Right to Light in UK Law

Clauses of the second kind may prevent the acquisition of a right of light by prescription if what they authorise would interfere with light. If, on a fair reading of the clause they do, then it is not necessary, in my judgment, for the clause to use the word “light”. Once the clause has been interpreted, that interpretation will have been “expressly” agreed. A clause in a lease which authorises the landlord to build as he pleases is likely to satisfy the test.

First, the application of the four tests must not be such as "to be a fetter on the exercise of the court's discretion". Secondly, it would, in the absence of additional relevant circumstances pointing the other way, normally be right to refuse an injunction if those four tests were satisfied. Thirdly, the fact that those tests are not all satisfied does not mean that an injunction should be granted.

Faced with those observations Mr Morgan QC did not feel able to oppose the amendment, not submitting that there was any prejudice nor any other disadvantage, which could not be dealt with in respect of these amendments. This was a realistic stance given the fact that the Claimants could have issued fresh proceedings based on the grant and then would be in an incontestable position of showing that they had established a right to light.

Shelfer is the best known case. It is a decision of the Court of Appeal. It has never been overruled and it is binding on this court. The cause of action was nuisance, as in this case, though in the form of noise and vibration rather than interference with a right of light.

Reported cases are merely illustrations of circumstances in which particular judges have exercised their discretion, in some cases by granting an injunction, and in others by awarding damages instead. Since they are all cases on the exercise of a discretion, none of them is a binding authority on how the discretion should be exercised. The most that any of them can demonstrate is that in similar circumstances it would not be wrong to exercise the discretion in the same way.

The outcome of any particular case usually turns on the question: would it in all the circumstances be oppressive to the defendant to grant the injunction to which the plaintiff is prima facie entitled? Most of the cases in which the injunction has been refused are cases where the plaintiff has sought a mandatory injunction to pull down a building which infringes his right to light or which has been built in breach of a restrictive covenant.

Although I would accept that there may be a logical difficulty in making a distinction between the present case and the way-leave cases, I think that if the user principle were to be applied here there would be an equal difficulty in distinguishing other cases of more common occurrence, particularly in nuisance. Suppose a case were a right to light or a right of way had been obstructed to the profit of the servient owner but at no loss to the dominant owner.