Rights to light — Actionability — Blocked windows — Windows boarded up on inside — No light to room for 20-year prescriptive period — Whether right to light through windows — Whether obstruction of light to exterior of windows actionable — Remedies — Mandatory injunction — Application of rule in Shelfer v City of London Electric Lighting Co Ltd (No 1) [1895] 1 Ch 287 — Whether award of damages or mandatory injunction
The claimant owned an office building (the Olsen building); the defendant owned an adjoining property (the servient land). The defendant redeveloped the servient land by demolishing a single-storey flat-roofed building and replacing it with a T-shaped three-storey building with a pitched roof. The claimant contended that the new building on the servient land interfered with rights to light to four windows in the Olsen building. Two were entrance lobby windows and two were basement staircase windows. Although the two entrance lobby windows had been blocked on the inside by panelling, and the entrance lobby had not received light throughout the relevant 20-year prescription period, that obstruction could not be seen from outside; externally, the two windows looked like ordinary windows. The two basement windows illuminated a stairwell. The claimant, which did not at any stage seek an interlocutory injunction to restrain the new building from being erected, sought an injunction at trial that would have required the removal of a substantial part of that building. The defendant denied that there were any rights to light to the two entrance lobby windows, or that the new building on the servient land amounted to a sufficient interference with rights to light to constitute an actionable nuisance.
Held: The interference with light to the two basement windows was an actionable nuisance. The boarding-up of the inside of the two entrance lobby windows throughout the 20-year prescriptive period ending with the issue of the proceedings, meant that no right to light had been acquired to these windows: Smith v Baxter [1900] 2 Ch 138 applied. An actionable nuisance had taken place by the obstruction of the rights to light to the two basement windows. The moderate amount of light allowed in by the old structure on the servient land had been redistributed and reduced in the key area of the treads to the stairs in the basement by the new building; that was a significant interference with the use and enjoyment of the stairs. Damages were awarded but not the grant of a mandatory injunction. It would not be just and equitable to grant an injunction. Applying the rule in Shelfer, the injury was small and could be estimated in, and compensated by, a monetary payment, and the grant of a mandatory injunction would have been oppressive.
The following cases are referred to in this report.
Back v Stacey (1826) 2 C&P 465
Black v Scottish Temperance Assurance Co [1908] 1 IR 541
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
Colls v Home & Colonial Stores Ltd [1904] AC 179, HL
Cooper v Straker (1889) LR 40 Ch D 21, Ch
Fishenden v Higgs & Hill (1935) 153 LT 128
Isenberg v East India House Estate Co Ltd (1863) 3 De GJ&Sm 263
Jaggard v Sawyer [1995] 1 WLR 269; [1995] 2 All ER 189; [1995] 1 EGLR 146; [1995] 13 EG 132, CA
Midtown Ltd v City of London Real Property Co Ltd; Joseph v City of London Real Property Co Ltd [2005] EWHC 33 (Ch); [2005] 1 EGLR 65; [2005] 14 EG 130; [2005] JPL 1220
Oxy Electric Ltd v Zainuddin [1991] 1 WLR 115; [1990] 2 All ER 902; [1990] 3 PLR 115
Price v Hilditch [1930] 1 Ch 500
Sheffield Masonic Hall Co Ltd v Sheffield Corporation [1932] 2 Ch 17, Ch
Shelfer v City of London Electric Lighting Co Ltd (No 1); Meux’s Brewery Co v City of London Electric Lighting Co [1895] 1 Ch 287, CA
Smith v Baxter [1900] 2 Ch 138, Ch
Snell & Prideaux Ltd v Dutton Mirrors Ltd [1995] 1 EGLR 259
This was a trial of a claim by the claimant, Tamares (Vincent Square) Ltd, in nuisance for interference with a right to light against the defendant, Fairpoint Properties (Vincent Square) Ltd.
Mark Wonnacott (instructed by Ashfords, of Exeter) appeared for the claimant; Philomena Harrison (instructed by Davenport Lyons) represented the defendant.
Giving judgment, Mr Gabriel Moss QC said
Introduction
[1] This is a dispute regarding rights to light between two property companies.
[2] The claimant owns the “dominant tenement”, in the technical language used in easement cases, which I will refer to as the “dominant land”, an office building not currently in use, known as the “Olsen” building after a previous owner, at 64/65 Vincent Square, Westminster.
[3] The defendant owns the servient land (technically, the “servient tenement”), an adjoining development site. That site was formerly Rochester Row Magistrates’ Court and police station. As part of the redevelopment, the defendant knocked down a single-storey flat-roofed building and put up a T-shaped three-storey building with a pitched roof. It is this development that the claimant says will interfere with the light to certain windows in the Olsen building.
[4] There are four relevant windows facing the development, each at ground-floor level. Although, in principle, each window should be looked at separately, much of the evidence and discussion has, for convenience, grouped them into two groups of two windows each. The two groups are respectively the entrance lobby windows and the basement staircase windows.
[5] The parties agree that there are three sets of issues to be decided at this trial: |page:88|
(i) Does the Olsen building have a right to light through each of the four windows?
(ii) If so, has there been, or will there be, an actionable infringement of that right arising from the development in respect of any one or more of the four windows?
(iii) If so, what is the appropriate remedy?
Issue (i): Have rights to light been established in respect of the entrance lobby windows?
[6] Although no admission has been made in respect of the basement staircase windows, there is no real issue that the claimant can rely upon a right for the Olsen building to receive light through those two windows. The nature of that right to light and further questions will be dealt with below.
