Rights to Light Case Law Ottercroft v Scandia

In the leading rights to light case law Ottercroft v Scandia, the Court of Appeal upheld the award of a mandatory injunction for a rights to light infringement.

The Court delivered a firm judgment that reinforces the protection of property rights and the critical importance of compliance with undertakings and planning protocols.

The case, heard in July 2016, explores when mandatory injunctions will be granted in rights to light disputes, even where the interference is modest.

Background - Rights to Light Case Law Ottercroft v Scandia

Ottercroft Ltd and Scandia Care Ltd own neighbouring properties in High Wycombe. Scandia, controlled by Dr Mehrdad Rahimian, undertook redevelopment works including a new external metal staircase which, as later confirmed, infringed Ottercroft’s right to light.

These works were carried out:

1. Without planning permission for the staircase as built, which deviated from the approved design, leading the court to note that while planning permission technically existed, it did not cover the actual structure erected. This discrepancy, while not the main basis for the injunction, contributed to the overall finding that the defendants had acted in disregard of legal and procedural requirements,

2. Without serving a party wall notice, as required under the Party Wall etc. Act 1996. The proposed construction works, including the store room foundations, were likely to affect the shared wall or adjoining structure, triggering a statutory duty to notify the neighbouring owner. Failure to serve notice deprived Ottercroft of the opportunity to appoint a surveyor, assess potential damage, or impose protective measures. This procedural breach further demonstrated the defendants' disregard for legal obligations and contributed to the court's finding of unneighbourly conduct, and

3. In breach of explicit undertakings previously given by Dr Rahimian and Scandia. These undertakings had been made in writing during earlier stages of the dispute to avoid the need for interim court orders and included specific promises not to interfere with Ottercroft’s right to light, to remove scaffolding and supports, and to reinstate certain features. The court considered these undertakings contractually binding and noted that Ottercroft had reasonably relied on them rather than seeking immediate injunctive relief. Their breach, particularly in light of Dr Rahimian's awareness of potential infringements, played a decisive role in the granting of a mandatory injunction and the court's broader criticism of the defendants’ conduct.

Despite promises to halt interference and scale back the works, Scandia erected the staircase, leading Ottercroft to seek a mandatory injunction to remove it.

County Court Decision

His Honour Judge Tolson QC held:

The right to light was infringed, though the interference was relatively minor.

The undertakings were binding and had been breached.

Scandia and Dr Rahimian had acted in a high-handed and unneighbourly manner.

He granted a mandatory injunction requiring the staircase to be altered or removed and ordered costs on an indemnity basis.

Appeal and Legal Arguments

Scandia and Dr Rahimian appealed, arguing:

1. The judge failed to properly balance the competing interests, with the appellants relying on the Shelfer test and Coventry v Lawrence to argue that damages, rather than an injunction, should have been granted.

2. Dr Rahimian should not be personally liable, arguing that he was simply acting in his capacity as a company director and that the doctrine of separate legal personality should shield him from liability. However, the trial judge and the Court of Appeal found that he had acted as a joint tortfeasor, playing a decisive personal role in the planning and execution of the infringing works. His actions went beyond normal directorial duties and included breaches of personal undertakings, justifying personal liability, and

3. The costs order was excessive. The appellants argued that the judge had overstepped by including pre- and post-action costs, including party wall surveyor fees, which they contended were not claimable under the Party Wall Act 1996.

However, the Court of Appeal rejected this, confirming that the judge had not made the order under that Act, but under his general jurisdiction to award costs under Section 51 of the Senior Courts Act 1981. Pre-action costs can be deemed 'incidental to' the proceedings, particularly where the defendant's conduct before and during the litigation played a significant role in escalating the dispute. The Civil Procedure Rules also explicitly allow for the recovery of such costs where appropriate. As such, the appeal on this ground was considered entirely academic and was dismissed.

Court of Appeal’s Judgment

The Court of Appeal dismissed the appeal in full, upholding the injunction and costs order.

Key Findings:

Discretion Justified : The judge correctly exercised discretion in granting an injunction. While the <em>Shelfer</em> criteria (which guide when to award damages instead) were largely met, the breach of undertakings and bad conduct justified an injunction.

High-handed Conduct Matters : Dr Rahimian knowingly proceeded with works that infringed his neighbour’s rights and sought to conceal his actions, which weighed heavily against him.

Undertakings Are Crucial : Ottercroft relied on undertakings in lieu of court orders. The Court stressed that undermining such arrangements could flood courts with unnecessary interim relief applications.

Injunction Not Oppressive : Expert evidence showed that the staircase could be relocated at minimal cost (less than £6,000), maintaining its function as a fire escape.

Personal Liability Upheld : Dr Rahimian was personally liable not due to piercing the corporate veil, but because he was a joint tortfeasor, actively involved beyond his constitutional role as director.

Costs Properly Awarded : The inclusion of pre-action costs and surveyor’s fees was legitimate under Section 51 of the Senior Courts Act 1981 and Civil Procedure Rules.

Key Takeaways from Rights to Light Case Law Ottercroft v Scandia

Undertakings matter : Courts will rigorously uphold undertakings given to avoid interim injunctions.

Bad conduct tips the scales : Where the defendant acts in bad faith, the court is more likely to grant an injunction.

Minor interference doesn’t guarantee damages : Even slight infringements may lead to mandatory orders if trust has been breached.

Directors can be liable : If a director actively furthers the tort, they may be jointly liable with the company.

Surveyor costs recoverable : Party wall and rights to light surveyor fees may be included in legal cost awards.

This remains a powerful reminder that in rights to light disputes, neighbourly conduct, legal compliance, and respect for undertakings are pivotal.

It also clarifies the approach courts will take in distinguishing between damages and injunctions where rights are violated.

Rights to Law Case Law - Resources

Rights to Light Fact Sheet

What is a Right to Light

Rights to Light Case Law Regan v Paul

Contact : Rights to Light Case Ottercroft v Scandia

At Anstey Horne, we are specialists in Right to Light assessments, neighbourly matters, and daylight and sunlight reports. With decades of experience supporting residential and commercial developments across the UK, our team can help you navigate the legal, technical, and planning complexities.

Contact us today to book a consultation or for further advice.

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