Tuesday 05 February 2013
A couple have won a ‘right to light’ legal case over a new development constructed on adjoining land.
If your property suffers some loss of sunshine as a result of a proposed new development, this does not, by itself, constitute a ground on which you can contest the planning consent.
However, it is possible to bring an action on the grounds that the new development constitutes an ‘abnormal and excessive' nuisance, which is precisely what occurred in a case recently heard in the French courts.
A couple were owners of a bungalow with garden in the Courbevoie district of Paris.
Attached to the property was a two-storey building, which was later purchased and then demolished by a developer.
The developer obtained planning permission to erect a new seven-story building on the site, to a height of 24 meters, which they proceeded to construct.
In an action in the local tribunal the couple were successful in halting the works, on the grounds that an abnormal and excessive nuisance was being caused.
This was not a view later shared by the Court of Appeal who decided that the district in which the property was located was characterized by a large number of office buildings and apartment blocks, and that the property already suffered a loss of light from the two storey adjacent building.
As a result, the court considered that the loss of sunlight within such an urban area was not an ‘abnormal or excessive’ nuisance, and so reversed the decision of the lower court.
The couple appealed the decision to the supreme court, Cour de Cassation for final determination.
The Cour de Cassation shared the view of the expert witnesses who had been called that the new development deprived the garden of any possible sunshine and had substantially transformed the southern part of their property.
The court also noted that since 2000 the density of the development on the site exceeded the limits contained in the new local plan that had been issued, following annulment of an earlier local plan dating from 1993.
Although the circumstances of this case were unusual, it’s value lays not so much in the detail of the case itself, but in the confirmation of the principle that although a development may be permitted on planning grounds, it can be challenged on the grounds that it constitutes a nuisance.
This nuisance must be one that exceeds the normal inconveniences of having neighbours, but the principle is one that the highest court in the land has now recently upheld.
Sadly for the couple the court did not order that the building be demolished, but granted them damages for the prejudice they had suffered.