Right of light — Prescription — Prescription Act 1832 — Burden of proof — Whether plaintiff had discharged burden of proof that he had not submitted to or acquiesced in interruption to right of light for one year — Appeal by defendants allowed
was the owner and occupier of ‘Hillcot’, Crowborough Hill, Sussex — The
defendants were the owners and occupiers of the adjoining house ‘Highdown’ — In
1978, following the grant of planning permission, the defendants commenced
building works to construct an extension; at that time the plaintiff knew it
would be two storeys — There was a delay and construction of the walls did not
commence until September 1988, but by November 1988 they were up and the roof
was on causing an interruption to light enjoyed by the plaintiff — In early
1981 the plaintiff complained to the local planning authority about a proposed
revision of the planning consent and in July 1981 the plaintiff consulted
solicitors concerning the defendants’ use of a weedkiller, which had drifted
across the boundary — In February 1982 the plaintiff first consulted his
solicitors about the interruption to the light caused by the extension;
however, no communication of any kind was made to the defendants until the
action was commenced in August 1984
County Court Judge Coles QC, in giving judgment for the plaintiff, concluded on
the evidence that the plaintiff had not acquiesced in the interruption to the
right of light — The defendants appealed
prove that, at the time when he commenced the action claiming interruption to
the right of light the interruption had lasted for less than one year having
regard to section 4 of the Prescription Act 1832: see Presland v Bingham
— On the evidence, it was doubtful that it gave a solid basis for the
judge’s finding that the plaintiff objected to the defendants before consulting
his solicitor in February 1982 — The plaintiff failed to discharge the burden
of proof that he had not submitted to or acquiesced in the interruption — The
failure to communicate with the defendants over a period of
interruption of the plaintiff’s right of light — Discontent, not effectively
communicated to the other party, cannot amount to non-submission or
non-acquiescence
The following
cases are referred to in this report.
Davies v Du Paver [1953] 1 QB 184; [1952] 2 All ER 991; [1952] 2 TLR
890, CA
Glover v Coleman (1874) LR 10 CP 108
Presland v Bingham (1889) 41 Ch D 268
This was an
appeal by the defendants, Mr and Mrs Dennis Triplow, the owners and occupiers
of ‘Highdown’, Crowborough Hill, East Sussex, from the judgment of Judge Coles
QC given in Brighton County Court on May 8 1990, whereby she gave judgment for
the plaintiff, Mr William Dance, the owner and occupier of the adjoining
property ‘Hillcot’, for damages for interruption to the plaintiff’s right to
light.
Derek Holwill
(instructed by Cripps Harries Hall, of Heathfield) appeared on behalf of the
appellants; John Reddish (instructed by Cooper & Burnett, of Tunbridge
Wells) represented the respondent.
Giving
judgment, GLIDEWELL LJ said: This is an appeal against a judgment of
Judge Coles QC, given in Brighton County Court on May 8 1990, whereby she gave
judgment for the plaintiff for £3,400 damages.
The plaintiff
and his late wife (who died in 1986) were the owners and occupiers of
‘Hillcot’, Crowborough Hill, East Sussex. The defendants are the owners and
occupiers of an adjoining house, ‘Highdown’.
Hillcot is a
bungalow with a spare bedroom, in which the window at the side of the house
faces Highdown. In 1980 the defendants constructed an extension to their house
on the side adjoining the plaintiff’s bungalow, comprising a garage, a shower
room and an additional bedroom over — that is to say, it was a two-storey
extension.
The
plaintiff’s case is that this extension interfered with his right to light to
the window of the spare bedroom, which he had gained by prescription.
With that
brief account of the action, I turn first to the relevant law, most of which is
to be found in the Prescription Act 1832. Section 3, so far as material,
provides:
(i) Where the . . . use of light to and for any
dwelling house . . . shall have been actually enjoyed therewith for a full
period of twenty years without interruption, the right thereto shall be deemed
absolute and indefeasible . . .
By section 4,
the period of 20 years is the period (to use the language of the section) ‘next
before some suit or action’ — in other words, 20 years counting backwards from
the beginning of an action — and also, by section 4:
(iii) No act or other matter shall be deemed to be
an interruption within the meaning of the statute, unless the same shall have
been or shall be submitted to or acquiesced in for one year after the party
interrupted shall have had or shall have notice thereof . . .
The following
matters are common ground between the parties. The plaintiff’s bungalow,
Hillcot, was constructed at some time in the 1930s; Highdown some time after
the second world war. The defendants purchased Highdown in 1976 and the
plaintiff purchased Hillcot a little later in that year.
