“I do not think that is the law. The argument seems to me to rest upon a false analogy, as though the access to and enjoyment of light constituted a sort of proprietary right in the light itself. Light, like air, is the common property of all, or, to speak more accurately, it is the common right of all to enjoy it, but it is the exclusive property of none.”
“The test of the right, I think, is whether the obstruction complained of is a nuisance, and, as it appears to me, the value of the test makes the amount of right acquired depend upon the surroundings and circumstances of light coming from other sources, as well as the question of the proximity of the premises complained of.”
“The general principle deducible from [the authorities] appears to be that the right to light is in truth no more than a right to be protected against a particular form of nuisance, and that an action for the obstruction of light that has in fact been used and enjoyed for twenty years without interruption or written consent cannot be sustained unless the obstruction amounts to an actionable nuisance; and this often depends on considerations wider than the facts applicable to the complainant himself.”
“… in all these cases of nuisance which involve a limitation of a man’s right to use his own land, the Courts will not enforce the alleged rights of the plaintiff, unless that which has occurred is a substantial interference with his comfortable or profitable occupation of his dwelling-house, or warehouse, or house of business, as the case may be. [….] [T]here can be no doubt that such a rule, whether logical or not, is a rule that owes its existence to the convenience and comfort of the people at large. It is convenient that no man should be allowed to enforce rights to such an extent as to interfere with the good and the progress of the community. That I understand to be the meaning of the decision of the House of Lords ….”
“It was not sufficient to constitute an illegal obstruction, that the plaintiff had, in fact, less light than before; nor that his warehouse, the part of his house principally affected, could not be used for all the purposes to which it might otherwise have been applied. In order to give a right of action, and sustain the issue, there must be a substantial privation of light, sufficient to render the occupation of the house uncomfortable, and to prevent the plaintiff from carrying on his accustomed business … on the premises as beneficially as he had formerly done. His Lordship added that it might be difficult to draw the line, but the jury must distinguish between a partial inconvenience and a real injury to the plaintiff in the enjoyment of the premises.”
“ … 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 home as a dwelling-house, if it is a dwelling-house, or for the comfortable use and enjoyment of the house if it is a warehouse, a shop, or other place of business. The expressions “the ordinary notions of mankind,” “comfortable use and occupation,” and “beneficial use and occupation” introduce elements of uncertainty; but similar uncertainty has always existed and exists still in all cases of nuisance…”
“(1) A person may carry out building or maintenance works to which this subsection applies even if it involves – (a) interfering with a relevant right or interest, or (b) breaching (i) a restriction as to the user of land arising by virtue of a contract, or (ii) an obligation under a conservation covenant.
“(1) A person is liable to pay compensation for any interference with a relevant right or interest or breach of a restriction that is authorised by section 203(1)(a) or (b)(i) ……. (2) The compensation is to be calculated on the same basis as compensation payable under sections 7 and 10 of theCompulsory Purchase Act 1965 .”
“… for the purpose of facilitating the carrying out of development, redevelopment or improvement on or in relation to that land”
“As regards light from other quarters, such light cannot be disregarded; for as pointed out by James V.-C. in the Dyers Co v King, the light from other quarters, and the light the obstruction of which is complained of, may be so much in excess of what is protected by law as to render the interference complained of non-actionable. I apprehend, however, that light to which a right has not been acquired by grant or prescription, and of which the plaintiff may be deprived at any time, ought not to be taken into account. (See the case just cited.)”
“… it is not all light to which a right has not been acquired by grant or prescription that is left out of account, but only the light of which the plaintiff may be deprived at any time”
“As a matter of law in assessing whether a reduction of light amounts to an actionable interference, light from other sources is taken into account whether or not there is a right to such light provided only that in practice the dominant owner will not be deprived of that light: Smith v Evangelization Society (Incorporated) Trust[1932] 1 Ch 515 at 539-540 per Romer LJ”
“If the VSC, with the new development in place, is both less than 27% and less than 0.80 times its former value, occupants of the existing building will notice the reduction in the amount of skylight.”
“Where one room in a UK dwelling serves more than a single purpose, the UK committee recommends that the target illuminance is that for the room type with the highest value – for example, in a space that combines a living room with a kitchen the target illuminance is recommended to be 200 lx.”
“Living rooms and kitchens need more daylight than bedrooms, so where there is the choice it is best to site the living room or kitchen away from obstructions. ….. Non-daylit internal kitchens should be avoided wherever possible, especially if the kitchen is used as a dining area too. Daylight levels in kitchen areas should be checked. If the layout means that a small internal kitchen is inevitable, it should be directly linked to a well daylit room. Further guidance for assessment of this situation is given in Appendix C. Appendix C at C.17 relevantly provides: “Where a room has a shared use, the highest target should apply. For example in a bed sitting room in student accommodation, the value for a living room should be used if students would often spend time in their rooms during the day. Local authorities could use discretion here. For example, the target for a living room could be used for a combined living/dining/kitchen if the kitchens are not treated as habitable spaces, as it may avoid small separate kitchens in a design. The kitchen space would still need to be included in the assessment area (Figures C4 and C5). Figure C4 shows a combined LKD area and has the following commentary: “for a combined living/dining/kitchen area, the kitchen should always be included as part of the room area in the calculations, even in cases where the kitchen is deemed non-habitable and the living room criterion is applied to the whole space.”
