Right of light — Erection of building extension — Whether interference with right of light — Whether appropriate to grant mandatory injunction — Basis of damages if mandatory injunction wrongly ordered
The plaintiff
had lived at 2 Ashbourne Terrace, London SW19, part of a terrace of cottages,
for 40 years. At its rear the property
had a small courtyard. Windows of the
property facing the courtyard had acquired easements of light. The defendant owned the adjoining property, 3
Gladstone Road, and in 1986, after the grant of planning permission, had
constructed a rear extension which affected light to the windows to the
plaintiff’s property. In August 1986 the
plaintiff commenced proceedings alleging interference with her right to light
to the living room and kitchen.
living room, but not to the kitchen of the plaintiff’s property. Notwithstanding the failure to obtain an
interlocutory injunction, there had been protestations on behalf of the
plaintiff at an early stage and a mandatory injunction would be granted, the
plaintiff’s loss being sufficiently serious to justify the inconvenience and
expense of the necessary work to remove the interference to light. Should the case go further, the judge
assessed the damages he would have awarded in the alternative to an injunction
in the sum of £4,500 being 15% of the benefit of the development to the
defendant.
The following
cases are referred to in this report.
Allen v Greenwood [1980] Ch 119; [1979] 2 WLR 187; [1979] 1 All ER
819, CA
Bracewell
v Appleby [1975] Ch 408; [1975] 2 WLR 282;
[1975] 1 All ER 993; [1976] EGD 190; (1974) 237 EG 731, [1976] 1 EGLR 119
Carr-Saunders
v Dick McNeil Associates Ltd [1986] 1 WLR
922; [1986] 2 All ER 888; (1986) 53 P&CR 14; [1986] 2 EGLR 181; 279 EG 1359
Colls v Home & Colonial Stores Ltd [1904] AC 179, HL
Ough v King [1967] 1 WLR 1547; [1967] 3 All ER 859; (1967) 19
P&CR 40; [1967] EGD 692; 204 EG 251, CA
Price v Hilditch [1930] 1 Ch 500
Pugh v Howells (1984) 48 P&CR 298, CA
Shelfer v City of London Electric Lighting Co Ltd [1895] 1 ChD 287;
[1891-4] All ER Rep 838, CA
Whitwham v Westminster Brymbo Coal & Coke Co [1896] 2 Ch 538
Wrotham
Park Estate Co Ltd v Parkside Homes Ltd [1974]
1 WLR 798; [1974] 2 All ER 321; (1973) 27 P&CR 296
This was the
hearing of a claim by the plaintiff, Miss Lillian Ellen Winifred Deakins, for
an injunction or alternatively damages for wrongful interference with a right
of light by the defendant, Diane Hookings.
Stephen
Bickford-Smith (instructed by Evill & Coleman) appeared for the plaintiff;
Phillip Reed (instructed by Partridge & Wilson, of Norwich) represented the
defendant.
Giving
judgment, JUDGE ROGER COOKE said: This is a right to light case. The plaintiff, Miss Deakins, has lived at 2
Ashbourne Terrace, London SW19, for nearly 40 years. In 1955 she and her mother and sister bought
the property as joint trustees. Mother
and sister are now deceased and she is the sole proprietor.
Ashbourne
Terrace is, as its name suggests, a residential row of terraced cottages. Its appearance suggests construction well
before 1900. Ashbourne Terrace runs into
Gladstone Road. Immediately adjacent to
no 2 is the corner property, which has frontages on to both Ashbourne Terrace
and Gladstone Road and consists of 3 Gladstone Road. At all material times the facades on both
sides of the corner consisted of projecting shop fronts. Like many 19th-century properties in London
the scheme of construction was that each pair of terraced houses had projecting
rearwards from their point of junction a wing (referred to as the back
addition), half of which belonged to each of the pair. So the ground plan of each cottage is an L
shape having a common wall with the reverse L shape next door. There are windows on the side face of the
back addition and, in the case of the present property, there would once have
been a window at ground-floor level, on the rear face, but it has now been
replaced by a glass door, which leads into a single-storey addition, which has
a window to the rear. The part of the
rear wall of the property not comprised in the back addition has a window to
the rear.
So the general
plan is that there is a narrow courtyard to the rear of each property with
windows facing into it both from the rear of the property and the back
addition. The remaining side of the
courtyard in all properties but this are formed by a fence fencing off next
doors’ courtyard.
