Ancient light obstruction by wall mandates mandatory injunction for demolition under Civil Wrongs Law.

[*78] 1978 October 24

(PIKIS, P.D.C. )

IN THE DISTRICT COURT OF LARNACA

Andreas Panayi Parapanou,

Plaintiff,

v.

Georghios Charalambous,

Defendant.

(Action No.1179/77)

Immovable property - Light - Ancient lights - Interference, with - Section 50 of the Civil Wrongs Law, Cap. 148 - Injunction - Principles governing grant of - Dwelling house- Owner of adjoining land erecting wall thereon obstructing entrance of sunlight to dwelling house and rendering it highly uncomfortable - Gross interference with plaintiff's rights which cannot be estimated in money terms - Mandatory injunction ordering demolition of wall.

Constitutional Law - Constitutionality of Legislation - Right to property - Article 23 of the Constitution - Not intended to apply to matters relevant to the regulation of civil law rights - Section 50 of the Civil Wrongs Law, Cap. 148 not contrary to the said Article 23 of the Constitution.

N. Cleanthous, for the Plaintiff.

A. Poetis, for the Defendant.

JUDGMENT

The following judgment was delivered by:-

PIKIS, P.D.C.: The plaintiff is the owner [*79] of a house at 1 Stavrodromi street, Larnaca, shown on a plan drawn by Mr. Chrysostomos Nathanael (P.W.3), a building technician, licensed to draw architectural plans (exh. 2). It is an old house erected more than sixty years ago, situate in a densely populated area of the town. The house has a rectangular shape with four rooms in a row, opening into a narrow yard fenced by a tall wall nearly four metres high. The front room is being used as a sitting room whereas the two adjoining rooms are used as bedrooms and the fourth room as a kitchen. It stands on what is, by any measure, a small plot of land.

Mr. Alecos Papacleanthous (P.W.1), a lands clerk, gave an account of the L.R.O. history of the property, its amalgamation into one unit and details of its registration in the name of the plaintiff.

The complaint of the plaintiff is that defendant, the owner of the adjoining plot of land, erected a wall on his land virtually abutting the side wall of the house of the plaintiff (coloured red on exhibit 2), Obstructing thereby the entrance of sunlight to the aforementioned property of the plaintiff, rendering useless as avenues of light three windows of the house of the plaintiff, as indicated on the plan. It is the case for the plaintiff that the building by defendant of the aforementioned wall constitutes an obstruction of his right to ancient lights as defined by section 50 of the Civil Wrongs Law, Cap. 148. He prays, inter alia, for [*80] a mandatory injunction requiring the defendant to pull down the said wall or any part thereof and remove thereby the obstruction complained of.

There is before me overwhelming evidence that as a result of the acts of the defendant, viz. the putting up of the wall, daylight in two of the bedrooms of the house of the plaintiff and the kitchen has substantially diminished so much so /that the use of electric light is necessary at all hours of the day. (See the evidence of Nicos Sampson, P.W. 2; Chrysostomos Nathanael, P.W. 3; Stavros Stylianou, P.W.4; Kyriakos Tembrios, P.W. 5; Sofia Panayi, P.W.6; Theognosia Frantzeskou, P.W. 7; and Costakis Nicolaides, D.W.2).

During the hearing of the action I had occasion to see the premises and comprehend the magnitude of the interference. (See Tito v. Waddell (1975) 3 All E.R. 997 - regarding the implication of a visit to the locus by the Court.)

In his final address learned counsel for the defendant conceded that as a result of the above mentioned action of the defendant the rights of the plaintiff, as defined by s. 50, were violated. This submission was made notwithstanding the initial joinder of issue on the contentions of the plaintiff that his aforementioned rights to ancient lights were infringed. Before me there is a strong body of evidence that daylight illuminated the rooms in question through the windows shown on exhibit 2 for a [*81] long time, as long as sixty years ago. In fact these were the avenues through which sunlight was primarily admitted to light these rooms during daytime.

The definition of ancient lights was the subject of discussion in at least three decisions of the Supreme Court and numerous English cases. (See Haji Artin Terzian v. Maroulla Chr. Michaelides, 18 (Part II) C.L.R., p. 125; Christodoulos Rodosthenous v. Haralambos J. Polemites another

19 C.L.R. 177; Theofanou Akama and Another v. Niki Ioannou Tsiakoli (1967) 1 C.L.R. 206; Colls v. Home and Colonial Stores (1904) 73 L.J. Ch. 484; Levet v. Gas Light & Coke Co. (1919) 1 ch. 24; Higgins v. Betts (1905) 2 Ch. 210.) The right to ancient lights is gained through defined channels. It is a question of fact and degree whether in the given circumstances of a case the interference with the amount of daylight constitutes the tort of nuisance defined by s. 50 of the Civil Wrongs Law. In resolving the question regard shall be had to the use of the premises and the extent to which daylight is diminished in order to ascertain whether as a result of the interference the use of the premises has become uncomfortable. In this case there was a vast interference with plaintiff's right to ancient lights making the continued use of the premises as a dwelling house highly uncomfortable.

