Right to light – Infringement – Appellant making claim in nuisance – Damages awarded on basis of actual loss to appellant caused by infringement of right – Judge refusing to order account of profits by respondent developer – Whether account of profits available remedy in nuisance cases – Whether exceptional circumstances required – Appeal dismissed
The appellant owned a hotel on land that adjoined an open site that the respondents had acquired with a view to development. In 2002-03, the respondents obtained planning permission to build two semi-detached houses on the site. The appellant was opposed to any development and raised various objections, including a complaint that the development infringed a right to light acquired by prescription in favour of the hotel. The respondents sought to minimise the problem by amending the building plans, and also offered to pay reasonable compensation to the appellant, for which purpose they requested a visit to the hotel in order to assess the potential effect upon light to the various rooms. The appellant refused to agree until required to do so by a court order made in the context of proceedings brought by her in respect of the development.
Those proceedings included a claim in nuisance in respect of the interference with her right to light; the relief sought by the appellant was an order for an account of profits by the respondents or, alternatively, an award of damages calculated by reference to the profit made by the respondents on the development. Expert evidence before the judge indicated that, had the appellant raised the issue earlier, the infringement could have been avoided by the inclusion of a light well within one of the houses. The judge held that there were no exceptional circumstances such as to justify an account of profits. He further declined to award the appellant a share of the respondents’ profits attributable to the infringement based upon the amount that the respondents would have agreed to pay for a release of the appellant’s right to light. He held that such a remedy was available only where the court would have been prepared to grant an injunction to restrain the interference with that right, and that the court would not have granted an injunction to the appellant in light of her unreasonable conduct. He awarded damages of £1,848 in respect of the actual financial loss suffered by the appellant following a reduction in value to certain hotel rooms that received less light than previously. The appellant appealed against the refusal to order an account of profits.
