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Some time ago I related the tale of Mr Regan (AJ 14.09.06), whose sunny living room in Brighton was to be deprived of light by a nearby development, writes Sue Lindsey.

The judge concluded that, while Mr Regan's rights were to be infringed by the development, the awarding of damages was more appropriate than an injunction. It seemed that damages had become the norm in such cases. But Mr Regan bravely battled on and has been vindicated by the Court of Appeal, which has granted an injunction limiting the offending development (Regan v Paul Properties, (judgment 26 October 2006)).

The developer did not appeal the judge's finding that Mr Regan's right to light had been infringed. This finding arose from the judge's analysis of the so-called 50:50 rule.

While not commenting on that analysis directly, the Court of Appeal said that the issue is not the amount of light removed but the amount that remains, and concluded that there would be substantial interference with Mr Regan's enjoyment of natural light.

The basis of the appeal, and the target of the Court's criticism, were two key aspects that led the judge to conclude that the development should not be restrained by injunction.

The Court disagreed with the judge's analysis of previous cases that led him to conclude that the onus was on Mr Regan to show that he should not be left to a remedy in damages.

The choice of remedy is a matter for the discretion of the judge, so each case is merely an illustration of a particular set of circumstances and the conclusion that the judge reached in the face of them.

The various tests applied in the cases are not to be treated as though they are statutory rules, and there is no rule of thumb stating that the claimant must prove entitlement to an injunction.

Appellate courts are always hesitant about overruling a judge's exercise of discretion.

But, having overruled the legal basis that lay behind the judge's refusal to grant an injunction, the Court concluded that, on the basis of the correct legal analysis, the proper course was to grant one. In doing so it took into account a factor that the trial judge had not considered relevant, namely the conduct of the developer.

The factual background to the case was that Mr Regan had protested for five months while work continued. The developer had proceeded on the basis of incorrect advice stating that there was no infringement.

However, that should not be allowed to prejudice Mr Regan's position; he had done nothing wrong, and the developer had proceeded in the face of his protests, at their own risk.

The effect of the injunction is that the penthouse on the development will be reduced in size, at a loss in value of about £175,000. Add to that the cost of the reduction work, and the costs of proceedings in two courts, and the bill will be a sizeable one. Prudent developers will now, no doubt, be looking to iron out all potential problems with neighbours before so much as ordering a brick.

Sue Lindsey is a barrister at Crown Offi ce Chambers in London. Visit www.crownofficechambers. com

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