This property
is different to its neighbour’s because the courtyard abutted directly not on
to any courtyard at the back of 3 Gladstone Road (for there was none), but with
the blank wall of the narrow (and different) back addition of 3 Gladstone Road
lying almost immediately behind the fence with only a foot or two’s space in
between. So there was only about a 6 ft
width between the two properties. At the
rear of this back addition was a single-storey wooden garage, which projects
forward of the building line towards Gladstone Road. The Gladstone Road facade of the back
addition had ordinary windows giving on to Gladstone Road and simply matched
the remainder of the Gladstone Road facade of no 3. Apart from the garage projection, which was
clearly later, the back addition of no 3 seems from surviving photos to have
been built as one with no 3.
The back
addition of no 3 had two features of particular relevance to this case: first,
the garage, as I have said was single-storey only. Second, the roof was a single slope of
30° with the high side at the road
facade and the low side facing no 2.
Subject to
whatever limitations on light were caused by the original back addition of no 3
as described, the windows of no 2 had clearly stood and enjoyed the use of
light for many years. Despite
indications to the contrary on the pleadings, it was treated as common ground
before me that the windows facing on to the courtyard of no 2 and more
especially the ground-floor windows had acquired an easement of light by
prescription and were ancient lights.
Of these windows
the window facing the courtyard accommodated the kitchen and the window on the
rear wall of the main building accommodated the living room.
So the matter
stood in 1985. No 3 had had a chequered
history. It had latterly been a health
food shop, ‘Nature’s Corner’. But this
had closed and the premises had been bought for use as a betting shop, a
licence had been refused and the betting shop people decided to dispose of what
by now was a derelict property. Ms
Hookings, now Mrs Van den Berghe, bought it.
Her intentions were to use the downstairs as a hairdressers’ salon and
to construct a flat upstairs. Her plans
involved the partial or total demolition of the back addition and the garage.
In summary
what she wished to do was:
(a) To extend at ground level the entire
ground-floor facade to line up with the shop-window projection.
(b) At first-floor level the ground-floor facade
in the rear section would be in line with the ground floor, but the part nearer
the shop was set back so as to form a small open balcony.
(c) The new building would extend rearwards to
the end of where the garage had stood.
(d) On the no 2 side the building line would be
to where the rear of the garage had been, ie virtually to the boundary fence a
matter of 10 ins to 1 ft for the whole of its length thus coming a foot or two
closer to no 2 than had the original back addition.
(e) That wall would be one single vertical wall
up to eaves height and the roof would be flat.
Thus, on the
proposals the relevant changes as regards no 2 would be:
(i) the back addition was closer to no 2 than its
predecessor had been;
(ii) it now went up to eaves height on the near
side instead of there being a slope as formerly;
(iii) instead of the facade in the garage area
being only just over 6 ins in height as formerly it was now of the same height
as the rest of the back addition.
So there was
something substantially different and it was quite reasonable for anyone living
in no 2 to suppose that if built as designed it would adversely affect the
already rather precarious supply of light to the rear ground-floor windows.
On May 21 1985
the defendant applied for planning permission.
In July the local authority refused it precisely because of the possible
adverse effect on light.
The defendant
was concerned; she had the bank loan, the builders and was keen to get on. She discussed it with the council. They said she could appeal to the Secretary
of State, but they suggested that she come up with a modified plan, cutting out
part of the building over the old garage site so as to allow rather more light
from there. So she could start building
and if the appeal succeeded easily build in the missing section.
So this is
what she did. On July 22 she submitted
an amended planning application. The
plaintiff got wind of it and on July 30 she put in a letter of objection on
grounds of interference with light. The
letter was drafted for her by her friend Mr Underwood and was clear in its
terms.
The council
considered the matter and on October 3 gave conditional planning
permission. It seems they must have been
satisfied that the modification reasonably met the objection on light. Nobody appears, however, to have considered
it in close technical detail. The
defendant fairly clearly thought she now had no problem. Nobody had explained to her (and from her
evidence I conclude that until much later nobody did) that the meeting of
planning objections had no effect as regards any infringement of the
plaintiff’s private rights.
Meanwhile, the
appeal proceeded. Representations were
put in in January. A number of
objections were received both from the plaintiff and neighbours and on March 13
the appeal was dismissed. So the
defendant never attempted to build the full scheme, but she did build the
modified one.
There is
considerable dispute, if only as to detail, about precisely what contacts were
made by the defendant to the plaintiff in the Autumn of 1985 and who said what
to whom. After nearly eight years it is
hardly surprising that recollections differ and that it is even unclear whether
there was one meeting or two. It would I
think be unprofitable to reach a firm conclusion even if I could. For present purposes I need only find as
follows:
(1) In early October the defendant let the
plaintiff have a copy of the plans.
(2) At least once in October there was a meeting
at which there were present the plaintiff, her friend Mr Underwood, the
defendant and an unnamed male friend of defendant’s.