Before leaving the factual background of the case reference must be made to the circumstances under which the defendant erected the wall. This is necessary in order to ascertain the behaviour of the parties in connection with the commisssion of the tort inasmuch as the [*82] behaviour of the parties is always relevant when the Court is asked to exercise a discretionary power such as granting or withholding an injunction. (See Woollerton and Wilson Ltd. v. Richard Costain Ltd.

(1970) 1 All E.R.483·)

The defendant acquired the land shortly before building the offending wall for the purpose of building thereon a workshop to house his dry cleaning business. In the contention of Mr. Nicos Sampson, the attorney of the plaintiff in Cyprus, who looks after his property in his absence, he warned the defendant not to proceed with the building of the wall with no success as the defendant told him that he had the law in his hands, meaning apparently that he had obtained the necessary permit from the Municipality to build the workshop he had in mind. Mrs. Frantzeskou, the tenant of the premises, gave an account of the circumstances under which she had been informed by the defendant of his impending plans to put up the wall, his request to assist him in the removal of the leaves of the windows of the plaintiff's house and the false story he told her to the effect that he had purchased the property of the plaintiff as well, a story made up apparently in order to mitigate the reaction of the tenant to his plans. The defendant denied all this and maintained that he was first informed of the objections of the plaintiff after putting up the wall; nonetheless his story is none too certain on the point. At one stage in cross-examination he admitted that he reported Mr. Sampson to the police for interfering with workers at work on the site, engaged [*83] in the removal of the window leaves. This in itself indicates knowledge on his part of the objections of the plaintiff, voiced through his representative, to his plans. I believe both Mr. Nicos Sampson and Mrs. Frantzeskou and find as a fact that defendant ignored the objections of Mr. Nicos Sampson to the erection of the wall, sought to steal a march on the plaintiff by putting up the wall as fast as he could in defiance to the rights of the plaintiff. As the defendant explained, he has so far incurred a cost of £1,752 for the acquisition of the land, the preparation of the plans, the laying of the foundations and the building of the obstructing wall. Mr. Nicolaides testified that the cost of the building, including preliminary expense, comes to a figure in the region of £880.

Learned counsel for the defendant raised as an issue in the proceedings the constitutionality of the provisions of section 50 of the Civil Wrongs Law and submitted that section 50 is unconstitutional. Further he submitted in the event of dimissal of the plea of unconstitutionality the Court should refrain, in the exercise of its discretion, from granting an injunction, damages being an appropriate substitute in the circumstances of the case. Logically one should first concern himself with the question of constitutionality and than debate the subject of an injunction for if the Court finds that section 50 is unconstitutional it might become unnecessary to proceed any further in the matter. For the reasons given later in this judgment, I find that s. 50 is not unconstitutional. [*84]

Therefore I propose to examine the question of the remedy or remedies appropriate in this case and then dwell on the question of constitutionality as a separate part of this judgment.

Injunction

The authorities consistently stress that the appropriate remedy for interference with one's right to ancient lights is an injunction unless the injury is (a) small; (b) capable of estimation in money; (c) adequately compensated by a money payment; and (d) the issue of an injunction would be oppressive to the defendant. (See Terzian supra.) In Polemites (supra) the Court subscribed to the proposition that a man ought not to be deprived of his property against his will or to have the value of his property diminished without an Act of Parliament, endorsing the view that an injunction is a highly appropriate remedy for interference with ancient lights. Elsewhere in the same judgment reference is made with approval to the following extract from the case of Sheffield Masonic Hall Company v. The Sheffield Corporation, (101 , Law Journal), Chancery Division,328:-

"Where a building has ancient lights on two sides, an adjoining owner is not entitled to build so as to interfere with such light on the one side, on the plea that there is sufficient light coming from the other side."

The same argument would be equally an answer, if not more so, to the submission of the defendant that plaintiff [*85] could open windows on the other side of the rooms. This possibility is no reason for withholding an injunction both as a matter of protection of plaintiff's rights and as a matter of justice between the parties. After all the plaintiff could make use of that side of his premises to improve daylight in his rooms, which was not very rich, if he so desired. What is at stake is the loss of the ancient lights admitted through the windows that have been blocked by the erection of the offending wall. In the case of Polemites reference is made to the nature of interference with ancient lights giving light to bedrooms and the magnitude of such interference. There, as in the present case, there was interference with ancient lights in respect of two bedrooms. I feel I can do no better than quote a passage from the judgment of the Court delivered by Hallinan, C.J.:-

"But in the present case two of the rooms are bedrooms, and if the interference of the appellant’s (1) building is allowed to continue it is difficult to see how the award of damages could compensate the respondents for such a gross interference with their enjoyment of these rooms....."

