Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
STEPHEN SMITH QC
Sitting as a Deputy Judge of the Chancery Division
Between:
Dennis Regan | Claimants |
- and - | |
Paul Properties DPF No 1 Ltd & Ors | Defendants |
Mr S Bickford-Smith (instructed by Child & Child) for the Claimant
Mr. A. Francis (instructed by Dawsons) for the Defendant
Hearing dates: 17th to 20th July 2006
Judgment
Stephen Smith QC (sitting as a deputy judge of the High Court)
In these proceedings the Claimant, Mr. Dennis Regan, claims injunctions and damages against the Defendants in the tort of nuisance, for allegedly having infringed his rights to light by constructing a mixed commercial and residential development across the road from his home in Brighton.
The proceedings before me have been a speedy trial of Mr. Regan's claim to injunctive relief, Mr. Regan's claim form having been issued just 4 months ago. The principal questions I have to determine are whether the Defendants have indeed committed an actionable nuisance, and if so, whether in the exercise of my discretion I should grant a mandatory injunction requiring the Defendants to pull down part of the new building (which is not yet complete). Any issue of damages which arises is to be resolved on a later occasion.
Mr. Regan was represented before me by Mr. Stephen Bickford-Smith, the Defendants by Mr. Andrew Francis. I am much indebted to both counsel for their considerable assistance. Over 140 years ago, Humphry W. Woolrych, in the preface to his book on the Laws of Lights, 2nd edition (1864), opined:
"It is scarcely possible to anticipate the complication belonging to an interest in Ancient Lights."
That sentiment reflects thoughts which passed through my mind from time to time during the course of the trial.
The relevant facts in the case were largely agreed. To the extent that they were not agreed, the facts which I set out in this judgment are as found by me.
Background
Mr. Regan's home is a maisonette on the first and second floors at 8 Zion Gardens, Brighton. Mr. Regan purchased a long lease of the maisonette in October 2002. He lives at the property with his partner, Ms Laycock, and his teenage daughter. Mr. Regan has two other younger children, who visit and occasionally stay overnight. Mr. Regan describes himself as a building contractor.
Although the address of the maisonette is Zion Gardens, what would be described as the front of the maisonette is actually on Queen's Road in Brighton. Queen's Road is a busy thoroughfare, running from the railway station towards the seafront. On the ground floor below the maisonette is a wine bar.
On the first floor, the maisonette comprises a living room, kitchen and shower room; on the second floor are two bedrooms, a study/bedroom and a bathroom; there is also a loft space which has access to the roof. Although Mr. Regan's claim as originally framed complained of infringements of his rights to light to both the first floor living room and to the second floor study/bedroom, all the argument at trial – and the expert evidence – centred on the effect on the light to the first floor living room only.
The living room is on the western side of Queen's Road. Almost directly opposite on the eastern side is a property known as 126-7 Queen's Road, and to the south of that 128 Queen's Road. The First Defendant is the freehold owner of 126-7, and the Second and Third Defendants are the freehold owners of 128.
The properties standing at 126-127 and 128 Queen's Road until March 2005 were three storey properties in what could not unfairly be described as a shabby condition. Sometime prior to March 2005 the Defendants had agreed to the joint development of the properties, and had successfully negotiated the necessary procedures to obtain planning permission to construct a five storey building on the combined site.
It was only when demolition of the building at 128 Queen's Road commenced in March 2005 that Mr. Regan became aware of the intention to develop that site. He made enquiries at the council planning office and to his surprise discovered that permission had been granted not only for a development at 128, but also for a development at 126-7. At that time Mr. Regan was under the erroneous belief that the two developments were entirely separate.
Mr. Regan was provided by the planners with a copy of a report entitled "Report on Daylight as a result of the Redevelopment of 126-127 Queen's Road Brighton" which had been prepared in connection with the Defendants' application for planning permission by Mr. Kaivin Wong, then of Malcolm Hollis, a firm of chartered surveyors and building surveying consultants, in October 2004.
Mr. Regan studied Mr. Wong's report and noted that Mr. Wong had not identified any effect of the proposed development on the daylight to his maisonette. This was indeed so, but the reason for it was not because Mr. Wong had at that stage concluded that the development would have no detrimental effect on the light received by any property on the opposite side of Queen's Road; according to Mr. Wong, he had not in fact been instructed to address rights to light of neighbouring properties generally, rather he was asked to address the more limited concerns which had been raised by the planners concerning the effect of the development on a property to the south east of the site.
Mr. Regan can be forgiven for thinking otherwise, however, because the first paragraph of Mr. Wong's report does not suggest any limitation on his approach. Mr. Regan's evidence was that, having regard to Mr. Wong's report, he did not at that time think that he had a right to light or that there was any action he could reasonably take.
It was not until 19th September 2005 that work commenced on 126-127 Queen's Road (which was not to be entirely demolished). It was then that Mr. Regan first understood that the developments at the two addresses were joint. Shortly thereafter Mr. Regan instructed his own surveyor, Mr. Michael Ney, of Schroeder Begg & Co, to advise him.
On 14th October 2005 Mr. Regan wrote directly to Mr. Paul Hatley of the First Defendant, with whom Mr. Regan was acquainted. In his letter Mr. Regan raised concerns about the development. One of those concerns was in connection with the grant of planning permission without Mr. Regan's knowledge. That occurrence is not a matter for me to consider, but I have been told that it is something which Mr. Regan is also pursuing. Another concern was the effect the development would have on Mr. Regan's right to light.