(3) It is not at all clear whether the meeting
was really directed to getting the plaintiff to consent to the development or
merely to
hindsight, the plaintiff and Mr Underwood think the former; I am not wholly
sure they are right.
(4) What is clear is that the plaintiff declined
to co-operate in whatever she was being asked to do. Although the defendant behaved pleasantly and
courteously throughout (she is a lady accustomed to dealing with the elderly),
her friend showed an unfortunate lack of patience, which may have soured the atmosphere.
(5) Probably then the defendant said things to
the plaintiff which on her side may have been intended to show what a good
neighbour the hairdressing business would be and which the plaintiff and Mr
Underwood construed as inducements.
At this stage
the plaintiff had no solicitor. But she
soon consulted one. He did not act all
that effectively. There was doubt in his
mind whether planning permission had been granted or not, and although he made
inquires that doubt remained well into 1986 despite a letter in answer to his
inquiries from Merton London Borough Council of November 6 1985 which was
perfectly clear. He did however write to
the defendant on October 31 1985, asking if planning permission had yet been
granted and objecting to the obstruction of the plaintiff’s right to
light. This produced a letter from the
defendant’s solicitors asking for the precise objections and appearing to base
their confidence in their position (mistakenly) on the grant of planning
permission.
At the end of
November scaffolding went up, but the purpose appears to have been to
facilitate boarding up and nothing else happened beyond that.
The
plaintiff’s solicitors instructed a local surveyor at this time, and he
recommended the well known expert Mr John Anstey [FRICS], who gave evidence
before me. Unfortunately because of the
solicitors’ confusion regarding planning permission, having fairly quickly
instructed Mr Anstey they then told him to hold his hand, which he thus did
throughout the most critical period.
Nothing
further happened inter partes until on February 19 the defendant put in
some footings and her workmen took down the boundary fence, telling the
plaintiff as they did so that the wall would be as high as the guttering.
This provoked
the plaintiff’s solicitors to action.
They complained (but without benefit of expert assistance) in some
detail (and in response to the November letter) of the obstruction to
light. This produced a denial from the
defendant’s solicitors and a proposal to paint the wall with white paint. On March 10 the plaintiff’s solicitors
threatened proceedings, but then did nothing about it. Further correspondence and a stalling reply
followed in April.
Further
correspondence produced a reply from the defendant’s solicitors indicating that
the work was going well ahead and offering a personal discussion between the
lay parties which was not taken up.
In May Mr
Anstey was at last asked to inspect. He
also seems to have told the plaintiff something she did not know, that she was
eligible for legal aid (the solicitors have appeared to have been reluctant to
do a legal aid case). This prompted a
change of solicitors and in July her present solicitors were instructed,
applied for emergency legal aid, instructed counsel who viewed the premises and
advised. By now the building was up and
counsel advised as anyone would have done, that the time for an interlocutory
injunction was past.
So no
injunction was obtained restraining the building, which was duly completed and
occupied. Miss Hookings started her
business on the ground floor and moved into the flat. As built the building was the smaller version
for which planning permission had been obtained. The flank facing no 2 was faced in white
brick and the upper storey of the set back part was faced in, inter alia,
white plastic so it was hoped as to mitigate the effect on the plaintiff’s
light.
The plaintiff
started her action by writ issued on August 18 1986 (I infer as soon as legal
aid had been obtained) and the action has taken incredibly almost seven years
to come to trial. On one occasion the
defendant faced a debarring order in respect of incomplete discovery and even
at trial it was apparent that discovery had not been properly done. The defendant is now heavily in dispute with
her former solicitors, who have been discharged. I cannot of course adjudicate between them
but I do not approach this case on the basis that any of this was the
defendant’s personal fault.
Just to
complete the story, the defendant’s personal circumstances have changed. She met and married her husband, Mr Van den
Berghe in, I think, 1988. He is a
Belgian. Their intentions were that she
should carry on with her home and business and he would move to the UK and get
a job here. But a close family bereavement
caused a change of plan. In the result
the defendant disposed of her business to Mr O’sullivan and let the ground
floor to him on January 6 1989. She now
lives mostly in Germany, but retains the flat as her home in the UK and
occasionally stays there.
With that
history I come to the issues. The first
and critical issue is whether there has been actionable interference with
plaintiff’s light.
Interference
with an easement sounds in nuisance and not in trespass. For some purposes the two are scarcely
distinguishable, but the critical difference is that it is not any interference
with an easement of light that gives a cause of action. The interference must be such as to cause a
legal nuisance.
