The injunction granted in Regan v Paul Properties Ltd  required the partial demolition of a development in order to preserve rights of light. It is one of a short sequence of recent cases relating to rights of light, which have some lessons for developers and also for neighbouring occupiers.
NO LIGHT, NO RIGHT
Imagine a building with an entrance lobby, which has several windows; two of those windows are completely blocked on the inside by panelling, and have been so during the entire twenty-year period needed to acquire rights of light by prescription.
Have rights of light been acquired through those windows?
The answer is of course no.
S.3 of the Prescription Act 1832 requires that the access and use of light “shall have been actually enjoyed”. In Tamares Ltd v Fairpoint Properties Ltd , the court had no hesitation in coming to that conclusion.
ELECTRIC LIGHT IS NO SUBSTITUTE
In Midtown Ltd v City of London Real Property Co Ltd , the projected development would have restricted the natural light to the claimant’s office premises very severely.
The developer argued that the claimant’s offices had always been, and would continue to be, lit by artificial light during all working hours, and so the reduction in natural light would be immaterial. The court rejected this argument, which had potential to make rights of light entirely meaningless for most workplaces.
THE “50:50 RULE” IS NOT A RULE
Adequate light within a room is considered to be 0.2% of outside daylight measured at table-top height (85cm above the floor).
The convention is that if an interference with light reduces the area within a room which has at least that amount of light to less than 50% of the total room area, it amounts to an actionable nuisance (the “50:50 rule”).
But that is not the law.
The classic statement is in Colls v Home and Colonial Stores Ltd : “an owner of ancient lights is entitled to sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment of his house as a dwelling-house, if it is a dwelling-house, or for the beneficial use and occupation of the house if it is a warehouse, a shop, or other place of business”.
That is rather impressionistic, and the courts have found it convenient to adopt the 50:50 rule as a useful guide. But that is all it is.
In Regan, while the judge applied the 50:50 rule, he also took into account the adverse effect of the loss of light on family activities of “painting, modelling, dressmaking, writing and the like” (the family appears to be straight from the pages of Jane Austen).
In the Tamares case, where actionable nuisance was established, in relation to windows giving light to a staircase, there was no reference to the 50:50 rule at all. Instead, the court was concerned that the staircase would be less safe.
DAMAGES INSTEAD OF INJUNCTION
The court can order payment of damages instead of an injunction if:
- The injury to the claimant’s legal rights is small.
- It can be estimated in money.
- It can be adequately compensated by a small payment of money
- It would be oppressive to the defendant to grant an injunction.
THE REGAN DECISION
The Court of Appeal held that the injury to the rights of light was not ‘small’. The area of the living-room receiving adequate light would be reduced from 67% to 45%.
Normal activities in it would require artificial light where it had not been necessary before, or moving closer to the window, in full view of overlooking properties.
Neither did the court feel that the injury could be adequately compensated by a ‘small’ money payment. The loss was agreed to be £5,000 - £5,500, and while that might be smaller than the cost to the defendant of partial demolition, and a small percentage of the value of the property, it was not in absolute terms small.
As regards oppression to the defendant, the cost of reconfiguring the development would be up to £35,000, and the resultant reduction in value would be £175,000.
The conduct of the defendant is also relevant, and here they had gone ahead in the honest belief that the development would give rise to no problems, having taken advice from a rights of light consultant.
That said, the claim was asserted five months before any interference with the rights of light, and a calculated risk had been taken in deciding to proceed.
INJUNCTION IS THE NORM?
Questions of what amounts to a ‘small’ injury to rights of light, or a ‘small’ money payment in compensation, are coloured by the circumstances.
The same applies when assessing the conduct of the defendant. Context is all, and the court was plainly affected here by the financial consequences for the claimant, had he lost the litigation despite establishing an infringement of his rights of light.
The conduct of the parties is likely to be the important consideration, and a sophisticated commercial developer who makes reasonable attempts to negotiate with affected parties should not end up in this kind of difficulty.
The court did state that an award of damages in place of an injunction should be the exception, not the norm.
As always, though, it is worth paying attention to what judges actually do, and not what they say.
Of the three recent cases in this area, two have resulted in damages and only one in an injunction – after a visit to the Court of Appeal.