Mr. Regan's letter was forwarded to Mr. Wong, who had moved to Anstey Horne & Co since he produced his report in 2004. Mr. Wong advised Mr. Hatley by letter dated 27th October 2005 that although there would be a "measurable loss of light" to Mr. Regan's maisonette, he was "satisfied that there is no actionable injury". At the time he expressed that seemingly clear view, Mr. Wong had carried out only what may be described as a very elementary – almost back of the envelope – calculation; he had certainly not visited Mr. Regan's maisonette.
Mr. Hatley replied to Mr. Regan's letter on 3rd November 2005. Mr. Hatley stated that "detailed advice regarding rights of light" had been taken before embarking on the project, as requested by the Council. Mr. Hatley also informed Mr. Regan that a copy of Mr. Regan's letter had been passed to the developers' specialist rights of light surveyors, and that they had repeated their advice and confirmed that they considered "that there is no actionable injury as far as you are concerned". This latter information was of course true, but the former was potentially misleading to the extent that it suggested that Mr. Wong's instructions in 2004 had been more comprehensive than they actually were.
In the ensuing correspondence both Mr. Ney and Mr. Wong became involved. On 17th January Mr. Ney supplied Mr. Wong with a detailed drawing of the first floor layout at 8 Zion Gardens, showing what Mr. Ney believed would be the area where light would be lost in the sitting room. Mr. Ney's view was that whereas at the time of writing the room was 65% well-lit, after the completion of the development as proposed it would only be 42% well-lit. (As will be seen below, these figures proved to be substantially accurate.)
Mr. Wong replied to Mr. Ney on 17th February 2006. In his letter he set out his view thus:
"It is patently obvious that your client has experienced a measurable loss of daylight as my client's building is of greater massing than the previous building. However, it is my view that at best there has been no material effect on beneficial use of his living room and at worse, even if there is a technical actionable injury, it will be marginal … which to my mind is clearly a matter which can be adequately addressed by compensation if at all. It would therefore be entirely unreasonable for my client to delay its works."
Mr. Wong followed up this letter with a further letter to Mr. Ney dated 1st March 2006, in which he set out the results of his analysis of the impact of the proposed development on the light entering Mr. Regan's living-room. Mr. Wong's conclusion was:
"… your client may well experience a technical infringement of his right to light but I still remain firmly of the view that there will be no material impact on the beneficial use of his living room as confirmed in my recent inspection."
Mr. Wong went on to value Mr. Regan's loss at £3000 as a "fair and reasonable value", alternatively, at "an absolute maximum value" of £8000.
By early March 2006 the parties had reached an impasse. The development was proceeding apace and work had commenced on the fifth floor.
On 22nd March 2006 Mr. Regan issued his (Part 8) claim form seeking an injunction, and damages exceeding £150,000 but not exceeding £200,000. On the same day he made an application, ex parte on notice, for a prohibitory injunction against the Defendants. In the event the matter was disposed of by the Defendants giving undertakings to the Court; a similar exercise occurred on 31st March 2006.
In the meantime, on 27th March 2006 the Defendants made Mr. Regan an open offer of £15,000 in full and final settlement of his claims. The offer was not accepted: Mr. Regan has throughout steadfastly maintained that his prime concern is to have his right to light specifically enforced.
In consequence of the Defendants' undertakings, the fifth storey of the development remains unfinished, although the progress made on that storey to the date of the March undertakings was such that the interference with the light to Mr. Regan's living room was largely (if not totally) complete. Work is continuing on the remainder of the site, but it is fair to say that even the remainder of the site is still some way from completion.
The living room
Mr Regan's living room is, as described by Mr. Wong, "relatively generous in size", being approximately 5 metres deep and 4.5 metres wide. It has a total floor area of 22.5m2. The window facing 126/7 Queen's Road is a bay (sash) window in three parts. At the other end of the room (the western end) are two sets of doors. One doorway leads into the hallway, the other (a double doorway) leads into the kitchen. In approximately the middle of the northern wall is a fireplace.
The current arrangement as regards the furnishings in the room is as follows. Against the southern wall is a long sofa. In the bay window there is a small breakfast table with four chairs (occasionally replaced by a large armchair). In the centre of the room there is a long coffee table. To the right of the fireplace (ie nearest the bay window) is a desk and chair; to the left another armchair. The property is Victorian, hence the ceilings are higher than (eg) the ceilings which are to be found in the Defendants' development across the road.
The windows have secondary double-glazing, to dull the traffic and other noise generated in the busy street below. They also have louvered wooden blinds. These serve the twin purposes of maintaining some privacy for the room, and blocking out the sunlight. The windows do receive an amount of direct sunlight. I had the pleasure of visiting the property on what turned out to be the hottest July day on record to date, and at 10.30 am the direct sunlight into the bay window was understandably very bright.
Until the 1920s, a method commonly used to assess the adequacy of the light entering a window was not sophisticated; it involved measuring the angle between the window sill and the top of the proposed or infringing building. This is sometimes known as the "cones of light" approach. If the angle was 45 o or less, then prima facie there was no infringement; if more, then prima facie there was an infringement.
In the 1920s, Percy Waldram, an accomplished expert, devised a more sophisticated method of assessment. In those days the method required a lot of painstaking trigonometry; these days there are computer programs which relieve most of the pain.
