Cases - Fishenden v Higgs and Hill Ltd

Record details

Name

Fishenden v Higgs and Hill Ltd

Date

(1935)

Citation

153 LT 128

Keywords

Rights of light

Summary

The plaintiff was the lessee of a property in Mayfair that he sub-let as flats, retaining the ground floor flat for himself and the basement for a caretaker. On the land opposite, the defendants pulled down their building and started to construct a large block of flats. The plaintiff brought proceedings against the defendants claiming an injunction to restrain them from building so as to interfere with his rights of light. The defendants argued (amongst other things) that if a proposed new building allowed light to the plaintiff's window at an angle of 45 degrees from the perpendicular, the plaintiff could not complain about the reduction in the light in the absence of exceptional circumstances.

The judge decided that the so-called 45 degree rule was not a rule of law or of evidence. There could be no necessary inference that buildings complying with this rule would not cause any interference with light. Each case depended on whether, as a matter of fact and as a question of degree, the defendants' building caused a nuisance to the plaintiff's windows in accordance with the test in Colls. He held that the defendants' development would interfere with the plaintiff's rights of light to the ground floor and basement. The Court of Appeal upheld the judge's decision that there would be an actionable interference. Maugham LJ stated that the judge's views on the 45 degree rule were perfectly correct: there was no hard and fast mathematical test involving an angle of 45 degrees.