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Switching off: how an artificial argument affects right to light

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legal matters

Right to light is a topic that architects seem to study thoroughly as part of their training, making them fully familiar with ideas such as acquiring rights by prescription and time immemorial, writes Sue Lindsey. We do not often see new law in this area, but in Midtown v City of London Real Property Company (20.1.05) the High Court had to deal with a novel argument.

The lighting in a City solicitor's office was, in fact, provided by artificial light. Even if the solicitor's right to daylight was infringed, said the defendant's barrister, so what? The case also helpfully revisits the principles behind deciding whether to grant an injunction to protect a right to light.

The case concerned a building in Fetter Lane occupied by solicitor tenant Kendall Freeman.

Midtown was the freeholder. The defendant obtained planning permission to build next door, and Midtown and Kendall wanted an injunction to stop the development, or be awarded damages.

The judge held that both freeholder and tenant had established a right to light, and that the defendant's development would affect those rights.

To deal with the amount of infringement, the judge turned to the experts.

The benchmark (literally measured at bench height, 830mm above the floor) was the area of the room reached by 0.2 per cent of the light available from the dome of the sky - sufficient to discern print.

The experts found that the proposed development generally reduced the percentage area of affected rooms benefiting from that minimum light level, from more than 50 per cent of the room area to single-figure percentages. In other words, there would be very large reductions in natural light.

Then came the defendant's argument about artificial lighting. Habitually, all the rooms affected, it said, were lit by artificial light whenever they were in use. None of the tenant's witnesses showed that they needed natural light to use their rooms. The judge described the tenant's witnesses as stressing the benefits of natural light in vague and subjective ways, which really related to the irrelevant factors of view and airiness, and he felt some sympathy for the defendant's barrister in having told one such witness that his evidence was 'twaddle'. The judge accepted that, in reality, modern offices do use artificial light to maintain a constant light level.

However, the judge did not accept that this meant the defendant's infringement would not be a nuisance. But to do so might mean that there could never be a successful right to light challenge, as it could always be argued that the loss of light could be met artificially. It would also undermine the idea that natural daylight can, for some tasks, have potential advantages over artificial light. The site might be redeveloped in future in such a way that more use of natural light would be made.

Having decided that the infringement would amount to nuisance, the judge had to deal with the appropriate remedy. Deciding whether to grant an injunction or award damages is not straightforward. On one hand, the court tends to be slow to award damages rather than give an injunction. To do so effectively legalises a tort committed by a defendant willing to pay compensation. On the other hand, an injunction puts the claimant in a very strong bargaining position. It can effectively fix its own terms on which the defendant is allowed to redevelop its site. As the House of Lords observed in a 1904 case, Colls v Home & Colonial Stores, 'the Court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money'.

In the Midtown case, the judge did not grant an injunction. The freeholder's only interest in its building was making money from it. The tenant had no obvious economic interest in the building that would be damaged by its right to light being infringed, and given that the lights were on all the time, its use of the building would not be affected. It also counted against both the freeholder and the tenant that they had failed to respond appropriately to approaches from the defendant to discuss the matter. The judge concluded that it would be oppressive to the defendant to grant an injunction, and ordered an inquiry to find the appropriate level of damages.

Sue Lindsey is a barrister at Crown Office Chambers. Visit www. crownofficechambers. com

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