The Waldram method measures light from the sky (not reflected light and not direct sunlight). The method is designed to eliminate variations in the amount of light from from time to time (caused, eg, by differences in the cloud cover or between the seasons). The point is put thus in the work co-authored by Mr. Bickford-Smith and Mr. Francis with Elizabeth de Burgh Sidley, Rights of Light, The Modern Law (2000), at para. 12.10:
"Sky brightness varies unpredictably in temperate climates. It depends on the height of the sun above the horizon and on the various cloud formations. The amount of light in a room lit by daylight is proportional to sky brightness. The intensity of light coming from a window varies with time unpredictably and over a wide range of conditions. A standard had to be set and the figure of 500 foot candles illumination was adopted by the National Physical Laboratory in 1928 as being the average condition of sky brightness found in towns in Great Britain over the greater part of winter days, over long periods in late autumn and early spring, over substantial but less lengthy periods in early autumn and late spring and on wet days in summer. It was felt that over these periods and, therefore, over a great part of the year, reasonable people would normally expect to have adequate light for ordinary purposes."
A little earlier, in "The Illuminating Engineer" in 1923, Mr. Waldram had opined (supposedly following extensive fieldwork undertaken by himself and his father):
"… for ordinary purposes, comparable with clerical work, the natural illumination at which average reasonable persons would consistently grumble was that which represented 1/250 (0.4%) of the outside illumination which would fall on a window sill from an unobstructed quartersphere of sky, of the same brightness as that of a patch of sky which illuminated the position under consideration. This grumble point is, of course, the same as 1/500 or 0.2% of the light which would fall from an unobstructed hemisphere of uniform sky onto a flat roof."
Not long thereafter, the Commission Internationale de L'Eclairage, which met at Cambridge, resolved a number of issues, including that less than 0.2% daylight (aka 1 foot candle, 1 lumen or 1 lux) should be regarded as inadequate for work involving visual discrimination, the assessment being made at tabletop height (which was to be taken to be 85 cm (2ft 9 in)).
Mr. Waldram's methods of measuring light devised around this time translate the three dimensional reality of light flowing through a window into a room at tabletop height, into a two dimensional diagram. By comparing the diagrams of the extent of adequate light (ie 0.2%) available in a room which are produced to represent the position before and after a proposed development, the effect of the development on the available light can be plotted over the floor area of a room on what is known as a "sky contour diagram". The area between the contours is the area in which adequate light has been (or will be) lost because of the development.
In this case I have been supplied with several sky contour diagrams prepared on different hypotheses.
Mr. Wong and Mr. Ney agreed just before the trial commenced that the 0.2% contour in the living room before the Defendants' development commenced covered between 65% and 67% of the floor area; and that after the development it covered between 42% and 45%.
If one takes mid-points between these sets of figures of 66% and 43.5% respectively, and applies them to a floor area of 22m2, the resulting figures show that prior to the Defendants' development the adequately lit area of Mr. Regan's living room comprised 14.52m2, and after the development it comprises 9.57m2.
The relatively small difference in the experts' respective percentages does not materially affect the shape of the area formerly adequately lit which has been lost from Mr. Regan's living room. This is shown on the relevant sky contour diagrams as a balloon stretching from a point about one third of the way along the southern wall and, on its eastern edge, travelling along a shallow concave line to the eastern edge of the fireplace on the northern wall and, on its western edge, travelling along a deeper concave line to the western edge of the fireplace. In rough terms, the balloon covers the greater part of the middle of the room.
In short, prior to the Defendants' development a little over one third of Mr. Regan's living room was inadequately lit according to the standards developed early in the last century, to which I have referred. After the development the area of the living room which is adequately lit according to those standards has been reduced by about one third, so that now less than half of the room is adequately lit. Unsurprisingly, the area which remains adequately lit is in a band adjacent to the window.
Finally on this issue, I should make clear that whilst the available light has been assessed as having deteriorated to less than 0.2% daylight in the 5.1m2 area, what the evidence before me does not address is the extent of that deterioration at any point in that area, at any particular time of the year, or even at any particular time of day.
The Defendants' development
The development comprises 16 units. Two of these – on the ground and part of the first floor – are commercial (I understand retail) units. The remainder are residential units. None is yet complete.
Mr. Regan's proceedings affect only 1 of the proposed units, viz. unit 16, a penthouse flat. I understand that that unit as proposed is the prime residential unit in the development. Whatever I decide it will have a small roof terrace on the east side and a larger roof terrace on the west side; the sea will be visible in the near distance from both roof terraces.
As proposed, unit 16 will also have three bedrooms, a kitchen, a lounge and three bathrooms (two en-suite). Access will be gained by stairway or by a lift. Unit 16 was sold in December last year, subject to contract, for £475,000, without ever having been marketed (none of the units has yet been marketed). The price has subsequently reduced to £450,000 because the intending purchasers wish to install their own kitchen and bathroom fittings.
Mr. Regan's principal claim is to a mandatory injunction which takes the skyline of unit 16 back to a point where his living room receives 53% of adequate light, assessed as described above. That would require the removal of all of the proposed lounge, one bedroom and one en-suite bathroom. It would also leave unit 16 with an unusually large roof terrace on the western side. I was told that the value of unit 16 in that state would be approximately £300,000.
Mr. Regan has a fallback position, viz. that so much of the skyline of unit 16 is removed as would allow 48% of his living room to receive adequate light. That would require most of the proposed third bedroom and en suite bathroom to be removed, and about 2/5 of the proposed lounge. Again, a consequence of the removal would be the creation of a considerably larger roof terrace than planned. I was told that the value of unit 16 in that state would be approximately £325,000-£350,000.