[7] The position of the entrance lobby windows is, however, very different. The claimant accepts that I must assume that throughout the relevant 20-year prescription period these windows have been completely blocked on the inside by means of panelling that forms part of the design of the entrance lobby. It follows that, throughout the 20-year period, the entrance lobby has received no light through these windows. At the invitation of the claimant and without objection from the defendant, I visited the site with counsel and others and saw for myself that the panelling has a solid appearance, and it is impossible to tell from the inside of the Olsen building that there are two windows behind the panelling. During the site visit, I also looked at the windows from the outside. Whether because of the type of glass or the nature of the lighting or because of the nature of the internal obstruction, I could not see from the outside anything of the obstruction on the inside. I could not, in fact, see anything on the inside of the Olsen building from the outside, looking through these two windows.
[8] The question that arises is whether such a blockage of the windows from the inside for the entirety of the prescription period prevents a right to light through those windows being acquired on behalf of the Olsen building.
Smith v Baxter
[9] The defendant relied upon Smith v Baxter [1900] 2 Ch 138, a decision of Sterling J. Focusing only upon the material parts of the facts of that case, parts of the relevant windows were near printing machines at which printers worked with their backs to the light “and it was found that accidents repeatedly occurred by which these portions of the windows were broken”: see p140. Those portions were therefore blocked off. With regard to another window, around one-half of the area of the window had been covered by open shelving used for drying printing work. The shelves were from 3in to 1ft apart and projected by around 2ft and caused “a material interference with light, though a substantial quantity of light still passed into the plaintiffs building”.
[10] There was some debate between counsel before me as to whether, in Smith, the boarding of those parts of the windows that were repeatedly broken was on the inside or the outside, but it seems to me that, as a matter of common sense, the boarding must have been on the inside, that being the clear inference from the stated rationale that the boarding took place to prevent the windows (that is, the panes) from being broken. Boarding from the outside would not have prevented the window panes from being broken (or at least it was unlikely to have prevented it), and the possibility that the boarding was on the outside combined with the removal of the panes, although possible, seems a less probable inference than the more obvious one of boarding from the inside. I was informed that no question of a “window tax” would have arisen. (In fact, I believe that it was abolished in 1851.)
[11] Sterling J held that since the boarding of parts of certain windows “absolutely excluded the light that arrived at those portions of the windows”, there was no “user of the light actually enjoyed for the prescriptive period”. By contrast, “the shelving did not entirely exclude the light, but allowed a substantial portion of it to pass” and, as a result, “a sufficient case” for a right to light was made out with regard to that window.
[12] On the basis of Smith, therefore, it would appear that the complete boarding in the present case of the windows in the reception area throughout the entire prescriptive period, even though it was on the inside, means that no right to light was acquired. However, Mr Mark Wonnacott, for the claimant, suggested that the position that one might have derived from Smith was altered by subsequent case law, which made it clear that the internal arrangement of the dominant land was irrelevant, and he submitted that it was sufficient that light entered the dominant land through the relevant windows and illuminated the back of the boarding put in place, excluding the light from the reception area.
[13] It is true that subsequent cases such as Price v Hilditch [1930] 1 Ch 500 (the “scullery” case) show that the use to which an internal room or space is put does not restrict the width of the easement acquired. Thus, in that case, although the light that remained after the new obstruction may have been sufficient for the use of the room as a scullery, the prior use as a scullery had not restricted the width of the right to light obtained by the dominant land. This approach can, for convenience, be called the “internal arrangement rule”, namely that the extent of the property right by way of easement that is acquired is not restricted by the particular internal arrangement of the building at the time the right to light is acquired.
[14] It seems to me, however, that the internal arrangement rule relates to the width of the right acquired and not to the question of whether it is acquired at all. Acquisition of the right in the first place requires in the present case compliance with section 3 of the Prescription Act 1832 (the 1832 Act), which in turn requires that the “access and use of light to and for any dwelling house… shall have been actually enjoyed therewith…”. This strikes me as being a completely separate and anterior question, which has to be answered before one can consider the width of the right acquired. For the purposes of the anterior question, what matters is whether the access to light is “actually enjoyed” within the statute.
[15] In this context, the word “enjoyed” plainly does not refer to taking delight or pleasure. Sterling J in Smith, at p144, stated:
I take “enjoyed” to mean “having had the amenity or advantage of using” the access of light; that is nearly equivalent to “having had the use”, the intention being that the owner of a house may acquire the right to have the access of light over adjoining land to an opening which he has used in such manner as suited his convenience for the passage of light during twenty years.
This passage is itself part of a quote from the judgment of Kay J in Cooper v Straker (1889) LR 40 Ch D 21. A further passage in that case, even more relevant to the facts of the present case, deals, at p145, with the non-acquisition of rights to light:
in the case of “windows with iron shutters fixed behind them,”… the essential word in that sentence is “fixed,” which obviously means either shutters that will not open, or shutters that are never, in fact, opened during the twenty years.
(Emphasis added.)
That passage seems to be exactly in point: the partition that entirely blocks the windows in the present case “will not open” and was “never, in fact, opened during the twenty years”.
Even in the absence of authority, were one to ask oneself the question of whether the dominant land in this case enjoyed the amenity or advantage of using the access of light through the two relevant windows, the answer seems to be clear: it did not. The dominant land could have used the access of light for any purpose that suited its convenience “for the passage of light”, but, in reality, did not use it at all.
I cannot accept Mr Wonnacott’s suggestion on behalf of the claimant that the light was used to illuminate the back of the wooden blockage erected to stop the light getting in. I do not consider this notion of “use” to be meaningful in this context. Where boarding is used to block the entrance of light into the building, it does not seem to be a meaningful use of words to describe the light as illuminating the rear side of the blockage. That is not the kind of “actual enjoyment” that section 3 of the 1832 Act appears to have had in mind.
[16] My conclusion, therefore, on the first issue is that the dominant land has not acquired any right to light in respect of the entrance lobby windows. However, in case the matter goes further, I will also set out |page:89| my views on the remaining issues in respect of these windows on the basis of the hypothesis that a right to light was acquired.
Issue (2): Is the new building on the servient land a sufficient interference with rights to light to be an actionable nuisance?
