Right to light – Hotel – Infringement by construction of new building on adjoining land – Claimant hotel owner resisting all attempts to resolve the issue – Basis upon which damages to be awarded – Relevance of claimant’s conduct – Claim allowed in part
In 1998, the claimant purchased a seafront hotel on the Isle of Wight. At the time of purchase, the area to the west of the hotel was open land that was used for car parking. However, in 2001, the first defendant purchased that land with a view to building a house for his family; the land was later transferred into the name of his son, the second defendant. He subsequently obtained planning permission for two semi-detached houses. The architect responsible for designing the new building instructed a building surveyor who specialised in rights to light. As a result of the surveyor’s advice, the building plans were amended. The surveyor also wrote to the claimant, on behalf of the first defendant, offering to pay a reasonable sum by way of compensation for any injury to the claimant’s right to light, together with the reasonable fees of a right to light consultant to represent the claimant. The claimant, who opposed the development, failed to respond to that or further correspondence, except for one letter in non-committal terms. She refused to co-operate with the surveyor’s requests to visit the hotel, in order for him to establish the precise effect that the development would have upon that property, until she was ordered to do so by a district judge in January 2007.
As a result of that inspection, the surveyor produced a report, indicating that, in his view it was possible to eliminate damage to the claimant’s right to light by including a light well in the new property. However, it was by then too late because construction of the property had begun in 2005. Meanwhile, in 2006, the claimant commenced proceedings against the defendants, alleging, inter alia, a breach of her right to light and seeking damages representing the entire net incremental profit that the defendants had made as a result of the breach. The defendants contended that, in view of the claimant’s conduct, she should be awarded no more than notional damages for the damage to her right to light.
Held: The claim was allowed in part.
This was not an exceptional case of the kind where an account of profits, as sought by the claimant, might be appropriate: Attorney-General v Blake [2001] 3 WLR 625 applied; Chesworth v Farrar [1967] 1 QB 407 distinguished. Nor did damages fall to be awarded in accordance with the hypothetical negotiating position between the parties. That approach was predicated upon the owner of the dominant tenement being entitled to an injunction in respect of the infringement of the right to light, and, on the evidence, it would not have been fair or equitable to grant an injunction to the claimant: Carr-Saunders v Dick McNeil Associates Ltd [1986] 2 EGLR 181; (1986) 279 EG 1359 and Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2007] EWHC 212 (Ch); [2007] 1 EGLR 26; [2007] 14 EG 106 distinguished. In deciding whether an injunction would have been appropriate, the court was entitled to take into account the claimant’s attitude towards the defendants from the outset. The evidence showed that the claimant had been determined to do everything she could to prevent the development from proceeding. The defendants had genuinely wanted to resolve the matter amicably, but the claimant was interested only in pressing ahead with her claims and having them decided by the court at great expense to herself and the defendants. In the circumstances, the damages to be awarded to the claimant should be confined to the book value of £1,848.63 common law damages for infringement of her right.
Mr Lay appeared for the claimant; Mr Burns appeared for the defendants.
Sally Dobson, barrister