Regan v Paul Properties DPF No 1 Ltd and others

Development — Respondents redeveloping site close to appellant’s property — Appellant complaining of interference with right to light — High Court regarding damages as appropriate remedy — Appellant appealing on question of remedy — Whether appellant entitled to permanent injunction requiring respondents to demolish building in course of construction — Appeal allowed The appellant owned a long lease of a maisonette on the first and second floors of a property in which he lived with his family. The respondents were the freeholders of three three-storey properties situated almost directly opposite his property. The respondents agreed a joint development of their properties and obtained planning permission to construct a five-storey building on the combined site. The appellant applied to the court for injunctions and damages against the respondents, alleging infringement of his right to light arising from the development. In particular, he sought an injunction restraining the respondents from continuing with the development. The High Court held that an actionable nuisance had been committed but, in the exercise of the court’s discretion, awarded damages in substitution for an injunction: see [2006] EWHC 1941 (Ch); [2006] PLSCS 182. The appellant appealed on the ground that the deputy judge had misdirected himself in law, first in ruling that the refusal of an injunction in cases of an infringement of right to light, and the grant of damages in lieu, was not an exceptional course; and, second, in putting the burden of proof in a right to light case on the appellant to persuade the court damages should not be awarded. Held: The appeal was allowed. The deputy judge had been wrong in principle to place the onus on the appellant to show why damages should not be awarded. It was open to the appeal court to exercise its discretion on remedies and, on the basis of correct legal principles, the proper course was to grant an injunction against the respondents. In the circumstances, the court was not justified in denying the appellant an injunction, effectively forcing him to accept compensation for losing the light in his home. A claimant was prima facie entitled to an injunction against a person committing a wrongful act, such as continuing nuisance, which invaded the claimant’s legal right. The wrongdoer was not entitled to ask the court to sanction his wrongdoing by purchasing the claimant’s rights on payment of damages assessed by the court. The judicial discretion to award damages in lieu should take account of well-settled principles and should not be exercised to deprive a claimant of his prima facie right except under very exceptional circumstances. Although it was not possible to specify all the circumstances relevant to the exercise of the discretion or to lay down rules for its exercise, it was relevant to consider whether: (i) the injury to the claimant’s legal rights was small; (ii) the injury could be adequately estimated and compensated by a small money payment; (iii) it would be oppressive to grant an injunction; (iv) the claimant had shown that he or she wanted only money; (v) the claimant’s conduct rendered it unjust to grant more than pecuniary relief; and (vi) other circumstances justified the refusal of an injunction: Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 applied. The test for infringement of the right to light was whether the obstruction complained of was a nuisance in that there was a substantial loss of light rendering the house less fit for occupation and generally uncomfortable: Colls v Home & Colonial Stores Ltd [1904] AC 179 applied. In the present case, the respondents had taken a calculated risk in deciding to proceed with the development after the appellant had started his claim for infringement of his right to light, and it was not oppressive to the respondents, or unreasonable or inequitable, to grant an injunction to protect the appellant’s right to light in relation to his property. Stephen Bickford-Smith (instructed by Child & Child) appeared for the appellant; Andrew Francis (instructed by Dawsons & Co) appeared for the respondents. Eileen O’Grady, barrister