The starting
point is Colls v Home & Colonial Stores Ltd [1904] AC 179
where the House of Lords considered the whole basis of liability. The best-known passage, paraphrased in the
headnote and really encapsulating the decision of the House of Lords, is in
Lord Davey’s speech at p204 where he says:
. . . the owner
or occupier of the dominant tenement is entitled to the uninterrupted access
through his ancient windows of a quantity of light, the measure of which is
what is required for the ordinary purposes of inhabitancy or business of the
tenement according to the ordinary notions of mankind.
It is not
limited to any particular use to which a room has been put in the past — Price
v Hilditch [1930] 1 Ch 500, though what is ordinary must depend on
the nature of the building and to what it is ordinarily adapted: Allen v
Greenwood [1980] Ch 119 at pp130-131.
The building should be left adequately lighted for all ordinary purposes
to which they were or might reasonably be expected to be used in the future: Carr-Saunders
v Dick McNeil Associates Ltd [1986] 1 WLR 922*. Furthermore, what is in question is the
interruption of the direct light, special arrangement made by the servient
owner to ensure a degree of reflection by, as has been done here, colouring the
obstruction white will not do because there is no certainty that this can be
maintained in the future: Price v Hilditch [1930] 1 Ch 500.
*Editor’s
note: Also reported at [1986] 2 EGLR 181.
Pausing here
it is obvious that what the court is looking at is what is the light that is
left and whether that light so left is adequate in all the circumstances
according to the objective standards of a reasonable man: see Gale on
Easements 15 ed — now sadly I suppose a work of authority — at pp268 and
387.
What are the
standards of a reasonable man? The
well-known expert work of Mr Waldram in the 1920s led for many years to the
belief that there was almost a rigid rule that if half the room was adequately
lit, ie had not less than one lumen at table level, the light left was
sufficient. This was held not to be a
rigid rule by the Court of Appeal in Ough v King [1967] 1 WLR
1547† at pp1552-3. The Master of the
Rolls saying that in some cases a higher standard may be reasonably required.
† Editor’s
note: Also reported at (1967) 204 EG 251.
It is
important to read some of the detail in Ough v King because it is
quite apparent that what the Court of Appeal had in mind (following something
the judge below had said) was that the notions of mankind as to what was
adequate had changed and continued to change, ie people in modern conditions
were no longer prepared to put up with the dingy lighting standards of their
ancestors. So Ough v King,
I think, really means not so much that one disregards the 50/50 rule, but that
it is a bare minimum.
In the present
case there is the particular problem that: (i) the living room was badly
designed from the start with the window in one end of the long side so that one
side of the room was never particularly well
and ill-lit areas to advance by a small, but arguably critical distance; and
(ii) that in the kitchen the ill-lit area is a circulation area rather than a
working area. I will develop this more
fully later.
It seems to me
that having regard to the authorities I ought to approach the problem on these
bases:
(i) In a room that is already ill-lit every bit
of light is precious.
(ii) 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.
(iii) 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.
(iv) The test is not merely a statistical one;
test (ii) provides a pretty irreductible minimum.
I have had the
benefit of expert evidence from two distinguished experts, who disagree about
very little and I have also myself inspected the premises. As I have said the experts are largely on
common ground and from their evidence and the helpful profiles that they have
drawn I derive the following material:
The living
room
(a) Before the building the well-lit area was 65
sq ft, equivalent to 51% of the floor area.
It is now 52 sq ft and therefore equivalent to 41%.
(b) What has happened is that the ill-lit area
which is the end of the room furthest from the window has increased on a
bow-shaped profiled strip extending the whole width of the room, broadest at
the window wall and narrowest at the rear.
The broader part of the strip is somewhat over 1 ft wide.
(c) The part of the room nearest the window and
the fireplace where at present the principal sitting arrangements are remains
unaffected.
The
kitchen
(a) Prior to the building the kitchen was well
lit as to 88% (47.5 sq ft).
(b) Now it is to be taken as at best 31 sq ft and
at worst 29.75 sq ft representing respectively totals of 57.4% and 55.1% so
that the loss is on the one hypothesis (33.3 sq ft) equivalent to 18% and on
the other 31 sq ft equivalent to 16.75%.
I shall have in a moment to decide between the two versions.
(c) The profile of loss is complex. There is a small peak-shaped area of loss to
the right of the window and near to the window wall. But the main area of loss is to the rear of
the kitchen near the door that gives on to the living room. The kitchen is L-shaped so if one views it
per the plan in the defendant’s report it is the right-hand projection of the L
that has been almost totally lost. The
working part of the kitchen, that is the area nearer the window where at
present the sink, the working surface and the cooker are placed is largely
unaffected.
It is at this
point I should deal with the issue between the experts. It is in practical terms small, but raises a
point of principle. There is in addition
to the window a small supply of borrowed light throughout the glazed door to
the lean-to structure, which itself has a window. Mr Anstey said that if this had simply been a
window he would have given full effect to it, but because it was twice removed
he did not. Mr Paul Wiseman [RIBA Hon
ARAM], for the defendant, gave it full effect.
