Home Information Cases Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd (2006)

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Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd (2006)

Summary

A blockage of windows for the entirety of the prescription period prevented a right to light through those windows being acquired on behalf of the dominant tenement.

Facts

The claimant company (T) applied for an injunction to prevent interference with its right to light in respect of four windows of its premises allegedly caused by a building owned by the defendant company (F). T owned the dominant tenement, an office building, and F owned the servient tenement, an adjoining development site. As part of the redevelopment, F had knocked down a single storey flat-roofed building and put up a T-shaped three storey building with a pitched roof. T alleged that that development interfered with the light to certain windows in the office building. There was no real issue that T could rely on a right for the office building to receive light through two basement windows, but in respect of two entrance lobby windows the position was different, as throughout the relevant 20-year prescription period those windows had been completely blocked on the inside by means of panelling that was part of the design of the entrance lobby, so no light had been received through those windows. Issues arose as to whether such a blockage of the windows for the entirety of the prescription period prevented a right to light through those windows being acquired on behalf of the office building, and if there had been an actionable infringement in respect of any one or more of the four windows, what was the appropriate remedy.

Held

(1) The dominant land could have used the access of light for any purpose that suited its convenience for the passage of light but in reality had not used it at all. The complete boarding up of the windows in the reception area throughout the entire prescription period, even though it was on the inside, meant that no right to light was acquired in respect of those windows. Smith v Baxter (1900) 2 Ch 138 applied. (2) In all the circumstances, to grant the mandatory injunction sought would be oppressive and create loss to F out of all conceivable proportion to any loss suffered by T as it would result in the demolition of part of F's building, and it would be unjust and inequitable to grant it. The injury in relation to the basement windows was small and could be adequately compensated by a small money payment. Shelfer v City of London Electric Lighting Company (1895) 1 Ch 287 and Jaggard v Sawyer (1995) 1 WLR 269 applied.

Application refused.

Chancery Division
G Moss QC
Judgment date
4 September 2006
References

LTL 5/9/2006 : (2007) 1 WLR 2148 : (2006) 41 EG 226

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