Legal principles
[17] In the House of Lords case of Colls v Home & Colonial Stores Ltd [1904] AC 179, Lord Macnaghten, at p187, approved as the test the jury direction of Best CJ in Back v Stacey (1826) 2 C&P 465:
Chief Justice Best told the jury, who had viewed the premises, that they were to judge rather from their own ocular observation than from the testimony of any witnesses, however respectable, of the degree of diminution which the plaintiff’s ancient lights had undergone. It was not sufficient to constitute an illegal obstruction, that the plaintiff had, in fact, less light than before; nor that his warehouse, the part of his house principally affected, could not be used for all the purposes to which it might otherwise have been applied. In order to give a right of action and sustain the issue, there must be a substantial privation of light, sufficient to render the occupation of the house uncomfortable, and to prevent the plaintiff from carrying on his accustomed business (that of a grocer) on the premises as beneficially as he had formally done. His Lordship added that it might be difficult to draw the line, but the jury must distinguish between a partial inconvenience and a real injury to the plaintiff in the enjoyment of the premises.
[18] In the present case, I have to fulfil the role of both judge and jury. I have been to the site with counsel, solicitors and the parties but the inspection cannot, by itself, give rise to a satisfactory answer to the question. First of all, the old building was gone and I was not able to see the amount of light available when it was still there. Second, in relation to the new building, although the structure is largely built, it is surrounded by scaffolding and, therefore, there may be a greater obstruction of the light than will be the case when it is finished. The claimant has called no factual witnesses to support its case. It can currently suffer no inconvenience because the dominant land is currently unused. I have to rely, therefore, to a large extent upon expert evidence. That itself has various problems, including the fact that the true role of the experts must be to do with scientific matters such as the nature of the access of light and not with judgments distinguishing between a partial inconvenience and a real injury, which are part of my jury function.
[19] Before I turn to examine the evidence in detail, I need to direct myself as to certain further key points of legal principle. I have to bear in mind the internal arrangement rule mentioned above. I have to deal with the Sheffield Masonic Hall principle, to which I will refer below. I will have to consider the correct position in relation to artificial lighting. I have to bear in mind “that no actionable wrong is committed if the amount of light remaining is sufficient for the comfortable enjoyment of his property by the dominant owner according to the ordinary notions of mankind.”: see Millett J in Carr-Saunders v Dick McNeil Associates Ltd [1986] 1 WLR 922*, at p928. I have to bear in mind the underlying policy of the need adequately to protect the rights to light, on the one hand, and freedom from unnecessary burdens, on the other: see Lord Lindley in Colls, at p213.
—————————————————————————
* Editor’s note: Also reported at [1986] 2 EGLR 181
—————————————————————————
[20] Lord Lindley (at the same place) also refers to “elements of uncertainty which render it impossible to lay down any definite rule applicable to all cases. First, there is the uncertainty as to what amount of obstruction constitutes an actionable nuisance… the good sense of Judges and juries may be relied upon for adequately protecting rights to light on the one hand and freedom from unnecessary burdens on the other. There must be consideration for both sides in all these controversies.”
Evidence
[21] I have the benefit of experts’ reports from both parties. The claimant’s expert report produced by Ms Delva Patman is very concise and apparently had to be compiled in something of a hurry. She told me that she would have liked to have carried out her own technical analysis, but apparently was never requested to do so. She had to base herself on drawings by previous experts, which she did not find entirely accurate but thought that they were sufficiently indicative. She would have wanted to revise the results on the basis of her own technical analysis. She agreed in cross-examination that the defendant’s drawings were agreed to be accurate.
[22] The claimant’s expert accepted that there was no “rights to light injury” in relation to the first- to fourth-floor levels because of the light coming from the square.
[23] With regard to the reception area windows, her evidence was rather obscure and, during cross-examination, she accepted that there was no right to light injury on the basis of the current room configuration. I will have to consider below submissions in relation to different potential configurations.
[24] With regard to the two windows that illuminate the staircase to the basement, the claimant’s expert stated very briefly that “the staircase area goes from a relatively well lit space to a poorly lit space”. This is not a very satisfactory conclusion, since it makes a judgment that is really in my province, as part of my jury function. Nor do I find it to be accurate, since, on the basis of the drawings, as explained to me by the experts, and on the basis of the oral evidence, I prefer the view of the defendant’s expert, Mr Lance Harris, based upon his careful and thorough work and exposition of the situation, that “in the original condition the staircase was no more than moderately lit with quite limited natural light available in part”.
[25] The two relevant windows illuminate two landings and some stair treads. On the basis of Mr Harris’s drawings, with which Ms Patman agreed, I cannot accept that the stairs to the basement were, at any material time, “well lit” by natural light, since a lot of such light was blocked by the old building. There certainly was some natural light left but, as Mr Harris pointed out, “it is entirely possible that other than on quite bright days it might have been advisable to employ artificial lighting when using the stairs”.
[26] Mr Harris’s evidence is that the change caused by the new building actually produces considerably more light on the “half landing”, but considerably less light on the treads and a little less light on the ground-floor landing.
[27] Mr Harris concluded that “if it were safe and appropriate to use the staircase without the benefit of artificial lighting in the original condition, the same would still be true in the proposed condition”. By contrast, Ms Patman took the view that making the landings lighter and the treads darker actually produced a more dangerous situation: she was able to say, not as an expert but from her own experience, that walking down such stairs is dangerous, since she has had an accident in that type of situation as a result of the contrast between light and dark.
[28] On the basis that the experts are there to deal with the technical questions relating to the amount of light and where it falls, and applying my judgment to this very question as a matter of fact and common sense, it seems to me that the shift of the light from the treads to the landing has probably made matters worse and has done so to a material extent if the use of electric light is ignored. On the basis that I must decide whether what has happened is merely a “partial inconvenience” or a “real injury” to the claimant in the enjoyment of the premises, I would, after some hesitation, come down on the side of “real injury”, if artificial lighting is left out of account.