The difference as said is 2.3%, not decisive. But so far as necessary I would prefer Mr
Wiseman, simply because on principle I do not think you can ignore any part of
the effect of any other source of natural light, given the test that I have to
apply, ie ‘what light is there now’.
My own
inspection took place at about 3 pm on an early September day when the weather
conditions could be described as ‘cloudy bright’, ie there was plenty of light,
but it was diffuse and there was no direct sunlight and therefore no hard
shadows. As seems to have been the
experience of the county court judge in Ough v King, I too did
not find the rooms as dark as I had expected, though I should remember that on
a really overcast day things could be appreciately worse and there might well
be a difference later in the year when the sun is lower, but I had no evidence
of what that difference would be.
There is an
obvious contrast in the living room between the window end and the door
end. The window end is moderately well
lit though not particularly bright, the door end is sombre, but not dark. It was just possible to perform Mr Waldram’s
celebrated test with a copy of a newspaper at table level. It could be read, but not without some
strain.
In the kitchen
the sink and working area appeared fairly bright and though the circulation
area was sombre it did not appear to be so dark as, in the conditions in which
I saw it, to cause real difficulty in finding one’s way and avoiding obstacles
(the most notable obstacle being the step down from the living room). It is also, however, important to see what
the plaintiff herself says about the conditions as, not least, because I saw
the property only in one comparatively favourable state, while plaintiff of
course lives there all the time. As to
the living room she said:
The amount of
light coming through the downstairs windows has been severely diminished by the
extension
She then
complains about her loss of the open view and says:
I never had
any view from the downstairs window but there was a feeling of openness and
there was a lot more light than there is now.
There has been a hugh loss of sunlight.
The whole room used to be filled with sunlight in summer. Now a very thin strip of light travels along
the wall during the day. Since the
extension was built I have suffered severe depression.
— which she
attributes to loss of light though there is no medical evidence. She adds that she switches her lights on
earlier than she did and her electricity bill has gone up in consequence. She confirmed and elaborated on this in the
witness box.
I find it
difficult to say that even though the expert has stated that the actual area of
loss is comparatively small that this loss is merely a small injury. I take care to discount some of what she says
(i) part of her complaint is as to the loss of openness, which is not a matter
for liability; (ii) I think it more than likely that the depression may relate
more to (i) than to loss of light. But
having done that discounting I am left with the firm impression that though the
loss of light is limited in scope it is none the less of real significance to
somebody who is to live in that room.
As far as the
kitchen is concerned the principal complaint is as to loss of sunlight. On the evidence and my observations I have
little doubt as to the conclusions I should reach.
The living
room
The cottage
has only two living rooms, the other being the front room facing the street and
it is eminently reasonable to treat the back room as the room that most people
living there would treat as their principal living room as indeed the plaintiff
does. So viewed it was poorly lit to
begin with and a drop below 50%, even though it is a small drop (and I shall
have to consider the effect of this on relief) really does push it below what
is acceptable. But it is not merely a
question of statistics. The plaintiff’s
evidence makes it obvious to me that there is an appreciable drop in the
comfortable occupation of the room going beyond the comparatively slight drop
that the expert evidence alone would suggest.
While the expert evidence alone would be enough to say there was an
actionable interference but a slight one, the plaintiff’s evidence goes to show
that it is real and deleterious in terms of beneficial occupation and goes
beyond the merely slight. I conclude
that there is an actionable interference with the right to light. The fact that the rear wall of the back
addition to the defendant’s premises has been advisedly constructed in a white
material is as I have explained irrelevant as a matter of principle.
The
kitchen
The drop is
substantial, but what is left is over 50%.
Here I think the use to which the room could be put is critical. If the affected area could be used for
anything other than circulation then one would be very much inclined to say
that the fact that room is over 50% is in modern conditions not good
enough. But realistically, constructed
as
room that can be used is adequately lit.
As I have said the circulation area is not itself so dark as to render
the room uncomfortable. Had the
extension been constructed as originally envisaged and not in the modified form
required by the planners the situation could I think be critically
different. I do not disregard the
plaintiff’s evidence as to the drop in sunlight, but I think it is less
critical in this room than in the living room and that all in all there is
adequate light. I conclude there is no
actionable interference in respect of the kitchen.
Relief
It is now
necessary to consider the question of relief, should it be by mandatory
injunction or will damages in lieu of an injunction suffice? I propose, despite the conclusion to which I
have come on liability, to make all necessary findings of fact in case the
matter should go further.
