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 money’. The court made use of a sky contour diagram. At first instance Crossman J had said: ‘that something like 50 per cent of an ordinary shaped room ought to be adequately lighted within this so-called grumble line.’
Held: The appeal against the finding of nuisance was dismissed. There was sufficient material before the learned judge to justify his conclusion that a nuisance would be committed. The court made use of daylight plans, grumble lines and the 50-50 rule.
Maugham LJ, whilst finding the daylight plans ‘exceedingly useful’ said that ‘no hard and fast mathematical standards can be applied’ and: ‘I should add one thing more with regard to the daylight plans, and that is that they may, I think, often be exceedingly misleading if the so-called 50-50 rule with regard to the amount of light which the rooms should enjoy is applied to a room which has any unusual depth in it, or applied to a room where the windows are in any sense unusual, because the light falling at table height from the window at a particular part of the room depends directly upon the depth of the room and the height of the window, and obviously those things have got to be carefully considered in applying the rule.’
Romer LJ spoke of the plaintiff’s complaint that ‘he now – that is to say, in the last few weeks – has to use artificial light to eat his lunch, though formerly he could do so by daylight’ and ‘In whatever neighbourhood a dwelling-house is situated, a man is entitled to have his ancient lights protected to this extent, that he may be able to go on having his lunch without the use of electric light in places where obviously he had so lunched.’ A L Smith LJ’s four tests in Shelfer ‘were not intended to be a fetter on the exercise of the court’s discretion’, and Romer LJ suggested that, while it was true that an injunction should be refused if those tests were satisfied, ‘it by no means follow[ed]’ that an injunction should be granted if they were not In deciding to overturn the injunction, Romer LJ was strongly influenced by the fact that the defendants had ‘acted fairly [and] in a neighbourly spirit’ as well as by the conduct of the plaintiff.


Lord Hanworth MR and Romer LJ


[1935] 153 LT 128


England and Wales


AppliedColls v Home and Colonial Stores Ltd HL 2-May-1904
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. . .
ExplainedShelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .

Cited by:

CitedMidtown 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 . .
CitedRegan 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 . .
CitedCoventry 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, Damages

Updated: 09 May 2022; Ref: scu.222598