The courts below had concluded that the defendant had infringed the plaintiff’s right to light, and had awarded an injunction.
Held: the appeal succeeded. The House set out the requirements for establishing the existence of a right to light. For an obstruction of ancient lights, the obstruction must be substantial, enough to render the occupation of the house uncomfortable according to ordinary notions of mankind, and for business premises, to stop the occupier carrying out his business as beneficially as before. The 1832 Act did not alter the character of the easement. The enjoyment of the light for 20 years creates an absolute and indefeasible rights as soon as the twenty years expires, but is not a period in gross, but a period next before some suit or action in which it is questioned. ‘The test of the right is, I think, whether the obstruction complained of is a nuisance, and, as it appears to me, the value of the test makes the amount of right required depend upon the surroundings and circumstances of light coming from other sources, as well as the question of the proximity of the premises complained of . . In each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action.’
The right is a purely legal one ‘it is an easement belonging to the class of negative easements. It is nothing more or less than the right to prevent the owner or occupier of an adjoining tenement from building or placing on his own land anything which has the effect of illegally obstructing or obscuring the light of the dominant tenement.’
The primary remedy is an injunction, but there may be circumstances where a remedy in damages was more appropriate, though the court should not allow the right to be used as a means of extorting money.
As to remedies, Lord MacNaghten: ‘But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the Court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament. On the other hand, the Court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money. Often a person who is engaged in a large building scheme has to pay money right and left in order to avoid litigation, which will put him to even greater expense by delaying his proceedings. As far as my own experience goes, there is quite as much oppression on the part of those who invoke the assistance of the Court to protect some ancient lights, which they have never before considered of any great value, as there is on the part of those who are improving the neighbourhood by the erection of buildings that must necessarily to some extent interfere with the light of adjoining premises’. And ‘In some cases, of course, an injunction is necessary – if, for instance, the injury cannot fairly be compensated by money – if the defendant has acted in a high-handed manner – if he has endeavoured to steal a march upon the plaintiff or to evade the jurisdiction of the Court. In all these cases an injunction is necessary, in order to do justice to the plaintiff and as a warning to others. But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the Court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament. On the other hand, the Court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money.’
Lord Davey: ‘It is impossible to assert that any man has a right to a fixed amount of light ascertainable by metes and bounds.’ and ‘ . . generally speaking 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. The expressions ‘the ordinary notions of mankind’, ‘comfortable use and enjoyment’, and ‘beneficial use and occupation’ introduce elements of uncertainty; but similar uncertainty has always existed and exists still in all cases of nuisance, and in this country an obstruction of light has commonly been regarded as a nuisance, although the right to light has been regarded as a peculiar kind of easement.’
Lord Lindley: ‘There is no rule of law that if a person has 45 degrees of unobstructed light through a particular window left to him he cannot maintain an action for a nuisance caused by diminishing the light which formerly came through that window. Experience shows that it is, generally speaking, a fair working rule to consider that no substantial injury is done to him where an angle of 45 degrees is left to him, especially of there is good light from other directions as well.’
Lord MacNaghten, Lord Davey, Lord Lindley
[1904] AC 179, 73 LJ Ch 484, 90 LT 687, 53 WR 30, 20 TLR 475, [1904] UKHL 1
Bailii
England and Wales
Citing:
Criticised in part – Scott v Pape CA 1886
Once an easement has been abandoned, it is abandoned forever. The court considered the issue as regards rights of light, and alterations made after the right had been indefeasibly acquired.
Cotton LJ said: ‘In my opinion the question to be . .
Cited by:
Cited – Allen and Another v Greenwood and Another CA 16-Oct-1978
cw Easement – Prescription – Right to light – Greenhouse – Claim for sufficient light to cultivate plants – Whether specially high amount of light – Whether right to extraordinary amount of light capable of being . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Applied – Fishenden v Higgs and Hill Ltd CA 1935
An injunction had been refused an injunction in respect of an infringement of an easement of light and awarded damages in lieu, even though the damages would be substantial because it had been shown that the plaintiff was plainly ‘only wanting . .
Cited – Regan v Paul Properties DPF No 1 Ltd and others ChD 27-Jul-2006
The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .
Cited – Kine v Jolly CA 1905
The court refused an injunction in respect of an infringement of the right to light to a dwelling house, restricting the plaintiff to a remedy in damages. Cozens-Hardy LJ: ‘I think it is impossible to doubt that the tendency of the speeches in the . .
Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
cgis_britelChD2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
Cited – Slack v Leeds Industrial Co-operative Society Ltd CA 1924
Nothing in Colls served to undermine the ‘good working rule’ of A L Smith LJ in Shelfer, although they discharged a quia timet injunction and ordered an inquiry as to damages . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.
Land, Nuisance
Updated: 05 December 2021; Ref: scu.183161