Mr Anstey, the
expert for the plaintiff, says that in order to abate the nuisance in regard to
the living room what needs to happen is for a corner of the first floor of the
defendant’s structure to be shaved off — I will refer to as the ‘chamfer’. In order to abate any nuisance to the kitchen
there would need to be a substantial lowering of the roof over the staircase at
the rear of the property substituting a sloping roof for the present flat one
and probably involving some lowering of the street frontage at that point. I do not understand Mr Wiseman seriously to
disagree with this.
The
defendant’s valuer flippantly said in his report that all the plaintiff needed
to do was to clean her windows. He
accepts having sat through the expert evidence that this was unfortunate and it
is the sort of comment that ought not to have been given in evidence.
No evidence
was given as to what would need to be done to the defendant’s premises to
achieve these results, but in the course of the view I was invited to inspect
and did inspect the interior to the defendant’s premises. It is apparent that if the chamfer is carried
out a corner will need to be cut off the defendant’s bathroom. This is a shower room with toilet, and
cutting off the corner will remove the toilet, which is the only one in the
premises. Obviously the bathroom area
will need substantial redesign and as it is next to the kitchen I would have
little doubt that it would be a tricky and expensive operation in order to obtain
the necessary consent. I suspect,
however, that it could be done somehow.
The alteration
of the roof over the staircase is even to the non-expert an obviously very
difficult operation because it would leave insufficient headroom at the
staircase head and would make it impossible to make a sufficiently high doorway
into the kitchen into which the staircase leads directly. The redesign would be major and expensive if,
as to which I have reservations, it could effectively be done at all. But in view of my conclusion, having once
found this fact I can leave it there.
Although a
mandatory injunction is always up to a point discretionary the usual rule is
that where a plaintiff establishes an actionable interference he is entitled to
a mandatory injunction at trial, the law in general setting its face against
the compulsory purchase of an aggrieved party’s rights, which is what the
refusal of an injunction would mean.
Therefore, the
plaintiff would be entitled to ask for an injunction to effect the chamfer
unless there was some particular circumstance rendering the grant of an
injunction inappropriate. I turn to
consider what those circumstances might be:
Failure to
obtain an interlocutory injunction
I have set out
the history in some detail. Seen from the
defendant’s point of view there was a lot of huffing and puffing and no
action. The plaintiff’s solicitors kept
on saying there would be an application for injunction and then did nothing
effective. Behind the scenes what
happened, as the plaintiff fully satisfies me, was that (a) the solicitors
initially and not very reasonably allowed themselves to be misled into thinking
there was not yet any planning permission, so they delayed fatally instructing
Mr Anstey and despite the fact that the plaintiff was an elderly pensioner with
no income but her old age pension and no property but her cottage they showed a
marked disinclination (possibly compounded by ignorance) to advise her to
obtain legal aid. When she changed her
solicitors they did the obvious thing and immediately applied but by then it
was too late to obtain an interlocutory injunction. One must be moderate in criticising
solicitors who have had no opportunity to explain their conduct but on the
evidence I have heard I am not impressed — indeed if one looks at the way both
firms handled the matter their clients were not well served. Sensible advice and action at an early stage
— possibly involving immediate instructions to surveyors — could have saved all
the expense and agony of this action.
Mr Phillip
Reed, for the defendant, submits that the failure to obtain an interlocutory
injunction and the accompanying delay in issue of the writ is a critical factor
in deciding whether to refuse relief.
While the defendant went on in the face of a warning she did not go on
in the face of a writ, there was no writ until far too late.
This type of
difficulty received attention in Wrotham Park Estate Co Ltd v Parkside
Homes Ltd [1974] 1 WLR 798 at p810 where Brightman J says:
. . . it is
no answer to a claim for a mandatory injunction that the Plaintiffs, having
issued proceedings, deliberately held their hand and did not seek the
assistance of the court for the purpose of preserving the status quo. On the other hand, it is, in my view, equally
true that a Plaintiff is not entitled ‘as of course’ to have everything pulled
down that was built after the issue of the Writ.
What I get
from that passage is really this: that a failure to move the court will not of
itself disentitle you to final relief, but that if you do not move the court
and the building is erected and there is some other ground for refusing a
mandatory injunction you will not get the building pulled down, whereas if you
had moved quia timet the building would not have been erected at all
(the discretionary ground not being relevant at the interlocutory stage). Thus here if one were to come to the
conclusion that the chamfer came within what I will call (and elaborate on) as
the Shelfer exception a mandatory injunction would be refused, but the Shelfer
exception would have been irrelevant to a negative injunction, which at the
interlocutory stage would almost certainly have been made.