[29] It seems to me that the moderate amount of natural light allowed in by the old adjoining structure has been redistributed and reduced in the key area of the treads by the new building in such a way as to make it more difficult to use the stairs safely, if only natural light is considered. In my judgment, that is a significant interference with the use and enjoyment of the stairs.
[30] In coming to a conclusion on this, it seems that I have to ignore the fact that, in a relatively modern office block, the artificial lights might well be on the whole time: Midtown Ltd v City of London Real |page:90| Property Co Ltd [2005] EWHC 33 (Ch)*, in [55] to [64], but I can bear that in mind on the question of remedy.
—————————————————————————
* Editor’s note@ Reported at [2005] 1 EGLR 65
—————————————————————————
[31] Although I am aware that, strictly speaking, I should look at each window on its own, the evidence is not presented in a way that would enable me to do so and I must do my best by looking at the two windows together and then assuming that what is true in relation to both is true in relation to each.
[32] I must also emphasise that I have come down on the side of “real injury” in the context of these two windows and on the basis of the rather artificial test that I am required to apply: in the context of the entire building and the real-world situation in which the stairs should probably, for safety reasons, be properly lit by electric light at all times, the complaint is a trivial one that one would expect reasonable people to settle without litigation.
[33] In view of my conclusion in relation to the existing use of the internal space illuminated by the staircase windows, it has not been necessary for me to consider the effect of the diminution of light on alternative reasonable uses. The claimant’s expert report does not deal with these and I do not accept that Ms Patman’s speculations about this during cross-examination would be a satisfactory basis for a finding based upon alternative uses. The claimant called no factual evidence on this (or any other) point. Accordingly, if there were no nuisance based upon the present arrangement, I would not feel able to find one on the basis of any alternative reasonable user.
[34] I need now to return to the two windows boarded in the entrance lobby in case I am wrong in my conclusion that no right to light was acquired. The starting point here is that the claimant’s own expert witness accepts, as a result of cross-examination, that there is no injury to light given the very substantial amounts of light streaming in from the square by alternate means, as long as only the present arrangement is looked at.
[35] Mr Wonnacott, however, pressed hypotheses of alternative arrangements in which he says serious injury is caused.
[36] I need to stress right away that the suggestions are highly speculative. The building is currently an unused office building, plainly designed and built as an office building. The claimant has been refused planning permission to convert the office block into residential accommodation. It is appealing that refusal, but the current position is that it has no planning permission for what it proposes. In these circumstances, and without any proper evidence of likely alternative user, I find the question of other reasonable uses and the light that may be required for it a difficult one.
[37] However, Mr Wonnacott, for the claimant, submitted that the test is one of expected reasonable user as viewed from the outside of the building and is therefore an objective matter. I agree that alternative reasonable user must be an objective matter, but the claimant has not produced any satisfactory evidence upon which a safe judgment could be made. Speculation by counsel based upon old drawings is not an adequate substitute for such evidence. For reasonable alternative user to be made out, it should be established by credible evidence.
[38] Mr Harris, in his expert’s report for the defendant, considers other possible reasonable arrangements. Although he is not an expert architect or builder, he is an experienced surveyor and qualified as a member of the building surveying division of the RICS in 1988. I find his evidence more valuable than mere speculation based upon drawings. He concludes that “although in theory it would be possible to divide up the building on a different basis internally, it is my opinion that any arrangement that would create a technically actionable loss would be neither realistic nor practical in the circumstances”.
[39] The question of what is or is not “actionable loss” is of course a question for me and not for the expert and it would be better if, in the future, experts in this area avoided such terminology. However, what the expert for the defendant is saying here in substance is that on no other realistic arrangement would the interference with light be substantial.
[40] One of Mr Wonnacott’s suggestions was based upon some drawings put in during the trial itself and not dealt with by the claimant’s own expert. These drawings were prepared for a previous owner of the dominant land and are marked “initial feasibility study… 17 July 1992”. They show a potential bathroom at a higher level with a window facing out in the same direction as one of the ground-floor blocked-off windows in the reception area. On the basis of this drawing, Mr Wonnacott suggested that a potential reasonable user at ground-floor level would be a bathroom of a similar nature.
[41] Ms Harrison, for the defendant, objected to the bathroom theory on the basis that if one leaves the lift and stairs where they are, that being the most convenient way of developing the building, it is probable that the entrance will be near the lift and stairs and therefore very unlikely that such a conversion would take place at ground-floor level. I agree with Ms Harrison and, in addition to my view that the speculations on behalf of the claimant are not satisfactory without proper evidence, hold that the ground-floor bathroom conversion is not a reasonably predictable use.
[42] The claimant does apparently have permission to demolish and rebuild, and could therefore rebuild with the stairs and lift in a different place, but, at this stage, this is wholly speculative. The claimant has adduced no evidence that this is a realistic possibility. Moreover, it would also depend upon the hypothetical bathroom on the ground floor of the rebuilt building being placed in such a way that it has a window so located that it could enjoy the right to light I am assuming to exist. Again, this is pure speculation unsupported by any satisfactory evidence.
[43] Mr Wonnacott also suggested that a partition could be placed between the two windows at the front. He suggested that there would then be a substantial loss of light to the room created behind the partition, because it would not benefit from light from the square. The bathroom theory, I suppose, is one particular example of the partitioning approach. The partitioning theory, in my view, fares no better than the bathroom theory, for the reasons that I have already set out.
[44] In my judgment, Mr Wonnacott’s speculations do not accord with anything that can objectively be deduced from the outside of the building and lack any proper evidential basis.
[45] I would conclude, therefore, subject to consideration of the Sheffield Masonic Hall principle, that there is no nuisance in relation to the entrance hall windows, even if I were wrong in my conclusion on issue (i).
