Tamares (Vincent Square) Ltd. v Fairpoint Properties (Vincent Square) Ltd

Prescription of a right to light requires actual enjoyment of access to light during the statutory period. An internal arrangement may affect the width of an easement already acquired, but cannot establish acquisition where the light has been wholly blocked.

An actionable interference requires substantial privation causing real injury, assessed by the court using ordinary notions of comfortable occupation. Speculative alternative uses do not suffice without credible evidence. A mandatory injunction remains discretionary. The Shelfer conditions are a working rule, not an exhaustive restriction on equitable discretion. Where the injury is slight, the defendant acted honestly and reasonably, the development is substantially complete, and demolition would be oppressive and disproportionate, damages may be substituted.

The claimant owned an office building adjoining a development site owned by the defendant. The claimant alleged that the defendant’s redevelopment interfered with rights to light through four ground-floor windows: two entrance-lobby windows and two basement-staircase windows.

The entrance-lobby windows had been wholly blocked internally throughout the prescriptive period. The staircase windows were accepted to benefit from a right to light. The issues were whether rights had been acquired, whether the development caused actionable injury, and whether a mandatory injunction requiring substantial demolition should be granted.

1. Entrance-lobby windows. No right to light had been acquired. Section 3 of the Prescription Act 1832 required actual enjoyment of access to light. The internal arrangement rule concerned the extent or width of an acquired easement, not the anterior question whether an easement had been acquired. Light illuminating the rear of internal boarding was not meaningful actual enjoyment where the boarding wholly excluded light from the building. The claimant’s alternative-use arguments were speculative and unsupported by credible evidence.
2. Actionable interference. The governing test required substantial privation sufficient to make occupation uncomfortable or prevent the accustomed business being carried on as beneficially. The court had to perform both judge and jury functions. In relation to the staircase windows, redistribution of natural light made the stairs materially less safe when artificial lighting was disregarded, amounting to real injury and an actionable nuisance. In the real-world context of a modern office, however, the injury was trivial. There was no actionable injury concerning the entrance-lobby windows, even on the assumption that rights existed.
3. Sheffield Masonic Hall. The principle concerned realistic possibilities of future development. It did not require the court to assume remote and fanciful construction on a playing field, in the middle of a road, or through successive hypothetical developments.
4. Remedy. The four Shelfer conditions were satisfied, but they were only a working rule. The wider equitable discretion had to be exercised by reference to all the circumstances. The principles in Jaggard v Sawyer applied: the question was whether an injunction would be oppressive, having regard to the position at the hearing, the fait accompli, the claimant’s failure to seek interlocutory relief, the parties’ conduct, proportionality, and the availability of damages.
5. The defendant had acted honestly and reasonably, although it proceeded at its own risk after warning. The claimant had suffered only slight injury and substantial demolition would be wholly disproportionate. A mandatory injunction was therefore refused. Damages were not assessed and were left for a separate inquiry.