One must
remember that Brightman J was dealing with the case actually before him and
that the relevant date was in fact there the issue of the writ, all the houses
having been built after it. The passage
is therefore necessarily silent about what the position is if the right is
asserted before any building takes place, but no writ is issued until the
building is substantially up. For my
part, I would have thought on general principles that if it is known that the
right is asserted and nothing done by the plaintiff to make it appear that
right has ceased to be asserted then the builder takes the risk of going on the
failure to apply interlocutorily will not of itself stop final relief being
granted, although as I have said circumstances may be at the trial stage which
prevent a mandatory injunction which would not have prevented an interlocutory
injunction had one been applied for. I
am fortified in this view by Snell’s Equity, 29th ed, at p658 and cases
there cited.
On the
particular facts of this case rights were first asserted by letter of October
31 1985. They were asserted again on
February 20 1986, March 10 and after a fashion, May 13. True it is that they were
under-particularised and the threats of proceedings were not carried out, but
any recipient, especially reviewing the correspondence, would have known of a
consistent assertion of interference with a right to light. None of this in any way indicates that the
plaintiff has forgone her rights or acquiesced in the tort.
I therefore
would not refuse a mandatory injunction on the ground of failure to move. I would add for completeness that though I
sympathise with the position in which the plaintiff found herself through no
fault of her own I do not think her difficulty with her solicitors are relevant
to the question. I think as in most
other places in litigation the actions of the solicitors and the actions of the
client
their solicitor, it is still, as regards the merits of the action, delay.
I come now to
what to my mind is the much more serious ground of opposition to a mandatory
injunction. The starting point is the
well known case of Shelfer v City of London Electric Lighting Co Ltd [1895]
1 ChD 287. As summarised usefully by Snell
at p657 what Shelfer decided that was a good working rule that an
injunction (as I read it whether prohibitory or mandatory) would be refused and
damages awarded only where there was: (1) a small injury to the plaintiff; (2)
that injury was capable of being estimated in money; (3) that injury would be
adequately compensated by a small sum; and (4) the grant of an injunction would
be oppressive.
Shelfer is I think really an authority on the general principles of awarding
damages in lieu of an injunction and while it comprehends mandatory injunctions
is not the sole ground for refusing one.
It is well established that although in general a mandatory injunction
follows the event its grant is always discretionary taking into account such
factors (by no means exclusive) as to the extent of damage which the plaintiff
would suffer, and conduct of the defendant in rushing up a building in face of
objections: see generally Snell at p659.
This last factor is a factor which if one read the judgments in Shelfer
is a criterion that provides an exception to what would otherwise be a Shelfer
result.
I was referred
to the decision of the Court of Appeal in Pugh v Howells (1984)
48 P&CR 298. In that case the county
court judge had come to the conclusion that the Shelfer criteria applied
in a right to light case and awarded damages — refusing a mandatory
injunction. The Court of Appeal reversed
him. They did not in terms criticise the
application of Shelfer to a right to light case (see Fox LJ), but it was
considered that (i) on the facts it was dubious whether injury could be said to
be small and (ii) there was no valuation evidence as to the effect in money so
the judge just took an educated guess.
(The latter is as will appear not the case here.) But what really caused the Court of Appeal to
allow the appeal was the conduct of the defendants in rushing up the building
in the face of the plaintiff’s assertions, described as taking a risk that they
would get away with it. One is left with
distinct flavour that the Court of Appeal thought the defendants’ conduct more
than a little disgraceful.
I would first
consider whether Shelfer criteria would apply at all. There is at first sight a degree of
intellectual tight-rope walking between saying that an interference with light
is a substantial interference with comfort and saying that it is small and
within the Shelfer criteria. But
I observe that although in Pugh the Court of Appeal were against the
judge on the facts they did not rule out the principle. In this case the expert evidence viewed alone
allows the interference to be precisely measured. Its real significance is that it reduces the
room below the acceptable minimum. But
what it does is very precisely to take out a comparatively narrow band leaving
what is on the design of the room the more useful area still substantially
useful on its own. That would suggest
the change is small, but ought to consider the plaintiff’s own evidence, which
I have reviewed at some length earlier in this judgment.
I am left with
the firm impression that though the loss of light is limited in scope it is
none the less of real significance to somebody who is to live in that room and
therefore: (1) it cannot be dismissed as small; and (2) damages are not really
an adequate remedy for that sort of loss of amenity. Had I considered otherwise, I would have
found that the loss could be valued, because there was evidence before me (to
which I will refer later de bene esse) on which damages could properly
be assessed and had the injury merely been small then the effect of the injunction
on the defendant would have been disproportionate and therefore
oppressive. But as I now find, hard on
the defendant though the result is, it is justified by the fact that the injury
to plaintiff is not merely small.