Notwithstanding these potential reductions in the selling price of unit 16, in a letter dated 13th April 2006 the Defendants' solicitors informed Mr. Regan that although it was difficult to estimate precisely how much profit the Defendants would lose if the design of unit 16 was cut back to enable Mr. Regan's living room to receive at least 50% of adequate daylight, a redesign of unit 16 and the neighbouring flat could limit the loss to no more than £40,000.
I was also told that the cost of removing the already completed work to return it to what for convenience I shall call the 53% state would be in the region of £35,000; whereas the cost to return to the 48% state would be approximately £12,000. It would seem to follow, however, that there would be savings in the costs of building unit 16 if it were to be confined to the 53% or 48% states. Indeed I was provided with figures which appeared to show that the additional cost of building a 3 bedroom flat at unit 16 rather than a 2 bedroom flat was some £56,000.
Valuations
Each side instructed expert valuers in an effort to assess the impact of the infringement on the value of Mr. Regan's maisonette. In the event the valuers were able to reach an agreed position and did not attend Court. That agreed position is that the difference in value between the maisonette with adequate available light to 53% of its floor area, and the maisonette with adequate available light to 42-45%, is between £5,000 and £5,500.
The valuers also agreed that the value of the maisonette post-development is £220,000; Mr. Regan's valuer is of the view that the value of the maisonette pre-development was £231,000.
Is there an actionable interference?
It is certainly not the law that any interference with the light entering a building will constitute a nuisance, even if, as here, the building undoubtedly has a right to ancient lights. An easement of light confers on the dominant tenement a right to a minimum level of light, but it does not protect all the light which may have been previously available. Thus it is entirely possible for a developer to construct a development which has the effect of reducing the amount of light which has been received by neighbouring buildings for very many years, without committing the tort of nuisance.
In the Defendants' Defence, the allegation of nuisance in Mr. Regan's Particulars of Claim was not admitted. In contrast, in Mr. Francis' skeleton argument filed before the trial commenced, the injury suffered by Mr. Regan was "conceded as actionable within the generally held principles in rights of light claims".
At the commencement of the trial, however, Mr. Francis applied to withdraw his concession, because the Defendants now wished to deny that there had been any actionable injury to Mr. Regan. Mr. Bickford-Smith did not object to the withdrawal of the concession, and I therefore allowed it to be withdrawn. A new skeleton was then filed by Mr. Francis, the material part of which now reads "not conceded as actionable within the generally held principles in rights of light claims".
In fact, that skeleton argument does not accurately set out the position now adopted by the Defendants. Their position is that they do not challenge the way in which the adequacy of light to a room has been assessed for the last 80 years or so, as described above; they do, however, challenge the convention that appears to have grown up to the effect that, once it has been shown that an interference has reduced the available adequate light to a room to an area measuring less than 50% of that room's total floor area, the interference will constitute a nuisance in law (the so-called 50:50 rule). To the extent that the 50:50 rule is a generally applicable principle, it is indeed challenged by the Defendants.
The starting-point in considering whether an interference with light constitutes a nuisance is the decision of the House of Lords in Colls v. Home and Colonial Stores Ltd [1904] AC 179. I take the statement of principle from the speech of Lord Lindley at p. 208 (descriptions to similar effect are at p.187 (Lord Macnaghten) and at p.204 (Lord Davey)):
"… generally speaking an owner of ancient lights is entitled to sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment of his house as a dwelling-house, if it is a dwelling-house, or for the beneficial use and occupation of the house if it is a warehouse, a shop, or other place of business. The expressions "the ordinary notions of mankind", "comfortable use and enjoyment", and "beneficial use and occupation" introduce elements of uncertainty; but similar uncertainty has always existed and exists still in all cases of nuisance, and in this country an obstruction of light has commonly been regarded as a nuisance, although the right to light has been regarded as a peculiar kind of easement."
Price v. Hilditch [1930] 1 Ch 500 is the first case to which I have been referred where a plan which may have been a sky contour diagram was used. In that case the erection of a high boundary wall was established to be a nuisance. The case does appear to have been a somewhat extreme one, as Maugham J recorded at p. 505:
"A ground plan put in by one of the expert witnesses for the plaintiff shows the amount of floor space to which the light of the sky has access, calculated from the point of view of a table 2 feet 8 inches high, and the fact now is that there is hardly any part of the floor in the scullery from which the sky can be seen, whereas, before the erection of the wall, the sky could be seen from practically the whole of that small room."
Sky contour diagrams were undoubtedly used in Fishenden v. Higgs and Hill Limited 153 (1935) L.T 128. Indeed the diligent researches of Mr. Francis have unearthed them as printed in Easements of Light (A synopsis of modern practice and a brief explanation of simplified methods of measuring daylight and assessing compensation), by John Swarbrick (1938). Mr. Swarbrick had been an expert witness for the plaintiff in the Fishenden case.
At first instance in Fishenden Crossman J referred (at p.131) to the "so-called grumble line" and the "generally accepted view":
"that something like 50 per cent of an ordinary shaped room ought to be adequately lighted within this so-called grumble line."
The Defendants in that case, whilst accepting that the proposed development would bring the plaintiff "materially beyond the grumble line", argued "with great force" that no actionable nuisance was caused because the plaintiff would not be worse off than many other persons in London. That argument, which has many similarities with the argument which Mr. Francis has addressed to me, was rejected by Crossman J.
