Regan v Paul Properties DPF No 1 Ltd. & Ors

An interference with an easement of light is actionable only where it substantially impairs the comfortable use and enjoyment, or beneficial occupation, of the dominant premises. The conventional 50:50 rule is a useful guide, not a rule of law, and must be applied with regard to the room’s size, shape, use and distribution of light. Where actionable interference is established, damages in lieu of an injunction are not an exceptional remedy in rights-to-light cases. The claimant bears the burden of showing why an injunction should not be refused. The court should consider the extent of the injury, whether it can be valued and adequately compensated in money, and whether an injunction would be oppressive or disproportionate to the defendant.

The claimant owned a maisonette in Brighton opposite a development being constructed by the defendants. He alleged that the development substantially reduced daylight to the living room and sought a mandatory injunction requiring part of a penthouse flat to be demolished, together with damages.

The parties’ experts agreed that adequate daylight would reduce from approximately 65–67 per cent of the room’s floor area to 42–45 per cent. The issues were whether that reduction constituted an actionable nuisance and, if so, whether the court should grant an injunction or award damages in substitution.

1. Actionable interference. The easement protected sufficient light for the comfortable use and enjoyment, or beneficial use and occupation, of the premises. It did not protect every quantity of light previously received. The 50:50 rule was not a rigid legal rule, but a useful guide which might be departed from in extraordinary circumstances. Regard had to be had to the room’s size, shape, use and the distribution of light.
2. The reduction from approximately 65–67 per cent to 42–45 per cent was materially below the conventional minimum. The lost light affected the centre of a regularly shaped living room used for reading, painting, modelling, dressmaking and writing. The interference therefore made the room’s enjoyment significantly less comfortable and beneficial and constituted an actionable nuisance.
3. Relief. In rights-to-light cases, refusing an injunction and awarding damages in lieu was not an exceptional course. In light of Kine v Jolly and Fishenden v Higgs and Hill Limited, the claimant bore the onus of persuading the court that damages would be inadequate. The court rejected the submission that an injunction was the default remedy once infringement had been established.
4. The Shelfer v City of London Electric Lighting Company guidelines remained a useful working test, but were not a statutory provision. Each condition was satisfied: the injury was small, capable of monetary estimation, adequately compensable by a modest payment, and an injunction would be oppressive and disproportionate because of its substantial effect on the development.
5. The appropriate relief was damages in substitution for an injunction. The issue of the amount of damages was left for determination on a later occasion.