Regan v Paul Properties DPF No 1 Ltd and others

Development — Defendants redeveloping site close to claimant’s property — Claimant complaining of interference with right to light — Whether claimant entitled to injunction restraining defendants from continuing with development and/or damages — Claim allowed in part The claimant owned a long lease of a maisonette on the first and second floors of a property in which he lived with his family. The defendants were the freeholders of three three-storey properties that were situated almost directly opposite his property. The defendants agreed a joint development of their properties and obtained planning permission to construct a five-storey building on the combined site. The claimant applied to the court for injunctions and damages against the defendants for alleged infringement of his right to light arising from the development. He contended that his property had suffered a reduction in value post-development. The defendants challenged the convention to the effect that once it had been shown that an interference had reduced the available adequate light to a room to an area measuring less than 50% of that room’s total floor area, the interference would constitute a nuisance (the so-called 50:50 rule). The question for the court was whether the development had caused any actionable interference with the light entering the claimant’s property. Held: The claim was allowed in part. The claimant had satisfied the general test laid down by the House of Lords in Colls v Home & Colonial Stores Ltd [1904] AC 179 and had established that the interference with his right to light rendered the enjoyment of his living room significantly less comfortable and beneficial than previously. A development that, although interfering with the available light left the dominant property with enough adequate light to satisfy the 50:50 condition might none the less constitute a nuisance in modern conditions. That was not a rule of law but a useful guide that was applicable to the majority of cases concerning infringements of rights to light, especially where the dominant tenement was a dwelling and the room in question was the living room. The rule need not be followed in extraordinary circumstances but an ordinary case such as the present, where the reduction was from 66% to below 50%, was a clear case for the application of the rule: Ough v King (1967) 204 EG 251 applied; Carr-Saunders v Dick McNeil Associates [1986] 2 EGLR 181; (1986) 279 EG 1359 and Midtown Ltd v City of London Real Property Co Ltd [2005] EWHC 33 (Ch); [2005] 14 EG 130 considered. In the present case, the infringement was to the light entering a living room of regular shape and size. Prior to the development, the room had enjoyed adequate light to 65% or 67% of its floor space, reduced to 42% or 45% after the development. This was significantly less than the conventional minimum. Therefore, on a statistical basis, an actionable nuisance had been committed. However, the right course in this case was to substitute an injunction with damages. The injury to the claimant’s legal rights was small and could be estimated in money and adequately compensated for by a small money payment (although the court had not yet been asked to assess damages). Furthermore, it would be oppressive to the defendant to grant an injunction: Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 and Wrotham Park Estate Co Ltd v Parkside Homes Ltd (1973) 229 EG 617 considered. Stephen Bickford-Smith (instructed by Child & Child) appeared for the claimant; Andrew Francis (instructed by Dawsons & Co) appeared for the defendants. Eileen O’Grady, barrister