The claimant and the defendant were property companies. The claimant owned an unoccupied office building (the dominant land) and the defendant owned an adjoining development site (the servient land). As part of the redevelopment, the defendant demolished a single-storey flat roofed building and erected a t-shaped three-storey building with a pitched roof. The claimant complained that the development interfered with the light to certain windows in its building.
Four windows faced the development, each at ground-floor level: two were entrance lobby windows and two were basement staircase windows. The claimant applied for an injunction requiring the defendant to demolish a considerable part of the new structure.
It was not in issue that the claimant could rely upon the right to receive light through the two basement staircase windows. However, the position of the entrance lobby windows was different since, throughout the relevant 20-year prescription period, they had been blocked by internal panelling that formed part of the design of the entrance lobby. Accordingly, no light had entered through those windows. The question was whether the blockage prevented the acquisition of a right to light through the windows on behalf of the claimant’s building.
The questions for the court were: (i) whether the claimant’s building had a right to light through the four windows; (ii) if so, whether there had been, or would be, an actionable infringement of that right arising from the development in respect of any one or more of the four windows; and (iii) if so, what was the appropriate remedy.
Held: The application was dismissed.
(1) The dominant land had not acquired right to light in respect of the entrance lobby windows. The boarding-up of those windows throughout the prescriptive period meant that they had never enjoyed access to light for the purposes of section 3 of the Prescription Act 1832, which had to be complied with before a right to light could be acquired. The “internal arrangement rule”, whereby the extent of the property right was not restricted by the particular internal arrangement of the building when the right to light was acquired, related to the width of the right and not to the question of whether it had been acquired at all: Smith v Baxter [1900] 2 Ch 138 and Price v Hilditch [1930] Ch 500 considered; Cooper v Straker (1889) LR 40 Ch D 21 distinguished.
(2) With regard to the staircase windows, there had been a significant interference with the use and enjoyment of the stairs since the moderate amount of natural light allowed in by the previous adjoining structure had been redistributed and reduced in such a way as to make it more difficult to use the stairs safely, if only natural light were considered: Colls v Home & Colonial Stores Ltd [1904] AC 179 and Sheffield Masonic Hall Co Ltd v Sheffield Corporation [1932] 2 Ch 17 considered.
(3) However, the injury to the claimant’s legal right to light to the staircase was small, was capable of being estimated in monetary terms and could be compensated adequately by a small money payment. It would be oppressive to the defendant to grant a mandatory injunction that would cause loss to the defendant out of all conceivable proportion to any loss that the claimant might suffer. Accordingly, it was appropriate to grant damages (to be assessed) in substitution for an injunction: Jaggard v Sawyer [1995] 1 EGLR 146; [1995] 13 EG 132 considered; Shelfer v City of London Electric Lighting Co Ltd (No 1) [1895] 1 Ch 287 applied.
Mark Wonnacott (instructed by Ashfords, of Exeter) appeared for the claimant; Philomena Harrison (instructed by Davenport Lyons) appeared for the defendant.
Eileen O’Grady, barrister