In the Court of Appeal, the appeal against the finding of nuisance was dismissed, the Court of Appeal ruling that there was sufficient material before the learned judge to justify his conclusion that a nuisance would be committed. In their judgments, Lord Hanworth MR and Romer LJ said nothing disapproving of daylight plans, grumble lines or the 50-50 rule. Maugham LJ, whilst finding the daylight plans "exceedingly useful" said that "no hard and fast mathematical standards can be applied" (p.143) and continued at p. 144:
"I should add one thing more with regard to the daylight plans, and that is that they may, I think, often be exceedingly misleading if the so-called 50-50 rule with regard to the amount of light which the rooms should enjoy is applied to a room which has any unusual depth in it, or applied to a room where the windows are in any sense unusual, because the light falling at table height from the window at a particular part of the room depends directly upon the depth of the room and the height of the window, and obviously those things have got to be carefully considered in applying the rule."
I should also refer to a passage in the evidence which appears to have impressed Romer LJ. The plaintiff said that "he now – that is to say, in the last few weeks – has to use artificial light to eat his lunch, though formerly he could do so by daylight". Romer LJ observed (at p.140):
"In whatever neighbourhood a dwelling-house is situated, a man is entitled to have his ancient lights protected to this extent, that he may be able to go on having his lunch without the use of electric light in places where obviously he had so lunched."
In Ough v. King [1967] 1 WLR 1547, the defendant relied on Waldram diagrams to demonstrate that the extensions he had constructed did not reduce the amount of adequate light remaining available below the 50% threshold. The relevant room had a floor area of 156.5ft2; before the construction 100.25ft2 had been adequately lit; after the construction 80.25ft2 remained adequately lit. In other words, the adequately lit area had declined from 64.05% to 51.27%.
The county court judge nonetheless found that an actionable infringement had occurred. The Court of Appeal dismissed the defendant's appeal. Lord Denning MR said this (at p.1553):
"… I think the judge was entitled to have regard to the higher standards expected for comfort as the years go by. … In these days I would not myself be prepared to regard the 50:50 rule of Mr. Waldram as a universal rule. In some cases a higher standard may reasonably be required."
Danckwerts LJ also referred to the "more demanding standards at the present time in the modern situation", and Diplock LJ referred to the 50:50 rule as "a convenient rule of thumb" in the 1920s "and perhaps later".
Ough v. King is plainly authority for the proposition that a development which whilst interfering with the available light leaves the dominant property with enough adequate light to satisfy the 50:50 condition may nonetheless constitute a nuisance in modern conditions. An ordinary case where the reduction is from 66% to below 50% would appear to be a fortiori.
In Carr-Saunders v. Dick McNeil Associates [1986] 2 All ER 888, Millett J was shown daylight contour plans by both parties' expert witnesses, and he referred (at p.891e) to:
"the conventional fifty-fifty rule by which a room may be regarded as adequately lit for all ordinary purposes if 50% or more of its area receives not less than one lumen of light at table level."
At p.893b, however, he said this when dismissing an argument that recently erected internal walls should be disregarded when determining whether there had been an actionable infringement:
"I reject this approach. It applies the fifty-fifty rule rigidly as if it were a rule of law, and not (as it is) as merely a useful guide to be adopted or discarded according to the circumstances. The fifty-fifty rule is not, in my judgment, to be applied without any regard to the shape and size of the room or the disposition of the light within the room to which it is applied."
Deakins v. Hookings [1994] 1 EGLR 190 is a decision in the county court. After referring to Ough v. King, Judge Cooke said (at p.192) that he thought that the Court of Appeal decision "really means not so much that one disregards the 50/50 rule, but that it is a bare minimum." He then said:
"It seems to me that having regard to the authorities I ought to approach the problem on these bases:
In a room that is already ill-lit every bit of light is precious.
Save in an extreme case it would be difficult to say that once a living room (contrast a store) fell below 50/50 that the light left was adequate.
In considering whether a room where more than 50% remained well-lit regard should be had to the use to be made of the remainder and how bad, vis a vis that use, the remaining light was.
The test is not merely a statistical one: test (ii) provides a pretty irreductible minimum."
In Deakins the well-lit area in the living room in that case represented 51% of the floor area prior to the development; after the development the well-lit area had reduced to 41%. Judge Cooke found that there had been an actionable interference with the plaintiff's right to light.
The cases of Price v. Hilditch, Fishenden, Ough v. King and Deakins v. Hookings, in each of which nuisance was established, are all cases where the complaint was of an infringement of a right to light to residential premises.
In the recent commercial premises case of Midtown Ltd v. City of London Real Property Co Ltd [2005] EWHC 33, [2005] 14 EG 130, counsel for the defendant submitted that the time had come "to dispense with rigid and unhelpful rules that had been devised in the past, such as the 50:50 rule" (para. 59). Midtown was a case where the sky contour diagrams projected that the reductions in available light as a result of the development would be very large. In general, the percentages would be reduced to single figures from figures prior to development which were in excess of 50% (para. 52). The principal argument of counsel for the defendant was that since the offices of the claimant (a firm of solicitors) had always been, and would continue to be, lit by artificial light during all working hours, the projected interferences would not be actionable. Peter Smith J rejected the defendants' arguments and concluded that a nuisance had indeed been established.
