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Forsyth Grant V. Allen Notes

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FORSYTH GRANT V. ALLEN FACTS This is an appeal by the claimant Mrs Marcia Forsyth-Grant against the judgment of H.H. Judge Harvey-Clark Q.C., given in the Southampton County Court on March 30, 2007 in an action for trespass and nuisance, arising out of the construction by the defendants of a pair of semi-detached houses on land adjoining the Hotel Picardie at Ventnor on the Isle of Wight, which is owned by the claimant. In 2002 or 2003, Mr Allen obtained planning permission for the erection on the site of two semi-detached houses which were built in 2006. They have been named Sunrise and Sunset---Sunrise being the house closest to the claimant's hotel. The judge described the overall building in his judgment as an attractive contemporary design with a pitched roof, balconies, decking and open plan rooms all overlooking the sea. The claimant, however, was bitterly opposed to the development. Apart from the boundary issue, the other matter of concern was the effect which the development would have on rights of light acquired by prescription in favour of the hotel. This was first raised not by the claimant but by Mr Michael Ney, a building surveyor specialising in rights of light who had been instructed by the architect supervising the development. He was of the opinion that it could have an adverse effect on any rights of light enjoyed by the hotel. In the action, the claimants sought damages and injunctive relief, both in respect of alleged trespasses and the alleged nuisance caused by the infringement of the rights of light. QUESTION That left the claim for infringement of the claimant's rights of light. In the Particulars of Claim the claimant originally sought damages for this, but the pleading was then amended to substitute for damages a claim for an account of all the profits which the defendants had made from the infringement of the claimant's rights of light. HOLDING Award of damages on a hypothetical bargain basis The other relevant line of authority concerns the court's power to award damages in lieu of an injunction. In Wrotham Park Estates Ltd v Parkside Homes Ltd (1974) 1 W.L.R. 798, Brightman J., in exercising the jurisdiction under what was then s.2 of the Chancery Amendment Act 1858, held that, in a case of breach of a restricted

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