“4.13 … Urban flats are often designed to position the kitchen in the darkest part of the room (i.e at the rear). This configuration, unsurprisingly, exists in both flats. …. 4.14 The expectation of natural light for a kitchen in this configuration will clearly be significantly lower and will not meet national industry guidance which places a higher requirement of natural light. This guidance is applicable to cases where a kitchen is a separate and main habitable room. It does not apply to the configuration common in flats such as these where the kitchen is placed at the back of and in the darkest part of a room which includes a living and dining area. Given that the kitchen is a separate and distinct area of the living/dining/kitchen space and this area will be confined to food preparation and the like, I consider that it is appropriate to consider the kitchen area separate from the living/dining area when assessing the reduction in and sufficiency of light within these spaces.”
“… you would be in a scenario saying: that’s interesting, that’s getting to a debatable point, if Waldram was right.”
“A space is considered to provide adequate daylight if a target illuminance level is achieved across a fraction of the reference plane within a space for at least half the daylight hours. In addition, for spaces with vertical or inclined daylight openings, a minimum target illuminance level is also to be achieved across the reference plane.”
“Against the BRE Guidelines tests (VSC/PSH) the reductions would be considered non-material and not noticeable, with the exception of the NSL test which indicates there may be a noticeable reduction in daylight. However in my opinion, the more complex methodologies mentioned above actually demonstrate that even this reduction will not be noticeable.”
“… the assessment suggests that the light remaining will be insufficient on the basis that the room has been reduced to less than 50% well lit. There are numerous deficiencies with the Waldram analysis, as detailed above, and in view of the results of the other methodologies considered above, I am clear that the level of light, nevertheless, remained sufficient.”
“I am clear that this room will not only retain sufficient daylight but also there will be no noticeable reduction to it. When sunlight is considered, there may be a noticeable reduction, but the APSH test referenced in the BRE Guidelines, indicates that this reduction would not be materially adverse. Given the use of this room as a bedroom, it is my view that no substantial interference on the use and enjoyment will occur between the “before” and “after” condition.”
“… the remaining light that will be enjoyed, is similar at this level (0.56%) as well as the recommended level (0.7%), despite falling marginally short of the guidance. I therefore consider it sufficient against this room’s use and location.”
“I am clear that this room will not only retain sufficient daylight but also there will be no noticeable reduction to it.”
“It is my belief that Waldram has used the jury results where all the factors such as internal and external reflectance were in play and related this to the amount of sky visible from each point in order to deduce that any room would be adequately daylit when the sky visibility exceeded a threshold value over more than half the room area. In other words, the average illuminance would be much higher than the minimum acceptable level not simply through direct sky visibility but through internal and external reflectance…. With the benefit of historical hindsight, it is possible to see that Waldram was aware of the complexity of daylight assessment and created his methodology as a means of simplifying the whole process such that it would be possible to achieve a consistent result.”
“In ignoring the separate measurement of internal reflectance and losses through windows, he was effectively assessing these as constants when measuring relative movement of a notional contour of acceptability (the grumble line) and, in legal terms, was avoiding the issue of burden on the servient owner where the dominant owner had, for example, non-reflective surfaces internally and heavy window frames and/or obstructed glazing.”
“…where a claimant had established that the defendant’s activities constituted a nuisance, prima facie the remedy, in addition to damages for past nuisance, was an injunction to restrain the defendant from committing such nuisance in the future, the precise form of any injunction depending on the facts of the particular case; that the court had power, however, to award damages instead of an injunction and, in considering whether to do so, was free to take account of the existence, and terms and conditions, of any planning permission for the land in question, as well as other matters of public interest, such as the effect of any injunction on the viability of the defendant’s business and on the public’s enjoyment of the activities carried on by that business; that, by contrast, the court could also take account of the effect on persons other than the claimant who would remain badly affected by the nuisance if an injunction were not granted; but that in all cases it was for the court to weigh up all competing factors in the exercise of its unfettered discretion.”