It follows
that not only do I reject the application of the Shelfer criteria, but I
also conclude that if one balances the plaintiff’s loss against the defendant’s
loss, although the plaintiff’s loss is less devastating none the less it is
sufficiently significant to justify the expense and inconvenience of the work
which it follows the defendant must be called on to do.
I add for the
sake of completeness in case this goes elsewhere that had I found Shelfer satisfied
I would not have found that this was a case of the Pugh v Howells type. Although the plaintiff went on complaining
and threatening, the defendant did nothing hurried, her solicitors asked for
details which they did not get, she was perfectly open about what she did and
her personal conduct was impeccable.
Sadly she did not receive the advice she might have had which was to
have a surveyor look at the effect of what she was going to do. She honestly believed the planners that by
modifying her plans had met the plaintiff’s objections. She really and honestly thought it was a matter
of planning and not of private rights.
Her conduct was quite different from that attributable to the defendants
in Pugh and should not be stigmatised.
The result
thus far is that I would grant a mandatory injunction in the case of the living
room so as to compel the defendant to execute the works which I have referred
to as the chamfer. She cannot do it
overnight; plans will have to be prepared, building regulation consent sought,
finance raised and workmen instructed.
It is essential that she is given a reasonable time in which to
comply. I will hear submissions as to
what such time should be.
Strictly
speaking that disposes of the action.
But if it goes elsewhere and the Court of Appeal were to consider that
there ought to be an award of damages in lieu of an injunction I ought to make
findings as to what those damages might be.
I have heard both expert evidence, evidence of the parties and
submissions. There are two ways of
approaching the damages: (i) on a simple basis of loss of market value; or (ii)
on what is called the ‘user principle’.
It was on (i) that the experts expressed their views. The defendant’s expert gave evidence first. It was he who had expressed the flippant view
about cleaning windows to which I referred earlier in this judgment. It was not only for that reason that I had
doubts about him, but it hardly helped.
He seemed to think there was no real difference in market value at all
which as a proposition I do find a little surprising.
Mr Martin
Higgins [FRICS], the plaintiff’s expert thought there was. As I analyse his evidence I would not have
thought the difference was high, but it was there and based on that evidence
had I thought it right to approach the case this way I would have said the
figure was £1,500.
I turn now to
(ii) the so called user principle. This
was originally derived from cases of trespass in the 19th century of which a
prominent example was Whitwham v Westminster Brymbo Coal & Coke
Co [1896] 2 Ch 538. In Wrotham
Park it was applied to cases of damages in lieu for breach of restrictive
covenant where no actual damage suffered by the owner at all, but he had lost
the right of veto given by his restrictive covenant by the refusal of the
mandatory injunction, so Brightman J’s approach was to apply Whitwham by
parity of reasoning and fix damages at what he would have had to pay for a
wayleave — the plaintiffs set their sights high at substantial proportion of
the developers’ profit but the court only gave 5%, compare the Stokes v Cambridge
type of case where the percentages are high.
The principle
has also been applied to easements: see Bracewell v Appleby [1975]
Ch 408*. The basis of valuation is I
would have thought to take what a willing vendor would have paid a willing
purchaser.
*Editor’s
note: Also reported at (1974) 237 EG 731, [1976] 1 EGLR 119.
In my
judgment, user principle damages would be appropriate to a case like this where
what one would be looking at is damages to replace an injunction that might
otherwise have been granted. An
injunction can be granted in circumstances where no or no conventional common
law damage has been suffered at all, see Wrotham Park where there was no
damage to the dominant tenement. What was
important to the plaintiffs and what they had a right to uphold was the
covenant simpliciter. It may be here
that the damage to the value of the house on the market is slight but the
person entitled to
terms, to uphold that right specifically.
If they are to lose that right they should be compensated for losing it
on some basis that represents a fair price for being bought out.
In Wrotham
Park the method adopted was to look at what profits the developer would
have made. This is a familiar concept in
compulsory purchase cases, classically also in the development world in ‘ransom
strip’ cases. The question is how much
of the development value is the person bought out reasonably entitled to
demand. Such percentage is really a
matter of valuation for the court, but the sort of factor that would bear on it
seems to me to be:
(i) is it a ransom situation, ie is the
development stuck without it or merely inconvenienced;
(ii) does the loss of the right inconvenience the
seller?
In Wrotham
Park there was a ransom situation, but no loss. This is not a ransom case, but 5% is too low
in this case. I think the right figure
is 15% of the benefit from the development.
Mr Reed says the only benefit which should be taken into account is that
attributable to the flat. It is not
right to leave out the salon. This was a
single development, based on an enhancement of £30,000, I would assess the
damages at £4,500.