Sheffield Masonic Hall Co Ltd v Sheffield Corporation [1932] 2 Ch 17
[46] The principle in this case appears from the following statement in the judgment of Maughan J, at p22:
At the moment when the right is acquired by the plaintiff company in respect of both of the two windows on the north and the two windows on the east, I think that the nature of the restrictive obligation imposed upon people facing those two windows is that they will not so build as by their joint action to cause a nuisance to the plaintiff company within the meaning of that term as used by the House of Lords in Colls v Home & Colonial Stores… in other words, I think that the proper view is that the owner of Blackacre can build to such height as, with a similar building by the owner of Whiteacre, will yet leave sufficient light for the Masonic Hall. The obligations of both owners are the same; neither has a greater obligation than the other in the simple case which I am considering.
[47] Mr Wonnacott suggested, on the basis of this, that I have to assume that a building similar to that being built by the defendant is placed on the square in front of the dominant land, and that I should take into account the loss of light from that direction since it would severely affect the light coming into the dominant property. In fact, the defendant’s expert has performed such an exercise, placing the second building on the square facing the dominant land, and has found that it makes no material difference to the light coming into the relevant parts of the dominant land.
[48] But Mr Wonnacott objected to the way in which the exercise has been done by the defendant’s expert. He said that because this is a purely hypothetical exercise, the other building should have been placed, |page:91| in the expert’s drawing, not on the other side of the road and on the Westminster School playing fields in the square itself, but at the point half-way across the street from those fields towards the Olsen building, since the presumption is that the adjoining landowner’s land goes to the middle line of the street between the square and the dominant land.
[49] I am afraid that I find this mode of applying the Sheffield Masonic principle rather far-fetched. At p23 of his judgment, Maughan J says:
… I see no reason to suppose that at some not distant date the owners of those premises will not desire to erect a substantial building right up to the corner of the building line.
[50] In other words, Maughan J was dealing with a realistic possibility in the near future. In the present case, there seems to be no reasonable prospect, for the foreseeable future, that the square, currently used as the playing fields of Westminster School, will either want to apply for, or will receive planning permission for, a building of the type being erected by the defendant on the site of its playing fields. It is even less conceivable that such a building could, in the foreseeable future, be placed where the middle of the road now stands rather than on the playing fields in the square itself. It seems to me that were I to take notice of such far-fetched and utterly remote possibilities, that would impose a wholly unreasonable burden upon the defendant.
[51] On the basis of the very remote possibility that the square could ever be built upon, the defendant’s expert has demonstrated that no injury to light would take place in relation to the two relevant windows, namely the ones boarded in the entrance hall. No question of injury to the remaining two windows arises at all in this context. I simply cannot see that it would be right to take account, in the present case, of a further even more remote hypothesis piled on top of the previous one to the effect that the road will cease to be used as such and can be built upon up to the half-way line. Even if I had been prepared to contemplate that, I would have had to add a third remote possibility that the owner of the playing fields would want to build up to that line when, presumably, on the basis of the previous hypotheses, the owner of the Olsen building could also build up to the same line, so there would potentially be no space, light or air between the buildings.
[52] Even if I were wrong in my approach to the Sheffield Masonic principle, the only evidence of the effect of a building constructed in the middle of the road and similar to the defendant’s building that I have is some evidence in the cross-examination of Mr Harris, in which he accepted that such a building would have an effect upon the front window of the dominant land that illuminates the entrance area. This is hardly sufficient for a finding of nuisance. Without proper evidence and calculations as to the loss of light in such a situation, I could not make a satisfactory finding in any event, even if I had accepted Mr Wonnacott’s submissions as to where the hypothetical building would be.
[53] Accordingly, my conclusion on this part of the case is that even if I had found that there was a right to light in respect of the two windows blocked up in the entrance hall, the claimant has not made out any actionable injury to such supposed right. Again, however, when it comes to considering remedies, I will consider the matter not only in relation to the two windows illuminating the staircase to the basement, but also the two windows blocked off in the entrance hall, in case my conclusions so far have been wrong.
Issue (3): Remedies
[54] The claimant seeks an injunction in respect of all four windows in contention, which would result in the demolition of a considerable part of the defendant’s structure. The claimant did not at any stage seek an interlocutory injunction to prevent the structure from going up and I will have to deal with the arguments relating to that in due course. A number of cases were cited on the correct approach to the grant of a final injunction in such a case. However, even cases of the highest authority set out only the judicial principles that have to guide the exercise of my discretion. The particular decision in any other case, of whatever authority and level, is not directly binding upon me unless it is on identical, or at least indistinguishable, facts.
Shelfer rule
[55] In Shelfer v City of London Electric Lighting Co Ltd (No 1) [1895] 1 Ch 287, at p322, AL Smith LJ set out what he described as a “good working rule”:
(1.) If the injury to the plaintiff’s legal right is small,
(2.) And is one which is capable of being estimated in money,
(3.) And is one which can be adequately compensated by a small money payment,
(4.) And the case is one in which it would be oppressive to the Defendant to grant an injunction: —
then damages in substitution for an injunction may be given.
[56] Although this “good working rule” has been referred to in subsequent cases, as Romer LJ pointed out in Fishenden v Higgs & Hill (1935) 153 LT 128, at p141, AL Smith LJ “could not have intended to have fettered the discretion imposed upon the courts by Lord Cairns’ Act”. Romer LJ at the same reference further stated:
It is plain, therefore that in every case, even though the four conditions laid down by AL Smith LJ are not to be found, the court has, having regard to all the circumstances of the case, an exercise of its discretion in the matter.
