How will the courts assess damages for infringements of rights to light? The High Court decision in Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2007] EWHC 212 (Ch); [2007] 14 EG 106 suggested that the courts will normally award profits-based damages rather than damages for loss of amenity, in cases where an injunction has been refused.
What, then, are we to make of the county court decision in Forsyth-Grant v Allen and another [2007] PLSCS 193? This case concerned the construction of two semi-detached houses that affected rights of light prescriptively acquired by an adjoining hotel. The builder employed a rights to light surveyor, who had contacted the proprietor of the hotel several times to ask for access in order to assess the likely effect of the building work. The hotelier refused to co-operate, and tried to prevent the development by various means. She subsequently issued proceedings for the infringement of her rights to light, claiming damages based upon the profits made by the builder, who was using the dwellings as his family home.
The judge decided that it would be unreasonable to criticise the builder for pressing ahead with the development. It had been impossible to assess the extent of any potential damage to the prescriptive rights to light enjoyed by the hotel because the hotelier had refused to provide.
She had resolutely refused to negotiate with the builder, and had claimed a loss of light in a room that was let out to paying guests, although this was, in fact, a storeroom. In the circumstances, it would not have been fair or equitable to have granted an injunction.
That being so, the principles laid down in Tamares were not relevant because damages based upon an objector’s hypothetical bargaining position were predicated on the objector being entitled to an injunction. However, the judge did accept that it would be unjust to refuse to award damages to the hotelier for the infringement of her rights to light, and accepted evidence that valued the loss of light at £1,850.
The hotelier’s behaviour clearly had a significant effect upon the outcome of this case, but it is difficult to reconcile the judge’s reasoning with the more authoritative decision in Tamares. Indeed, the parties obviously thought that Tamares was relevant, because they had attempted to calculate the “profit” from the development by reference to: (i) the changes that would need to be made to the buildings constructed on the servient land to accommodate the hotelier’s rights to light; and (ii) the resulting diminution in the value of the servient land.
The case was decided by the county court and may not be followed. However, it indicates potential judicial disagreement about how to assess damages for such infringements. If so, it is only a matter of time before the Court of Appeal will be required to reach a decision.
Allyson Colby is a property law consultant
