30
Minutes
of CPD
Fact Sheet 5
Important Rights of
Light Cases
www.righttolightsurveyors.co.uk
HKRUK II (CHC) v Heaney (2010)
The case of HKRUK II (CHC) v Heaney (2010) confirms that developers cannot force affected
parties to accept compensation in lieu of an injunction - and that an injunction may be granted
even if it results in demolition of completed building works.
Mr Heaney was successful in seeking an injunction forcing HKRUK II (CHC) Ltd to take down their
two storey extension to an office building in Leeds. The court applied the principles of Shelfer v
City of London Electric Lighting Company [1895] which put the onus on the developer to prove
that an injunction should not be granted. To avoid an injunction, the developer must demonstrate
all of the following:
1. The injury is small.
2. The injury is capable of being estimated in money.
3. The injury can be adequately compensated by a small money payment.
4. The case is one in which it would be oppressive to the defendant to grant an injunction.
Interestingly, the injury to Mr Heaney’s light was to less than 1% of the whole building and yet the
court still granted an injunction requiring the developer to remove the offending works (at a cost
estimated at over £1,000,000).
An appeal by HKRUK II (CHC) was scheduled to be heard in the Court of Appeal. However, a
settlement on undisclosed terms was reached just before the hearing.
Regan v Paul Properties (2007)
In this case Paul Properties Ltd were in the process of constructing a development on the
opposite side of a road from Mr Regan’s ground floor maisonette. Mr Regan objected to the
development as it affected the light to his sitting room. The parties could not reach any form of
agreement on the issue, and despite this, Paul Properties Ltd continued to build. Mr Regan then
sought an injunction to prevent the interference to his right to light.
The High Court ruled that, whilst rights of light were affected and there was an actionable
nuisance, damages would be an appropriate remedy. The High Court in making its decision
concluded that the damage could be assessed in monetary terms and was small. It ruled that,
the effect on Mr Regan’s property was in the region of £5,500 and that forcing the developer to
modify the development would be oppressive.
Mr Regan appealed and the Court of Appeal overruled the High Court. The Court of Appeal did
not agree that the interference with the right of light was a small injury, but said that it amounted
to substantial interference. Furthermore, the Court of Appeal noted that whilst modifying the
development would have serious consequences for the developer, the developer knew of Mr
Regan’s objections well before the development had been constructed. The Court felt it would be
more oppressive to Mr Regan to deny him his right to light than it would be to grant an injunction
against the developer. The court therefore ordered the developer to amend their building.
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Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent
Square) Ltd (2006)
In this case the judge had rejected a property owner’s claim for an injunction. In awarding
compensation the judge set out a series of principles for calculating damages:
1) The overall principle is that the court must attempt to find what would be a “fair result of a
hypothetical negotiation between the parties;
2) The context, including the nature and seriousness of the breach, must be kept in mind;
3) The right to prevent the development (or part) gives the owner of the right a significant
bargaining position;
4) The owner of the right with such a bargaining position will normally be expected to receive
some part of the likely profit from the development (or relevant part);
5) If there is no evidence of the likely size of the profit the court can do its best by awarding a
suitable multiple of the damages for loss of amenity;
6) If there is evidence of the likely size of the profit the court should normally award a sum which
takes into account a fair percentage of the profit;
7) The size of the award should not in any event be so large that the development (or relevant
part) would not have taken place had such a sum been payable;
8) After arriving at a figure which takes into account all the above and any other relevant factors,
the court needs to consider whether the “deal feels right”.
In this case, the judge felt that a fair percentage of the profit which satisfied all of the above
criteria was one third. Applying that to the profit figure meant that Tamares was entitled to
damages of £50,000.
Midtown Ltd v City of London Real Property Company Ltd
(2005)
The question of whether the use of artificial light throughout the year should be taken to mean
that natural daylight is of little importance was central to this case. City of London Real Property
Company Ltd wanted to develop land opposite Midtown Ltd’s freehold property. However,
Midtown Ltd sought an injunction.
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It was argued that although artificial light is regularly used in an office environment, this does
not detract from the fact that natural light has many benefits and is a sought after commodity.
Therefore, although natural light may be seen as less important in an office, when assessing
the impact on natural light it will not necessarily prevent an injunction being awarded. The case
confirms that artificial light is not a substitute for natural light in right of light cases.
Deakins v Hookings (1993)
Miss Deakins was awarded an injunction after the loss of light to her property was found by the
judge to be of real significance to somebody living in the affected room. The area of the living
room which was well lit was reduced from 50% to 41%. The kitchen was also affected but, as
the area which was well lit fell from 88% to 57.4%, it was considered by the judge not to be
actionable. The judge confirmed the position that the 50/50 rule (see Fact Sheet 3) was not a rigid
test and that in some cases a higher standard might be appropriate.
Carr-Saunders v Dick McNeil Associates Ltd and
others (1986)
This case established two important principles. First, that when assessing rights of light it is
not only necessary to consider the current use and layout of the dominant property, but also
reasonable future uses and layouts. Secondly, that it is necessary to have regard to the relative
bargaining positions of the parties when setting the level of compensation. Taking this into
account, the judge awarded damages equivalent to around 2.7 times the value of the light being
taken away.
Ough v King (1967)
This case confirmed that the 50/50 rule is not a rigid test. It was argued by King that since 51% of
Ough’s room remained well lit there was no injury. The County Court judge ruled, after visiting the
property, that the light had been injured even though more than 50% of the room area remained
well lit. This position was later confirmed in the Court of Appeal.
Sheffield Masonic v Sheffield Corporation (1939)
Sheffield Masonic Hall had their north facing windows obstructed by the development of an art
gallery built by Sheffield Corporation. The Corporation argued that there was no injury since the
Sheffield Masonic Hall also had east facing windows, which faced an open space and would
continue to provide enough light to the room for ordinary purposes.
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It was held that a servient owner was entitled to build to such a height in front of the windows on
one side of the room, provided the room would retain adequate light if an obstruction of the same
height were to be erected in front of the windows on the opposite side of the room.
Ankerson v Connelly (1907)
The main question raised by this case was whether the alteration to the dominant owner’s
property extinguishes or interrupts an easement of light. The case confirms that, where a window
is reduced in size, the right of light remains. However, the dominant owner cannot bring a
successful claim against the servient owner’s obstruction if adequate light would have remained
had the window not been reduced in size.
Colls v Home and Colonial Stores (1904)
This case helped to establish the amount of light a dominant owner is entitled to. In the House of
Lords, Lord Lindley said:
‘…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
dwellinghouse, if it is a dwellinghouse, or for the beneficial use and occupation of the house if it is
a warehouse, a shop or other place of business.’
Shelfer v City of London Electric Lighting Company (1895)
This case established that the primary remedy for the interference with an easement is an
injunction. However, the judge went on to say that:
‘In my opinion, it may be stated as a good working rule that 1.
2.
3.
4.
If the injury to the plaintiff’s legal rights is small,
And is capable of being estimated in money
And is one which can be adequately compensated by a small money payment,
And the case is one in which it would be oppressive to the defendant to grant an injunction:
then damages in substitution for an injunction may be given.’
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