[57] In fact, I consider that all the Shelfer conditions are met in the present case. The injury that I have found in relation to the staircase windows is small. If there were any right to light and any injury in relation to the lobby windows, it has not been established that the injury would be more than small. The injury, both that established and that assumed, is in each case capable of being estimated in money. It can, in each case, as a matter of common sense, be adequately compensated by a small money payment. I am not impressed by the argument that since the question of damages has been put off at the suggestion of the defendant, it has prevented itself from establishing this point, since it seems to me an obvious one in the circumstances of the case. For detailed reasons that I set out below, I also consider that it would be oppressive to the defendant to grant the claimant an injunction.
Jaggard v Sawyer
[58] Since the claimant suffers no harm from the reduction of light to the four windows in respect of which it claims, and since it did not apply for an interlocutory injunction, its demand for a mandatory injunction to demolish a significant part of the defendant’s structure brought to mind the phrase “deliver him to the Plaintiff bound hand and foot be subjected to any extortionate demands the Plaintiff might make”. I asked counsel to find the case where this phrase occurred and to cite it if it were of any relevance. Counsel discovered and cited the case of Jaggard v Sawyer [1995] 1 WLR 269*, a decision of the Court of Appeal. Although the case itself deals with a claim to breach of covenant and trespass, the judgment of Millett LJ also touches upon rights to light.
—————————————————————————
* Editor’s note: Also reported at [1995] 1 EGLR 146
—————————————————————————
[59] Some very important matters of principle can be seen from Millett LJ’s illuminating judgment:
(i) damages in substitution for an injunction relate to the future, not the past. They inevitably extend beyond the damages to which the claimant may be entitled at law: see p284B-F;
(ii) the nature of the cause of action is immaterial. “The jurisdiction to award damages in substitution for injunction has most commonly been exercised in cases where the defendant’s building has infringed the plaintiff’s right to light…”;
(iii) the question of whether to grant an injunction or award damages instead is decided “by reference to the circumstances as they exist at the date of the hearing” : see pp284H-285A;
(iv) “It has always been recognised that the practical consequence of withholding injunctive relief is to authorise the continuance of an unlawful state of affairs. If, for example, the defendant threatens to build in such a way that the plaintiff’s light will be obstructed and he is not |page:92| restrained, then the plaintiff will inevitably be deprived of his legal right.” This results not from the award of damages, but from the refusal of the injunction: see p286B-H;
(v) a claimant that has established both a legal right and a threat to infringe it is prima facie entitled to an injunction to protect it; “special circumstances were needed to justify withholding the injunction”: see p287B;
(vi) nevertheless, the grant of an injunction, like all equitable remedies, is discretionary. Many proprietary rights cannot be protected at all by the common law and the owner must submit to unlawful interference with its rights and be content with damages. “If he wants to be protected, he must seek equitable relief, and he has no absolute right to that. In many cases, it is true, an injunction will be granted almost as of course; but this is not always the case, and it will never be granted if this would cause injustice to the defendant”: see p287C;
(vii) the danger of misappropriating the claimant’s property rights needs to be balanced by the danger that a mandatory injunction would “deliver over the defendants to the plaintiffs bound hand and foot, in order to be made subject to any extortionate demand that he may, by possibility, make…”. The “bound hand and foot” expression is taken by Millett LJ from Lord Westbury LC in Isenberg v East India House Estate Co Ltd (1863) 3 De GJ&Sm 263, at p273: see p287C-E;
(viii) AL Smith LJ’s “good working rule” is a “check-list” that “has stood the test of time; but it needs to be remembered that it is only a working rule and does not purport to be an exhausting statement of the circumstances in which damages may be awarded instead of an injunction”: see p287G-H;
(ix) “Reported cases are merely illustrations in circumstances in which particular judges have exercised their discretion, in some cases by granting an injunction, and in others by awarding damages instead. Since they are all cases on the exercise for discretion, none of them is a binding authority on how the discretion should be exercised. The most that any of them can demonstrate is that in similar circumstances it would not be wrong to exercise a discretion in the same way. It does not follow that it would be wrong to exercise it differently.”: see p288A-B;
(x) “The outcome of any particular case” usually turns on the question: would it in all the circumstances be oppressive to the defendant to grant the injunction to which the plaintiff is prima facie entitled? Most of the cases in which the injunction has been refused are cases where the plaintiff has sought a mandatory injunction to pull down a building which infringes his right to light or which has been built in breach of a restrictive covenant. In such cases the court is faced with a fait accompli. The jurisdiction to grant a mandatory injunction in those circumstances cannot be doubted, but to grant it would subject the defendant to a loss out of all proportion to that which would be suffered by the plaintiff if it were refused and would indeed deliver him to the plaintiff bound hand and foot to be subjected to any extortionate demands the plaintiff might make.”: see p288B-D;
(Emphasis added.)
(xi) “In considering whether the grant of an injunction would be oppressive to the defendant, all the circumstances of the case have to be considered. At one extreme, the defendant may have acted openly and in good faith and in ignorance of the plaintiffs’ right and thereby inadvertently placed himself in the position where the grant of an injunction would either force him to yield to the plaintiffs extortionate demands or expose him to substantial loss. At the other extreme, the defendant may have acted with his eyes open and in full knowledge that he was invading the plaintiffs’ rights, and carried on his work in the hope that by presenting the court with a fait accompli, he would compel the plaintiff to accept monetary compensation. Most cases, like the present, fall somewhere in between.”: see pp288H-289A.
[60] In Jaggard, the facts mentioned as being significant by Millett LJ for refusing an injunction and substituting damages included the fact that the defendants acted “openly and in good faith” and “in the not unreasonable belief that they were entitled…”. They had, however, had a warning and went ahead at their own risk. “On the other hand, the plaintiff did not seek interlocutory relief at a time when she would have almost certainly have obtained it. She should not be criticised for that, but it follows that she also took a risk, namely, that by the time her case came on for trial the court would be presented with a fait accompli.” In those circumstances, the case was described as “difficult”, but the trial judge could not be faulted for exercising his discretion in such a way that an injunction was refused and damages substituted.
