Nuisance - The right to light

Citation

Lee, R. (2007), "Nuisance - The right to light", Property Management, Vol. 25 No. 3. https://doi.org/10.1108/pm.2007.11325cab.003

Nuisance - The right to light

Regan v. Paul Properties DPF No. 1 Ltd and others (2006) EWCA Civ 1319 (2006) 44 EG 197 (CS)

In this case the appellant was the owner of a long lease of a maisonette on the first and second floors of a property where he lived with his family. The respondents were freeholders of three three-storey properties almost directly opposite. They joined together and obtained planning permission to erect a five storey building on the combined site. As soon as the appellant discovered the extent of the plans he applied for an injunction and damages alleging infringement of his right to light. In particular he sought to restrain the respondents from continuing with the development.

The High Court held that an actionable nuisance had been committed but exercised its discretion to award damages instead of the injunction. The appellant appealed claiming that the judge had misdirected himself in ruling that the refusal of an injunction in cases of infringement of right to light was not an exceptional course and in putting the burden of proof in a right to light case on the appellant to persuade the court that damages should not be awarded instead.

The Court of Appeal held that the judge had been wrong in principle to place the onus on the appellant to show why damages should not be awarded. It had long been established that except in very exceptional circumstances the judicial discretion to award damages in lieu of an injunction should not be exercised to deprive a claimant of his prima facie right to the remedy against a person who had committed a wrongful act (such as a continuing nuisance), which deprived the claimant of his legal rights. The wrongdoer was not entitled to ask the court to sanction his wrongdoing by purchasing the claimant’s rights on payment of damages to be assessed by the court. Factors that should be considered before exercising the court’s discretion to refuse an injunction were laid down in Shelfer v. City of London Electric Lighting Company (1895) 1 Ch 287. The test for infringement of the right to light was “whether the obstruction complained of was a nuisance in that there was a substantial loss of light rendering the house less fit for occupation and generally uncomfortable Colls v. Home and Colonial Stores Ltd (1904) AC179.

In the present case the respondents had chosen to take a calculated risk in proceeding with the development after the appellant had started his claim. Therefore the Court of Appeal held that it was not oppressive to the respondents or unreasonable or inequitable to grant an injunction to protect the appellant’s right to light in relation to his property. Thus the developers were forced to remove the penthouse flat from the development that infringed the appellant’s right to light.

Tamares (Vincent Square) Ltd v. Fairpoint Properties (Vincent Square) Ltd (2006) 41 EG 226

The issue in this case concerned the right to light through two basement windows lighting a basement stair well and two windows on the ground floor of the claimant’s building. The defendant had demolished the flat roof single storey building on its land and erected a three storey T-shaped building in its place. This was nearly completed when the claimant sought a mandatory injunction requiring the removal of the building on grounds that it was causing a substantial interference with the light through the windows. Although it was accepted that the building did interfere with the light through the basement windows the main dispute was as to interference with the claimed right of light through the two ground floor windows, which lighted the lobby. These windows had been blocked off from the inside of the building for twenty years. The defendant argued that as a result there could be no right to light as it had not been enjoyed during the 20-year prescriptive period (Smith v. Baxter (1900) 2 Ch 138). The claimant, however, contended that during that period the windows had enjoyed light to the back of the panelling that had been used to block them. Thus, the judge held, applying Smith v. Baxter that no right to light had been acquired to the two ground floor windows because they had been blocked throughout the 20 years prescriptive period.

The light through the two basement windows had never been more than moderate but it was found that the effect of the new building was to alter its arrangement so that more light fell onto the treads of the stairs and less onto the landings than there had been previously. This, the judge held, was a substantial interference with the use and enjoyment of the stairs and amounted to an actionable nuisance.

Damages were awarded but the application for the mandatory injunction was refused. The judge felt, applying the rule in the Shelfer case (above) that it would be inequitable to grant it as the injury was small and could be estimated and adequately compensated by an award of damages.

Perrin v. Northampton Borough Council (2006) EWCH 2331 (TCC) (2006) 48 EG 232

If we have another hot, dry summer in 2007 no doubt many landowners who have trees on their land that are subject to tree preservation orders (TPO) will worry about the circumstances in which they may be entitled to act to protect their property against its encroaching roots or branches.

The statutory rules are in s.198 of the Town and Country Planning Act (TCPA) 1990 and its regulations. The basic principle is that it is a criminal offence for anyone to cut down, uproot or wilfully destroy a tree, or wilfully damage, top or lop a tree subject to a TPO in such a manner as to be likely to destroy it. An offence is punishable by an unlimited fine. However, regulations made under the Act permit the tree to be felled or lopped by applying for permission from the local authority or the secretary of state on appeal. Also s.198(6) of the TCPA permits the cutting down, uprooting, topping or lopping of trees that are “dying or dead or have become dangerous” or “so far as may be necessary for the prevention or abatement of a nuisance.”

The oak tree in the Perrin case had been subject to a TPO for 20 years. The claimants were advised that the roots of the oak tree had caused the internal and external cracking to which their house was subject. They sought permission from the local authority to cut it down and when this was refused they appealed unsuccessfully to the secretary of state.

The claimants therefore sought a declaration that the tree was causing subsidence by encroachment of its roots and that they were therefore entitled to cut it down in order to prevent or abate the nuisance. The action was brought primarily against the local authority. The neighbours on whose land the tree was standing were joined as defendants, although they had already agreed that should the case succeed the tree could be cut down.

The local authority maintained in defence that even if the tree was a nuisance it could not be “necessary” to cut it down if it was possible to abate the nuisance by other means such as underpinning the affected property or constructing a concrete root barrier. This question was tried as a preliminary issue.

After an extensive review of the relevant case law on TPOs, the exemptions in s.198(6) and the common law on nuisance the judge provided four points of guidance for practitioners:

1. 1.

   The exemption in s.198(6) that provides for abatement or prevention of a nuisance only applies where there is an actionable nuisance (i.e. actual or imminent physical damage to land or buildings) rather than merely encroachment of roots or branches onto the claimant’s property.

2. 2.

   The decision as to whether it is “necessary” for a claimant to cut down, uproot or otherwise damage a tree to prevent or abate a nuisance is to be decided on “the everyday sensible approach of a prudent citizen looking at the tree in question”.

3. 3.

   It is not necessary to consider issues such as the cost of works, the relative financial positions of the parties, the presence or absence of insurance, the amenity value of the particular tree or the extent of the nuisance caused. Furthermore a claimant’s action does not cease to be necessary because it could be abated by other means such as underpinning of the affected property.

4. 4.

   Where the exemption does apply it permits only such damage to the tree as is necessary to abate the nuisance. So for example, the claimant could not cut down the tree if the nuisance could be abated just by lopping it.