Mr. Francis invited me to rule that Judge Cooke erred when stating that an irreducible minimum of 50% of a room had to remain well lit by ordinary standards, and that if it did not a nuisance is established. I do not think that Judge Cooke intended to lay down a rigid rule to that effect. His formulation in terms admits of an exception "in an extreme case", and even in a case which is not extreme, asserts that it would be "difficult" (but not impossible) to say that less than 50% was adequate. In any event, as Millett J made clear in the Carr-Saunders case, the rule is not a rule of law. It is a very useful guide which will apply to the majority of cases concerning infringements of rights to light, especially where the dominant tenement is a dwelling house and the room in question is a living-room, but it need not be followed in extraordinary circumstances.
The alternative approach advocated by Mr. Francis, with the support of Mr. Wong, would introduce a measure of further uncertainty into an area where greater certainty would be advantageous. Reference was made to the "locality" of the premises and to the fact that Mr. Regan's property would continue to be "marketable" notwithstanding the development. In that vein Mr. Wong said that when he inspected Mr. Regan's premises (in mid-February, in conditions only marginally better than those experienced "under the standard overcast sky that is used for the rights of light Waldram calculations"), the room was not gloomy and was "certainly much better than many of the rooms I have assessed and measured with similar levels of daylight distribution".
This theme was picked up by Mr. Lahaise, the only witness of fact called by the Defendants, who was keen to show me an (admittedly unfinished) first floor unit in the development. Suffice it to say that it appeared to me that Mr. Waldram would indeed have been sorely tested to produce a diagram showing skylight at table level in any significant part of the living room of that unit. But, so Mr. Lahaise informed me, his agents had advised him that that unit was "marketable".
The Defendants' arguments do appear to be the same arguments as those which failed to find favour in Fishenden, and I see no reason why I should find them more persuasive in this case (even if it were open to me to do so, which I do not think it is). In any event they appear to me to be misconceived. The question is not whether other people are prepared to live locally in conditions with significantly less available daylight than the development will leave in Mr. Regan's living room. As Mr. Bickford-Smith pointed out, the lack of adequate daylight is something which a purchaser may very well take into consideration when deciding how much to pay for a property. The question is whether a person who purchased his property with the benefit of more than adequate available daylight at the time, must suffer a reduction to a level which, by "the conventional method of assessment adopted by fellow consultants" (per Mr. Wong), is inadequate.
The infringement in this case is to the light entering a living room of regular shape and size. Prior to the development the room enjoyed adequate light to 65 or 67% of its floor area, in other words, significantly more than the conventional minimum. After the development it enjoys adequate light to an area of only either 42% or 45%, which, in my judgment, in either case, is significantly less than the conventional minimum. On a statistical basis, therefore, it is plain that an actionable nuisance has been committed. The facts are more egregious than the facts of Ough v. King, where the Court of Appeal had little hesitation in upholding the finding of infringement.
I do not, however, reach the conclusion that an actionable nuisance has been established on simply a statistical analysis. I also have regard to the fact that the area of Mr. Regan's living room which has suffered the loss of adequate light is right in the centre. In his evidence, Mr. Regan said that activities which he and the other occupants like to conduct in the living room include "painting, modelling, dressmaking, writing and the like". These would inevitably also include reading. The effect of the development is to force the family, on the typical days for which the 0.2% test was established, either to use artificial light, or to move into the last third of the room, ie into or close to the bay window. But that would then put the participants in full view of the occupants of the flats in the new development (and during working hours, the offices next door). The development's invasion of the family's privacy may not be actionable per se, but it is nonetheless real in the bay window. In this connection I bear in mind the views of Romer LJ about the effect on the lunching habits of the plaintiff in the Fishenden case.
For all these reasons I have little doubt that Mr. Regan has satisfied the Collstest, and established that the interference with his right to light renders the enjoyment of his living room significantly less comfortable and beneficial than it previously was.
Should an injunction be granted?
Until 1858, a right to light could be enforced either by the grant of an injunction in a chancery court, or by an award of damages in a common law court. In 1858, the Chancery Amendment Act (usually known as Lord Cairns' Act) was enacted. S. 2 of that Act provided that:
"… in all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction … against the commission or continuance of any wrongful act … it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction …"
The jurisdiction is now to be found in s. 50 of the Supreme Court Act 1981.
It is now well established that the damages which may be awarded by a court in lieu of the grant of an injunction are not to be assessed at a ransom price, but are to represent the price which might reasonably be demanded by a claimant for surrendering his rights, see Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd. [1974] 1 WLR 798 and Jaggard v. Sawyer [1995] 1 WLR 269.
The jurisdiction to award damages in lieu of an injunction was considered by the Court of Appeal in Shelfer v. City of London Electric Lighting Company [1895] 1 Ch 287. Shelfer was a case of nuisance by noise and vibration which was causing structural injury to a public house. The Judge awarded damages in lieu, but the Court of Appeal allowed the plaintiffs' appeal and granted the injunction sought.
In his judgment (at pp.315-6), Lindley LJ protested against the notion of compulsory purchase by a wrongdoer:
"… ever since Lord Cairns' Act was passed the Court of Chancery has repudiated the notion that the Legislature intended to turn that Court into a tribunal for legalizing wrongful acts; or in other words, the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict. … Expropriation, even for a money consideration, is only justifiable when Parliament has sanctioned it."
And he continued (at pp.316-7):
"Without denying the jurisdiction to award damages instead of an injunction, even in cases of continuing actionable nuisances, such jurisdiction ought not to be exercised in such cases except under very exceptional circumstances. I will not attempt to specify them, or to lay down rules for the exercise of judicial discretion. It is sufficient to refer, by way of example, to trivial and occasional nuisances: cases in which a plaintiff has shown that he only wants money; vexatious and oppressive cases; and cases where the plaintiff has so conducted himself as to render it unjust to give him more than pecuniary relief. In all such cases as these, and in all others where an action for damages is really an adequate remedy – as where the acts complained of are already finished – an injunction can be properly refused."