Further, one may quote with benefit a passage from the judgment of Buckley J. in Charrington v. Simons & Co. Ltd. (1970) 2 C.L.R. 257, 261 where he is reported as having said:-

"Plaintiff should not, of course be deprived of relief to which he is justly entitled merely because it will be disadvantageous to defendant." [*86]

This was said in the context of an action for a mandatory injunction for the protection of an easement for the use of a plot of land, the infringement being that the surface of path way was elevated contrary to an agreement between the parties.

In consequence of the erection of the wall the use of the premises as a dwelling house has been rendered highly uncomfortable, a fact that has serious repercussions on the continued use of the premises as a dwelling house as well as on its value. It is a gross interference with plaintiff’s rights, hard to estimate in money terms. Certainly the defendant cannot complain that an injunction that may be given will be oppressive for he embarked upon his venture fully aware of the facts of the case and contrary to the protestations of the plaintiff. That he may have gained an erroneous impression as to the implications of the building permit that had been issued by the Municipality is no reason for refusing an injunction. For the reasons already given, his conduct was high handed and totally unmeritorious. I feel no justice can be done to the plaintiff except by issuing a mandatory injunction. In accordance with Redland Bricks Limited v. Morris (1969) 2 All E.R. 576 (H.L.) a mandatory injunction must be precise in its terms and specific in

its directions. Hence the defendant is ordered to pull down that part of the Wall erected perpendicular to the house of the plaintiff

that obstructs the admission of light through the windows in the two bedrooms and the kitchen, shown on [*87] exhibit 2 . I shall suspend the operation of the injunction for one month to enable him to comply with the terms of the order of the Court. The demolition shall be such as to completely unblock the aforementioned windows in a way admitting daylight there through in the same way as before the building of the wall.

Constitutionality of s. 50 of the Civil Wrongs Law, Cap. 148

The defendant raises, in what I may describe as an imprecise manner, the constitutionality of s. 50 of the Civil Wrongs Law, Cap, 148. Questions of constitutionality must be raised succinctly in the manner recommended by the Supreme Court in The Improvement Board of Eylenja v. Andreas Constantinou (1967) 1 C.L.R. 167· The party impugning the constitutionality of one or more of the provisions of an enactment must make specific reference to the article or articles of the Constitution against which such provision of the law offend. The issue of constitutionality must be raised precisely so much so that the Court should be able to compare by putting side by side the relevant enactment and the article or articles of the Constitution allegedly infringed in order to decide whether the law in question is either repugnant to or inconsistent with the provisions of the Constitution. (See Constantinos Chimonides v. Evanthia K. Maglis (1967) 1 C.L.R. 125.) The solemnity attendent to the raising of issues of constitutionality is warranted by the seriousness of the matter in issue for what the Court is required to do is to override the will of the legislature. In this case it is inferentially [*88] averred in the defence that inasmuch as s. 50 of Cap. 148 limits rights of ownership so much so that the owner of the servient tenement may conceivably be deprived of the right to utilize his plot for building purposes, it offends against the provisions of article 23.2 of the Constitution.

Learned counsel for the defendants dwelled at length on the nature of the right to ancient lights for reasons I find hard to comprehend. Article 23 of the Constitution protects property rights from certain kinds of interference. It matters not whether the right is over movable or immovable property inasmuch as article 23 applies without distinction to both.

Mr. Poetis argued that the right acquired under s. 50 is a right in personam. To my comprehension it matters not, for the purposes of article 23, whether the right over property is a right in personam or a right in rem. The crucial question is whether there is interference with the exercise of the rights envisaged in article 23 in the manner prohibited by the constitutional legislator.

I may mention in passing that to my comprehension the right to ancient lights is a right in rem in the sense that it is a right that runs with the land akin to the easement to ancient lights known to the English common law. Contrary to the submission of Mr. Poetis, not that the point is of any

consequence, the right to ancient lights is not destroyed by demolition and re-building. [*89] (See Clerk & Lindsell, On Torts, 14th Edition, paragraph 1453) In Theofanou Akama and Another v. Niki Ioannou Tsiakoli

(1987) 1 C.L.R. 206, Triantafyllides, J., as he then was, delivering the judgment of the Court dwelled at length on the background and object of s. 50, Cap. 148 and laid stress on the implications of s. 2(1 ) of the Civil Wrongs

Law on ancient lights and the decisions of the Supreme Court in Vassiliou v. Vassiliou, 16 C.L.R. 69 and Universal Advertising and Publishing Agency

v. Panayiotis A. Vouros, 19 C.L.R. 87. What emerges from the above case is that s. 50, Cap. 148 merely defines the circumstances under which interference with ancient lights can give rise to the tort of nuisance. It does not purport to create an easement nor does its incorporation in Cap. 148 exclude the existence at common law of any easement in connection with ancient lights.

