Easement of light — Obstruction of ancient lights — Claim against neighbouring owners in respect of proposed new building — Measure of damages for interference with plaintiffs’ rights — Expert evidence on loss of light — Development of the law relating to damages for interference with rights to light — Carr-Saunders v Dick McNeil Associates Ltd followed
The following cases are referred to in
this report.
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
Tehidy Minerals Ltd v Norman [1971] 2 QB
528; [1971] 2 WLR 711; [1971] 2 All ER 475; (1970) 22 P&CR 371, CA
Tisdall v McArthur & Co (Steel &
Metal) Ltd [1951] 1R 228
Wrotham Park Estate Co Ltd v Parkside Homes Ltd
[1974] 1 WLR 798; [1974] 2 All ER 321; (1973) 27 P&CR 296
Andrew Francis (instructed by Barlow Lyde
& Gilbert) appeared on behalf of the plaintiffs; Robert Bailey-King
(instructed by Michael Conn & Co) represented the defendants.
The present dispute was between
neighbouring property owners, the plaintiffs complaining of the interference
with their ancient lights likely to be caused by the completion of a
substantial reconstruction projected by the defendants. The plaintiffs, Marine
& General Mutual Life Assurance Society, were the freehold owners of a
small office block, 12 Park Place, London SW1, in the St James’s Street area.
The defendants, St James’ Real Estate Co Ltd, were leaseholders of the
adjoining property, 63 St James’s Street. At the rear of the plaintiffs’
property there was an open space between it and the defendants’ property.
Before the defendants’ reconstruction began there was a light well between the
properties. The effect of the reconstruction was to remove the light well and
raise the wall and roof of the defendants’ property. The result was the present
proceedings, which were begun after the plaintiffs had become fully aware of
the probable effects of the defendants’ plans. The plaintiffs claimed relief
both under sections 3 and 4 of the Prescription Act 1832 and under the doctrine
of a lost modern grant (which after some doubt was held to apply to a claim for
light in Tisdall v McArthur & Co (Steel & Metal) Ltd
[1951] 1R 228. In opening the present case the plaintiffs’ counsel abandoned
the claim for an injunction, so that the issue was one of damages only.
The difference in the rules applicable to
claims based on the Prescription Act 1832 and claims under the doctrine of lost
modern grant was illustrated in the present case. The plaintiffs were unable to
rely on the 1832 Act in respect of the loss of light to the first-, second-and
third-floor windows because, the windows having been blocked in, the use of
light had not been enjoyed for 20 years ‘next before some suit or action’.
However, the judge found that the right in respect of these windows had been
established under the principle of lost modern grant and rejected a submission
that the right had been abandoned: he applied the test of abandonment as set
out in Tehidy Minerals Ltd v Norman [1971] 2 QB 528.
On the issue of damages the judge
considered reports and oral evidence from experts on rights of light and on
valuation questions generally from both sides. The experts on light agreed a
report on the extent of the loss of light. The area of 12 Park Place (including
basement) was some 4,000 sq ft. Before the reconstruction of 63 St James’s
Street some 76 sq ft at the rear of 12 Park Place were adequately lit; and now
55 sq ft of those 76 sq ft were no longer adequately lit. This seemed to show
that prior to the reconstruction the rear of 12 Park Place received only
limited light; it was typical of many central London properties in not relying
upon daylighting for beneficial use of the accommodation. There was
considerable divergence in the assessment of damage made by the respective
valuers. An expert for the plaintiffs put it at £6,375, while another valuer
for the defendants reckoned that the rental value of 12 Park Place was not at
all diminished by the development of 63 St James’ Street.
In the end the judge awarded the
plaintiffs £18,000. In doing so he departed from technical calculations of
light loss and the calculation of the rental value applicable to light in favour
of broader considerations. He applied the principles of Carr-Saunders v Dick
McNeil Associates Ltd [1986] 1 WLR 922*, following the new ground broken by
Brightman J in Wrotham Park Estate Co Ltd v Parkside Homes Ltd
[1974] 1 WLR 798. In awarding general damages the judge was entitled to take
into account not only the actual loss of light but also the loss of amenity
generally, owing to such factors as sky visibility, the impression that the
building at the rear was now apparently closer than it was previously (although
this was an optical illusion), the loss of sunlight and so on: in short, the
general deteriorating quality of the environment. The judge was also entitled
to take into account the plaintiffs’ bargaining position, because, unless they
were bought off, the defendants’ development was inhibited: Wrotham
case, supra. In the present case the judge found assistance in the
evidence of a neighbouring transaction. The Duke of Devonshire, proprietor of
Pratts Club, at 14 Park Place, was faced with the same problem as the
plaintiffs in relation to the defendants’ building project. The duke, however,
entered into negotiations with the defendants whereby, in consideration of a
payment to him of £25,000, he agreed to withdraw his objections to the defendants’
development. In principle this was the decision of Brightman J in the Wrotham
case to award damages of such a sum as the plaintiffs there might reasonably
have demanded as a quid pro quo for relaxing the restrictive covenant.
The position of the Duke of Devonshire was in some respects stronger than that
of the present plaintiffs, a difference reflected in the figure of £25,000 as
compared with the judge’s assessment in favour of the plaintiffs of £18,000.
*Editor’s note: Reported also at [1986] 2
EGLR 181.
Plaintiffs awarded general damages of
£18,000.
