very much assisted by the fact that it has made the current application. To strengthen the point, the defendant has offered an undertaking that it will not argue that a relevant factor as to why the court should not grant mandatory relief is that work has been carried out between now and the date of the trial.
17. Taking into account those two considerations, and the matters which I identified earlier in this judgment, it seems that there is a strong argument for saying that damages will be an adequate remedy for the claimant. Therefore, it is not necessary for the court to go on and consider whether or not damages would be adequate on the cross-undertaking in damages which the claimant offers in support of its application. I think, however, that it would be wrong for the court not to go on and identify some of the factors on the balance of convenience; i.e., the factors which go into the mix when determining whether or not an injunction would be appropriate if damages were not to be an adequate remedy.
18. I mention the following factors. The first is that planning permission was granted in 2020 and this is an application which has only come to a head at a relatively late stage, when the development has been long in its progression. The second factor is that the development is one for which there is a public interest, in the form of allocating housing to those in housing need. The third is that I am satisfied that there has been no material complaint from the lessee who occupies the Building, apart from the original objection at the time planning permission was granted.
19. Set against that, Mr Tipler submitted that this is not a case in which it has ever been said that the development will never be delivered if injunctive relief is granted. It is simply a question of adapting the existing plans for the purposes of ensuring that there is a sufficient cutback not to interfere with the rights of light. He also points out that the effect of not granting an injunction is that there will be a lasting impact on the claimant's rights anyway if an injunction is not granted at trial. But, perhaps most substantially, he asserts on the balance of convenience that the status quo ante points to the grant of an injunction because it will preserve the position as at the present state of the development. He also relies strongly on the fact that this is a case in which there appears to have been what he asserts to be a cynical breach in the sense that the claimant went ahead with the scheme as planned and must be treated as having known that it would inevitably infringe the defendant's rights.
20. When setting those factors against each other, it seems to me that the balance of convenience would have come down in any event against the grant of an injunction, largely because of the stage which the development has reached and the fact that no attempt was made before the commencement of the works to try and resolve the issues. But, as I say, I do not decide this case on the balance convenience. I decide the case on the basis that I am satisfied that in all the circumstances of this particular case damages will be an adequate remedy. I will therefore make the appropriate directions which flow from this decision.
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