“Arbor was not injuring anyone”; “As I knew that Arbor didn’t cause any injury, there was no risk”
“(1) Damages assessed by reference to the value of the use wrongfully made of property (sometimes termed ‘user damages’) are readily awarded at common law for the invasion of rights to tangible movable or immovable property (by detinue, conversion or trespass). The rationale of such awards is that the person who makes wrongful use of property, where its use is commercially valuable, prevents the owner from exercising a valuable right to control its use, and should therefore compensate him for the loss of the value of the exercise of that right. He takes something for nothing, for which the owner was entitled to require payment. (2) Damages are also available on a similar basis for patent infringement and breaches of other intellectual property rights. (3) Damages can be awarded under Lord Cairns’s Act in substitution for specific performance or an injunction, where the court had jurisdiction to entertain an application for such relief at the time when the proceedings were commenced. Such damages are a monetary substitute for what is lost by the withholding of such relief. (4) One possible method of quantifying damages under this head is on the basis of the economic value of the right which the court has declined to enforce, and which it has consequently rendered worthless. Such a valuation can be arrived at by reference to the amount which the claimant might reasonably have demanded as a quid pro quo for the relaxation of the obligation in question. The rationale is that, since the withholding of specific relief has the same practical effect as requiring the claimant to permit the infringement of his rights, his loss can be measured by reference to the economic value of such permission. (5) That is not, however, the only approach to assessing damages under Lord Cairns’s Act. It is for the court to judge what method of quantification, in the circumstances of the case before it, will give a fair equivalent for what is lost by the refusal of the injunction. (6) Common law damages for breach of contract are intended to compensate the claimant for loss or damage resulting from the non-performance of the obligation in question. They are therefore normally based on the difference between the effect of performance and non-performance on the claimant’s situation. (9). Where the claimant's interest in the performance of a contract is purely economic, and he cannot establish that any economic loss has resulted from its breach, the normal inference is that he has not suffered any loss. In that event, he cannot be awarded more than nominal damages. (10). Negotiating damages can be awarded for breach of contract where the loss suffered by the claimant is appropriately measured by reference to the economic value of the right which has been breached, considered as an asset. That may be the position where the breach of contract results in the loss of a valuable asset created or protected by the right which was infringed. The rationale is that the claimant has in substance been deprived of a valuable asset, and his loss can therefore be measured by determining the economic value of the right in question, considered as an asset. The defendant has taken something for nothing, for which the claimant was entitled to require payment….”
“(a) On the one side, Amec is a willing seller, but only at a proper price. (b) On the other side, Jury is a willing buyer wanting to acquire the right to cross the A/B line and prepared to pay a proper price but not a large ransom. (c) In such a negotiation the parties would proceed on common ground, put forward their best points and take into account the other side's best points. …. (e) The basis of the negotiation would be a split of the perceived gain to Jury. That gain would not be obvious, and would be the subject of debate within the sort of variables that I have described above. (f) The parties are to be taken to know the hotel's actual figures for the purposes of assessing gain. (g) In this case, the extent to which Jury would have been able to build more than 240 rooms if they had to confine their hotel to the proper footprint is not clear.... This factor is one of the irresolvable points that would be canvassed in the negotiation with no final conclusion being reached on it in terms of deciding an actual number... (h) The numbers arising from these calculations are also debateable because of a genuine difference of view as to discount factors and yields. …. (j) The additional land which Jury were seeking was not just a few inches - it was almost 4 metres wide, and the area was 11% of the area of the hotel. That is a significant amount of extra building. (k) Whilst militating against any sort of de minimis figure (at least), the preceding factor also imposes a restraint on very high figures. …. As a matter of common sense Jury would never pay a sum approaching£2.3 million for the right to build on a 4 metre strip of land when they had only paid£2.65 million for the whole plot in the first place. …. (m) Jury would be fairly keen, though not overwhelmingly anxious, to have the right to build over the A/B line. (n) As important as any of the above factors is this. In any negotiation science and rationality gets one only so far. At the end of the day the deal has to feel right. Some of the numbers that have been suggested by Amec in the course of this litigation, while perhaps intellectually justifiable, seemed to me to be way over the top of what Jury would be prepared to pay, when set in the context of the rest of the cost of this hotel.”
“(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 a 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 consideration all the above and any other relevant factors, the court needs to consider whether the ‘deal feels right’.”
“Given that negotiating damages under [Lord Cairns’s Act] are meant to be compensatory, and are normally to be assessed or valued at the date of breach, principle and consistency indicates that post-valuation events are normally irrelevant. However, given the quasi-equitable nature of such damages, the judge may, where there are good reasons, direct a departure from the norm, either by selecting a different valuation date or by directing that a specific post-valuation date event be taken into account.”
“For this reason, the object of the exercise is to arrive at a money sum such as would hypothetically have been agreed between reasonable parties at the relevant time. It is not (as, unfortunately, the claimant’s expert appears to have thought in the present case) to arrive at a formula dependent on future events.”
“following offers being made [at four times book value] I would agree the technical analysis with the appointed rights of light surveyor and then invite a counter offer. The counter offer would be the upper end of the amount the neighbour would be willing to settle at and if they offered, by way of example, a multiplier of 12 times the book value, I would counter with a multiplier of five times the book value and follow up with a without prejudice phone call to find out where we could reasonably settle that. Some neighbours appointed the same rights of light surveyor and generally the same multiplier would be agreed for each neighbour or slightly higher if there were greater first or front zone losses within the room.”