Property owner can have right to light protected even if it is not under immediate threat

In his High Court ruling, Mr Justice Richards said that it was enough that there was a "real and present dispute" between the property owners, Mr and Mrs Pavledes, and their neighbours, Mr and Mrs HadjiSavva. The HadjiSavvas had obtained planning permission to build a two-storey extension on their property which the Pavledeses said would affect their 'right to light'.

Property law expert Theresa Adamson of Pinsent Masons, the law firm behind Out-Law.com, said that the ruling would assist property owners in similar cases. Although the HadjiSavvas had assured their neighbours that they would not begin work "in the foreseeable future" without giving 14 days' notice to the Paveledeses, they did so while maintaining that their planned work would not affect the Paveledeses' right to light.

"The judge came to the view that it would serve a useful purpose to grant declaratory relief precisely because it would bring resolution and finality to the issue and without a declaration, the claimants would have been left in a position of uncertainty, with the defendants reserving the right to re-assert their prior position on 14 days' notice given at a time of their choosing," she said.

"The message from this case is that defendant developers cannot successfully defend actions for declaratory relief on the basis that they have no intention of developing in the foreseeable future but at the same time attempting to reserve their position by making no admissions as to the claimant's rights, or very limited admissions as was the case here," she said.

A right of light gives the owner of a building with windows the right to maintain a level of natural daylight by objecting to construction or any other obstruction. The right to light can be created if granted expressly by deed, or granted by implication. It can also be established in some cases through the enjoyment of light through a window without interruption for a period of 20 years, even if the other party has not consented.

In a case last year a company which owned properties on the Crossrail route was not granted a similar declaration against a developer that had worked up plans for the site which the company, Aviva, said would infringe the properties' rights to light. The developer did not own the site, but it had a right of pre-emption to build on the site. It applied for planning permission for the development not long after the beginning of the legal proceedings. Assuming planning permission was granted, it would be five years before it would be able to exercise its rights over the property and begin the proposed development.

Mr Justice Richards upheld this decision when deciding whether to make a declaration about the Pavledeses' property. Aviva was not granted a declaration because its claim was "premature and would serve no useful purpose for now ", he said. This was not the case in the Pavledeses' dispute with the HadjiSavvas, as the dispute had been ongoing for at least two years before legal proceedings began, he said.

"There was clearly a very real dispute in January 2012 and in the period leading up to it," he said. "The defendants, through their surveyor, had for some considerable time vigorously asserted that the claimants' property enjoyed no relevant rights of light and that the proposed development would not in any event interfere with them. The defendants' position changed in January 2012, but only to the extend of informing the claimants that they were seeking new advice and that they would not proceed with that part of the proposed development which might interfere with the claimants' alleged rights of light save on 14 days' notice."

"In my judgment, the terms of the defence and the undertakings given before the issue of proceedings cannot be said to have laid to rest the very sharp dispute which had previously existed ... In these circumstances, would it be just and would it serve a useful purpose to grant declaratory relief? In my judgment, it would, precisely because it would bring resolution and finality to this issue," he said.