Facts relevant to relief in this case
[61] In the light of the authorities and, in particular, the very helpful material set out in Millett LJ’s judgment in Jaggard, it seems to me the following factual circumstances are relevant in the present case:
(i) the claimant did not apply for an interlocutory injunction and, since the bulk of the structure is now complete, there is a fait accompli. I do not in any way blame the claimant for not applying for an interlocutory injunction, but, as Millett LJ pointed out, it does thereby run the risk of not getting injunctive relief at trial;
(ii) to make a mandatory injunction now would require substantial demolition, either in the case of a right to light to all the four windows, or even in the case of a right to light to the two basement stairs windows, and would amount to delivering the defendant bound hand and foot to the plaintiff and subjecting it to any extortionate demand that the plaintiff might make;
(iii) the injury to the right to light to the basement stairs, although sufficient to be a nuisance, is, in the whole context of the buildings and the reality of the use of artificial light in office buildings, trivial. With regard to the alleged right to light in respect of the entrance lobby windows, I have held that there is no such right; alternatively, if there is, there is no substantial injury to it and no nuisance. Even if I were wrong about that, it seems to me that the injury is likely to be of little significance in the real world in relation either to the present user or any reasonable contemplated user. Accordingly, a mandatory injunction requiring demolition of a substantial part of the defendant’s structure would be wholly out of proportion to the injury caused to the claimant on any possible view.
Conduct
(iv) in terms of the defendant’s conduct, I find that it has throughout acted honestly and has genuinely believed that the present development does not sufficiently diminish the claimant’s light to be an actionable nuisance:
(1) In the very early stages after the defendant purchased the development site, it was concerned about possible infringement of any right to light relating to the Olsen building.
(2) As a result, in June 2003, a right to light expert, a Mr Ian Absolon, was approached. He verbally advised that the scheme then under consideration would affect the light and suggested some angles that would limit any loss of light to a point where it was not actionable.
(3) The defendant wanted, if possible, to increase the height of the development, but recognised that were it to do so, it would require the agreement of the owner of the Olsen building.
(4) The defendant’s subjective view was that the existing development, which came to pass, did not infringe any right to light, but that the desired building of increased height would have done so.
(5) In February 2004, the defendant’s contractor began to demolish the existing buildings, although Mr Absolon continued to have discussions with the then adjoining owners’ right to light surveyor to see if an agreement could be reached to enable the defendant to build the higher building.
(6) The adjoining owners were looking for £100,000, whereas the defendant thought £20,000 would be more equitable in respect of the interference to light from the proposed higher building.
(7) Demolition of the previous buildings was completed by approximately May/June 2004.
(8) The defendant subsequently understood that the Olsen building had been sold and wanted to negotiate the position with the new owner. There is no doubt, however, that the defendant’s own frame of mind was that the scheme that would go forward without the adjoining owner’s consent did not infringe any rights to light, and this can be seen from the defendant’s board minutes. |page:93|
(9) The view was based upon the advice of Mr Absolon. No agreement was in fact reached in relation to a higher building and the original scheme was built and has now reached an advanced stage.
(10) Restoring the light previously enjoyed would require substantial demolition of the present structure.
(11) An account of the defendant’s subjective position was given by the witness, Mr Mansell, who was cross-examined. I found him to be truthful and credible and to have believed throughout that the present development did not infringe the claimant’s right to light.
(12) I find this belief to have been reasonable, since it is only on the basis of the defendant’s own expert evidence when combined with views given during cross-examination by the claimant’s expert that I have come to the view that there was any actionable infringement at all. A belief can have been reasonably held even if a judge subsequently disagrees with it.
(13) Moreover, in the context of the entire development and in the context of the entire Olsen building, the infringement is in relative and in real-world terms, trivial.
(14) The defendant also called Mr Absolon, whom I also found to be a completely credible witness. There is no doubt whatsoever that he believed that the present building scheme, as he understood it, did not constitute an actionable infringement. Not only that but, during his discussions with the right to light expert employed by the previous owner, they agreed that an appropriate payment by way of consolation would be £5,000-10,000 and even that, it seems, was on the table only in order to induce the then owner to give favourable consideration to the desired larger development.
(15) Mr Wonnacott, for the claimant, has pressed me with the view that Mr Absolon did not have the correct drawings of the actual development and that had he had them, he would have realised that there probably was an actionable interference. Even assuming that he is right about that, I have not the slightest doubt that both the defendant and Mr Absolon acted in good faith and on the basis of a genuine belief in the correctness of their position throughout.
(16) Thus, on the basis of Mr Absolon’s advice, whether or not the basis of it was mistaken, the defendant honestly and reasonably believed throughout that there was no actionable wrong.
(17) On the negative side, at a time when piling works, which lasted between 24 January 2005 and 16 May 2005, were incomplete, the defendant received a very important letter from the solicitor acting for the claimant dated 12 April 2005. This letter stated, inter alia: “In the circumstances and, as we are instructed that you have commenced piling works on the site, we requiring [sic] your unequivocal undertaking that your company will not carry out any further works pending agreement between our clients and yourselves regarding the light issues. In the event of this undertaking not being received in such terms by close of business on Friday 15 April 2005 our client will have no option but to take injunctive action against you. We look forward to receiving your undertaking by return together with dates for a meeting and a copy of the light model produced by your consultants.”
(18) It is very unfortunate that the reply dated 22 April 2005 does not appear to have been received, but there is good contemporaneous evidence that shows that the defendant genuinely believed that it had been sent. This letter referred to discussions with previous owners about possible rights to light. Mr Wonnacott, for the claimant, has criticised a particular passage as being incorrect: “As a result of these discussions [the defendant] reviewed the design of the development… and as such amended the design thus protecting against possible infringement on your client’s right to light”.
(19) Read literally, it seems to be saying that some existing design was specifically amended to protect against possible infringement of the right to light, whereas the important thing that actually happened was that it was decided not to proceed with the more ambitious development that would have breached the right to light.