In his judgment, A.L.Smith LJ put the matter thus (at p.322):
"Many judges have stated, and I emphatically agree with them, that a person by committing a wrongful act … is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour's rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be.
In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff's legal right has been invaded, and he is prima facie entitled to an injunction.
There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution for an injunction as authorized by this section …
In my opinion, it may be stated as a good working rule that –
If the injury to the plaintiff's legal rights is small,
And is one which is capable of being estimated in money,
And is one which can be adequately compensated by a small money payment,
And the case is one in which it would be oppressive to the defendant to grant an injunction,
Then damages in substitution may be given."
Colls was a case where the decision of the Judge, reinstated by the House of Lords, was that there had been no actionable interference with the plaintiff's right to light. In his speech, Lord Macnaughten did not refer to the decision in Shelfer (contrast Lord Lindley at p. 212), but he did appear to have the observations made in that case in mind, when he said this (at p. 193):
"In some cases, of course, an injunction is necessary – if, for instance, the injury cannot fairly be compensated by money – if the defendant has acted in a high-handed manner – if he has endeavoured to steal a march upon the plaintiff or to evade the jurisdiction of the Court. In all these cases an injunction is necessary, in order to do justice to the plaintiff and as a warning to others. But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the Court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament. On the other hand, the Court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money."
Some 7 months after the decision in Colls, in Kine v. Jolly [1905] 1 Ch 480, the Court of Appeal refused an injunction in respect of an infringement of the right to light to a dwelling house, restricting the plaintiff to a remedy in damages. At p.504, Cozens-Hardy LJ observed:
"I think it is impossible to doubt that the tendency of the speeches in the House of Lords in Colls v. Home Electric Stores Ltd, is to go a little further than was done in Shelfer v. City of London Electric Lighting Co., and to indicate that as a general rule the Court ought to be less free in granting mandatory injunctions than it was in years gone by."
30 years later, in Fishenden, Lord Hanworth referred to the passages in the judgments in Shelfer, Colls and Kine v. Jolly and said (at p.139):
"It seems to me, therefore, that these rules in the Shelfer case must now be taken with the concomitant passages to which I have referred in the later cases, in Colls and in Kine v. Jolly, and that we ought to incline against an injunction if possible."
Romer LJ said that it by no means follows that an injunction should be granted in all cases in which the four conditions laid down by A.L.Smith LJ in his decision in the Shelfer case were not met (p.141). Maugham LJ thought that the "good working rule" of A.L.Smith LJ was an obiter dictum and that the case of an interference with an easement of light differs enormously from a case of continuous injury by noise and vibration such as was the case in Shelfer (p.144). At pp. 144-5, Maugham LJ continued:
"The injury caused by the obstruction of light is of the nature of a temporary nuisance during certain hours of the day. It does not follow from these considerations that the injury does not justify any relief in such a case as this. But the injury may be of a very small character… Accordingly, as I think, the working rule laid down by A. L.Smith LJ is not a universal or even a sound rule in all cases of injury to light, and I would observe … that Lindley LJ suggested a different rule, which I, for my part, would be perfectly willing to accept."
In the result, the plaintiff in Fishenden was left to a remedy in damages, the Court of Appeal overturning the decision of Crossman J to grant an injunction. The effect of the development in that case was more disadvantageous to the plaintiff in that case than the effect of the Defendants' development is to Mr. Regan: in Fishenden the daylight contour diagrams for the various rooms in question showed large percentage reductions in rooms which, for the most part, were inadequately lit before the development, see the judgment of Crossman J at p.130.
More recent rights to light cases have, without reference to these criticisms, adopted the criteria of A. L.Smith LJ in Shelfer but counselled that they are "not to be construed as if they were a statutory provision, but they are, undoubtedly, a useful working test" (per Fox LJ in Pugh v. Howells (1984) 48 P & CR 298). See too Deakins at p.195, and (vis a vis injunctions generally) Jaggard v. Sawyer (per Sir Thomas Bingham MR at pp. 277-9 and per Millett LJ at p.287-9), and Daniells v. Mendonca (1999) 78 P&CR 401.
In Midtown, Peter Smith J, after referring to the speech of Lord Macnaughten in Colls and to the criticisms in the judgments in Fishenden, said that the judgments in Jaggard v. Sawyer "establish a willingness on the part of the courts to depart from the strict requirements of the four requirements set out in Shelfer in an appropriate case" (para. 73). Peter Smith J also considered (at para. 76) as a factor in the exercise of his discretion against the grant of an injunction in that case that:
"… it would be oppressive to the defendant to be prevented from pursuing a worthwhile and beneficial development for that area."
My conclusion from a consideration of these authorities is that, whatever may be the position in cases of other wrongful conduct, in the case of an infringement of a right to light it cannot be said that refusing an injunction and leaving the claimant with an award of damages in lieu is an exceptional course. Indeed, it seems to me, having regard in particular to the guidance given in the decisions of the Court of Appeal in the cases of Kine v. Jolly and Fishenden, that the onus is plainly on a claimant to persuade the court that he should not be left to a remedy in damages.