A law can be declared unconstitutional only when it is made clear beyond doubt that its provisions can in no way be reconciled with those of the Constitution. This is a necessary safeguard in order to maintain a healthy balance between the legislative State power and the judicial State power and thus safeguard the supremacy of the legislature in its sphere; and its province is to legislate for the common good.

(See The Board for Registration of Architects etc. v. Kyriakides (1966) 3 C.L.R. 640.) It is not for the Court to enquire into the

wisdom of a piece of legislation nor scrutinize the motives of the legislature. (See, inter alia, Vrahimis v. The Republic

(1971) 3 C.L.R. 104; Matsis v. The Republic (1969) 3 C.L.R. 245.) [*90]

Questions of constitutionality are decided in abstracto though in rare cases evidence may be admitted on the implications of the enforcement of a given law in order to enable the Court to examine its contents in a real context.

The gravamen of the submission for the defendant is that s. 50, Cap. 148 imposes a restriction or limitation on the property rights of the owner of a building plot, a restriction that may conceivably amount to deprivation in the case of a small plot of land, a restriction or deprivation not warranted by the provisions of article 23.3 of the Constitution inasmuch as it is imposed for none of the purposes specified therein. He cited numerous authorities on the interpretation of the terms "deprivation, restriction, limitation", as encountered in article 23.2 of the Constitution in an effort to establish that section 50 does impose limitations and its application may conceivably amount to an act of deprivation. It is unnecessary to recite these authorities and many others on the subject for there is no doubt that the right to ancient lights imposes certain restrictions to the exercise of property rights of the owner of the servient land but not deprivation. (See Sofroniou and Others v. The Municipality of Nicosia and Others (1976) 6 J.S.C. 874.) The plaintiff answered this argument by submitting that article 23 is not concerned with the regulation of civil rights inter se that is the adjustment of competing rights of property owners but with restrictions, limitations and acts of [*91] deprivation resorted to for a public purpose. His submission is well founded, amply supported by authority. In Stelios E. Evlogimenos & 2 Others v. The Republic (1961) 2 R.S.C.C. 139 the Supreme Constitutional Court decided that s. 24, Cap. 224 (conferring rights of preemption) is beyond the ambit of article 23, being an enactment regulating civil law rights in property. The same approach was adopted and applied by the Supreme Court in Constantinos Chimonides v. Evanthia K. Maglis (1967) 1 C.L.R. p. 125 with regard to the provisions of the Depressed Tenants Law (Law 19/65). (See also Ali Ratip v. The Republic (1962) 3 R.S.C.C. 102.)

It is unnecessary and perhaps unwise to define the area of civil law rights. It is without any doubt that I have concluded that the right to analyse is a species of a civil law right. (See, inter alia, Christakis Christodoulou v. The Republic (1970)

3 C.L.R. 377 where it was decided that matters pertaining to boundary disputes fall outside the domain of public law.

In support of the view that article

23 is not intended to apply to matters relevant to the regulation of civil law rights one can point out that it is included in that part of the Constitution entrenching fundamental rights and liberties. Such protection is aimed at safeguarding certain fundamental rights from interference by the State and other public bodies and not from fellow citizens. If I had decided that article

23 applies to the regulation of civil law rights as well then I would have unhasitatingly held that there is warrant for an enactment such as [*92] s. 50, Cap. 148 in the provisions of article 23.3 where it is laid down that restrictions may be imposed inter alia "for the protection of the rights of others". A body of judicial precedent lays down that the provisions of article 23 should not be construed in a manner whittling down the power of the legislature to legislate over nultifarious subjects, being then selves the best Judges of the changing needs of society as a whole. (See, inter alia, Mallouros and Another v. Electricity Authority and Another (1974) 4 J.S.C. 441 ; Xenophontos v. The Police (In Re Vassiliades and Another) 1972, 3 J.S.C. 263.) Therefore the submission of unconstitutionality fails. Before leaving this judgment I may mention that I find no merit whatever in the suggestion that the action was improperly instituted.

Result

1 . The plaintiff has a right to ancient lights through the windows specified hereinabove.

2. The defendant is hereby ordered to pull down that part of the wall, perpendicular to the house of the plaintiff, at 1 Stavrodromi street, Larnaca, so as to remove every obstruction whatsoever from the windows giving daylight to two bedrooms and the kitchen, shown on exhibit 2. The demolition shall be such as to completely unblock the aforementioned windows so that daylight may be admitted therethrough in the same way as before the building of the wall. The enforcement of the order is suspended for one month. The defendant is ordered to pay [*93] costs on the scale of claims between £1,000 to £3,000 to be assessed by the Registrar.

Order for the demolition

of the wall. Order for costs as above.