(20) I have not heard any evidence from Mr Walton, the author of this letter, and cannot be sure how the mistake arose, but I cannot infer anything sinister from the inaccuracy. There is no credible evidence that the defendant was trying to mislead the claimant.
(21) What is, however, significant about the letter of 12 April 2005 is that the defendant, despite the threat in the letter of 12 April 2005, decided to proceed and thereby take a risk that its expert’s judgment may have been wrong. On the other hand, the defendant knew that the claimant’s predecessor’s expert had been willing to accept a nominal sum in respect of the present development and although the claimant in the letter of 12 April 2005 had threatened to apply for an injunction at a time when none of the superstructure had been built, it did not do so, and in fact did not start proceedings for some months. A reasonable inference by the defendant from that might have been that the claimant had no real belief in its own case.
(22) There was some argument about the fact that the defendant did not at that stage supply the plans of the development, despite being asked to do so, but it seems to be accepted that the plans were available over the internet since they had to be lodged with the local planning authority when planning permission was obtained.
(23) Mr Wonnacott argued that the development might differ from the design lodged, but there is no evidence in the present case that it did so or that the claimant was misled.
(24) Accordingly, it seems to me that the key features relating to conduct are the following. The defendant throughout believed, not unreasonably, that its development would not infringe any right to light. If I am correct in my other conclusions in this judgment, it was actually correct in that belief in relation to all potential windows affected by the development, save the two basement stairs windows, and even there it was perfectly reasonable for it to believe, prior to the evidence given at the trial, that no infringement had taken place. As against that, the defendant continued at its own risk after a warning from the claimant’s lawyers. Nevertheless, the claimant has suffered relatively trivial injury in the context of its building, did not apply for injunction at a time when it threatened to do so and could, in principle, have prevented the infringement altogether, but waited until a fait accompli had taken place, thereby taking a risk that it would not be granted an injunction.
Black v Scottish Temperance Assurance Co
[62] Out of deference to Mr Wonnacott’s forceful submissions on behalf of the claimant, I need to deal with the House of Lords case of Black v Scottish Temperance Assurance Co [1908] 1 IR 541. In that case, the defendant had been warned repeatedly by the plaintiff not to block his right to light. The defendant did not suggest for a moment that it would not be breaching the plaintiff’s rights, but simply pointed to an indemnity that it had from the vendor of the servient land. Accordingly, the facts revealed an outrageous and deliberate invasion of the plaintiff’s rights. It was in these circumstances that Lord Loreburn C stated that if it had been a question of discretion, he would “feel almost insuperable difficulty” in differing from the judges of the Irish Court of Appeal, but that the undisputed or undisputable facts of the case removed it from the realm of discretion: see p577. That case, therefore, was not really about the exercise of discretion, but about situations in which there is in effect no discretion to exercise at all. It is in that context that one has to consider Lord Loreburn’s statement, at pp577-578, about not applying for an interlocutory injunction:
He did not apply for an interim injunction, very sensibly, I think, because he would have been obliged to give an undertaking as to damages which might have proved ruinous if his case failed. He was not bound to stake his all, or indeed, anything, on the possibility of error or mischance at the trial. He was entitled to await the trial, especially as he was not the aggressor, and was merely resisting a high-handed claim to defy his lawful rights.
To my mind, all that shows is that if a defendant commits a flagrant and inexcusable wrong, with no belief in the rightness of its actions, the failure to apply for an interlocutory injunction cannot be a significant factor at the trial since, as Lord Loreburn pointed out, there is no real discretion in such a case. In my judgment, that says nothing about the significance of failing to apply for interlocutory injunction in cases where a real discretion exists, and, in particular, where the defendant has acted honestly and reasonably in the belief that it had a right to do what it did. In such a case, there is no “high-handed claim to defy [the claimant’s] lawful rights”. |page:94|
[63] Lord Robertson in Black, at p580, pointed out that that was not a case “in which the aggressor can excuse himself by a pardonable error”.
[64] I conclude therefore that Black does not compel me to grant an injunction. As I have already pointed out, that was not a case in which there was any scope on the facts for the exercise of a real discretion. There was no honest and reasonable belief held by the defendants as in the present case, but only a flagrant violation of the plaintiffs rights.
Oxy Electric Ltd v Zainuddin
[65] On the subject of the relevance of not applying for an interlocutory injunction, Mr Wonnacott, for the claimant, also relied upon the judgment of Hoffmann J (as he then was) in Oxy Electric Ltd v Zainuddin [1991] 1 WLR 115. The judgment related to a motion to strike out a claim for injunctive relief in respect of the enforcement of a restrictive covenant. I could not, myself, find any relevant statement of principle in the judgment. As Ms Harrison, for the defendant, pointed out, Hoffmann LJ (as he then was) explained in Snell & Prideaux Ltd v Dutton Mirrors Ltd [1995] 1 EGLR 259, at p265A, in relation to Oxy Electric:
That case goes no further than deciding that failure to apply for an interlocutory injunction is not a reason for striking out the action as frivolous and vexatious.
Conclusion in relation to remedies
[66] In the special circumstances of this case set out above, I consider that it would be “oppressive” to grant a mandatory injunction that would create loss to the defendant out of all conceivable proportion to any loss that might be suffered by the claimant. The grant of a mandatory injunction would be unjust and inequitable and, in the exercise of my discretion, I am not prepared to grant it. I am not asked to assess damages at this stage and that must be the subject of a separate enquiry.
[67] I would add that, even if I were to assume that I was wrong in relation to the reception area windows and in relation to the questions of nuisance in respect of those windows, I would still not grant a mandatory injunction for the demolition demanded by the claimant. The grant of such relief would still be oppressive in the special circumstances of this particular case for the reasons set out above.
Claim dismissed.