I therefore reject Mr. Bickford-Smith's submission that once it is established that Mr. Regan's rights have been infringed "the default position is that the court should grant an injunction to protect them".
The only cases cited to me in which an injunction was granted to restrain an infringement of a right to light are Pugh v. Howells and Deakins v. Hookings. An injunction was refused in Kine v. Jolly, Slack v. Leeds Industrial Co-operative Society [1924] 2 Ch 475, Price v. Hilditch, Fishenden and Midtown.
Pugh v. Howells was a case where the Defendants had hurried up the construction of the two storey extension to their home over a bank holiday weekend, not only after concern had been expressed by the plaintiffs' solicitors, but in defiance of advice from their own surveyor that the proposed extension would adversely affect the daylight entering the plaintiffs' kitchen. As Judge Cooke commented in his judgment in Deakins (at p. 195D),"one is left with a distinct flavour that the Court of Appeal thought the defendants' conduct more than a little disgraceful".
In Deakins, Judge Cooke considered the guidelines of A.L.Smith LJ in Shelfer, but found that they were not met because the damage suffered could not be dismissed as small. He also said that "damages are not really an adequate remedy for that sort of loss of amenity". I do not find the approach of Judge Cooke to these questions easy to reconcile with the approach taken in Price v. Hilditch and by the Court of Appeal in Fishenden. The latter case was not cited to Judge Cooke; the former is referred to in his judgment, but only on the question of whether there was an actionable interference.
Mr. Bickford-Smith submitted that there is in this case "abundant evidence of the Defendants stealing a march on the Claimant and acting in a less than frank manner". I reject that submission.
I agree that there are two occasions when things were said on behalf of the Defendants which were or may have been misleading. One of those occasions is in Mr. Hatley's letter dated 27th October 2005, to which I have already referred. The other is in Mr. Wong's witness statement sworn in connection with Mr. Regan's (successful) application for interim protection, where he said that the matter of Mr. Regan's rights of light "was first brought to my attention on 15th November 2005". That was plainly incorrect, and Mr. Wong's attempt in the witness box to persuade me otherwise did not succeed. Neither of these instances, however, appears to me to have caused Mr. Regan any prejudice.
Mr. Bickford-Smith complains about the fact that the Defendants proceeded to "sell" unit 16 in December, notwithstanding Mr. Regan's complaints. But that "sale" was subject to contract; in law it was not a binding sale at all. Mr. Lahaise confirmed that the intending purchasers have not moved their interest forward to an exchange of contracts because they are awaiting the outcome of these proceedings.
It is certainly true that the Defendants do not appear to have applied any brake on the construction of the development, even as regards unit 16, notwithstanding Mr. Regan's claims, until after Mr. Regan applied to the Court for an injunction. That may well be a matter which will be raised on the argument as regards the costs of these proceedings, but should it have a material bearing on the exercise of my discretion whether to grant an injunction in this case? I do not think so.
The Defendants' evidence, which I accept, is that they were taken aback when Mr. Regan first made his complaint. Mr. Lahaise, who has very extensive experience of property development, had never previously encountered a claim to ancient lights. As soon as the complaint was made, it was referred to Mr. Wong, an acknowledged expert in the field who had already advised the Defendants on similar issues raised by the planners. Mr. Wong advised that there had been no actionable infringement, and he maintained that advice until 1st March 2006. Even then, Mr. Wong remained firmly of the view that the infringement was so limited that no injunction would be granted. I do not consider the Defendants' conduct – influenced as it undoubtedly was by the clear advice of their chosen surveyor - to have been oppressive or high-handed.
Turning now to the guidelines of A.L. Smith LJ in Shelfer, my view is as follows:
Is the injury to the plaintiff's legal rights small? Yes it is. Although on the conventional method of assessment one third of the previously available adequate light has been lost, one third of the room remains well lit. The room is certainly not rendered uninhabitable. The activities which Mr. Regan says the occupants like to engage in which will be affected by the infringement will still be capable of being engaged in in the room under daylight conditions, albeit that at times of year when the daylight is weaker they will be restricted to a smaller area. The effect of the infringement on the market price of the maisonette is agreed to be a maximum of £5,500, in other words, less than 2.5% of its pre-development value according to Mr. Regan's expert valuer.
Is the injury one which is capable of being estimated in money? Yes it is. I see no difference between this case and the cases of Price v. Hilditch and Fishenden in this respect.
Is the case one which can be adequately compensated by a small money payment?Yes it is. Size is of course relative. I have not yet been asked to assess damages. Whilst I believe it likely that the amount of damages to which Mr. Regan is entitled will be significantly in excess of Mr. Wong's maximum figure of £8,000, Mr. Francis has pointed out that the award of £1,873 2s 0d ultimately made in the Fishendencase (see Mr. Swarbrick's book at p. 58) may be thought to be the equivalent of several tens of £1000s these days.
Is the case one in which it would be oppressive to the defendant to grant an injunction? Yes it is. Whether one is considering the proposed 53% cutback or the proposed 48% cutback, the effect on the internal floor area of unit 16 would be very substantial, as would be the effect on the likely selling price of that unit; and significant further expense would be incurred, especially as regards the 53% cutback. To require either exercise would in my view be disproportionate to the amount of harm caused to Mr. Regan, especially having regard to the prospect of an award of damages by way of compensation in his favour. There may also be planning and/or building regulations difficulties raised by any modified plans, especially as regards the 53% cutback.
For all these reasons, in my judgment the right course in this case is to award Mr. Regan damages in substitution for an injunction.