The action was
commenced by a county court summons issued on August 9 1984; therefore, the
relevant period of 20 years under section 3 is the period of 20 years
terminating on that date. It was found by the judge, and there is no dispute
about this, that the plaintiff’s light was obstructed and the easement of light
which potentially had arisen was therefore, in fact, interrupted in and after
November 1980, when the walls and roof of the extension to Highdown were
completed.
It followed
that the issue which had to be determined in the county court, and which arises
before us, is: did the plaintiff submit to or acquiesce in this interruption of
his potential light for at least one year so as to amount to interruption
within the definition in section 4(iii) to which I have referred?
The judge
found that the plaintiff had not submitted to or acquiesced in the interruption
and therefore gave judgment in his favour. The defendants appeal on three
grounds, which can be summarised as follows:
(1) The judge’s findings of fact were not
supported by the evidence.
(2) Alternatively, the facts as found by the
judge led to the conclusion, as a matter of law, that the plaintiff had
submitted to or acquiesced in the interruption.
(3) In particular, the finding of fact that there
was no expression of objection to the obstruction of the light to the
plaintiff’s window between the time when he instructed solicitors in February
1982 and the date of the commencement of the action in August 1984 could amount
only to submission or acquiescence.
I turn back to
another matter of law, which concerns the onus of proof in proceedings such as
this. It was established by this court in Presland v Bingham
(1889) 41 ChD 268 that if the interruption of light flowing to a plaintiff’s
property is of a permanent character, then the onus is on the plaintiff to prove
that, at the time when he commences the action, the interruption has lasted for
less than one year. That derives from the judgment of Cotton LJ at p 272 and
Lindley LJ at p 276 in that decision.
It follows
that if the interruption has, in fact, lasted for more than a year, the onus is
on the plaintiff to prove that he did not submit to or acquiesce in it. This is
conceded by Mr Reddish, for the respondent plaintiff, in this court.
On the law
relating to what constitutes submission or acquiescence, we have been referred
to two authorities: first, Glover v Coleman (1874) LR 10 CP 108.
In that case the plaintiff had, for over 20 years, enjoyed access of light to a
window of his workshop. The defendant erected a building adjoining, which
obstructed the light. The plaintiff, on several occasions, complained and
protested to the defendant about his light being restricted. Fourteen months
after the building had been erected the plaintiff commenced his action. It was
held in this court that it was open to the jury to find that the plaintiff had
not submitted to or acquiesced in the interruption for more than a year.
At p 119 Brett
J said:
Acquiescence,
according to my view, would mean not an active agreement, but what may be
called a tacit, a silent agreement, — a submission to a thing by one who is
satisfied to submit. The question for the jury, therefore, upon a suggested
acquiescence, would be, whether the plaintiff, although he has not specifically
agreed that the thing should be done, has submitted to it, and has been
satisfied to submit. Now, ‘opposition’, on the other hand, I should say would
mean dissent or dissatisfaction manifested by some act of opposition.
‘Submitted to’, in this part of the section, seems to me to be something
intermediate between a submission by one satisfied to submit and a
dissatisfaction manifested by some act of opposition. It seems to me that what
it means is this, — submission without satisfaction and without any direct act
of opposition, and although discontent be made apparent by some expression or
some act. If that be so, the question for the jury would be this, — Although it
be clear that the plaintiff did not submit to the interruption, being satisfied
to submit, nevertheless, did he submit, though with discontent, and though it
was made apparent? This would render
necessary an inquiry into the state of mind of the person who is said to have
submitted, and whether his state of mind was made apparent by either
expressions or acts. Here, we have the fact of the interruption existing, and
of the plaintiff not doing anything which amounts to active resistance. We have
strong intimations by him, not merely to persons about him, but to the person
who caused the interruption, that he was not satisfied to submit to it, —
complaints made more than once, and made in such a manner as to be described by
witnesses as amounting to protests. We have the fact that the interruption was
caused by the erection of a somewhat solid edifice, the fact that he did not
knock it down the jury might fairly say was not evidence that the plaintiff
acquiesced in or submitted to what the defendant was doing. Now, these
protests, coupled with the fact of the substantiality of the building put up by
the defendant, and taking into account that all took place within the space of
a little more than a year, and giving consideration also to what was the
condition in life of the plaintiff and to the fact that an action was commenced
immediately after the year, seem to me all together to amount to facts upon
which a jury might properly say that the plaintiff did not acquiesce in the
interruption of his right, in the sense I have suggested; and that, although he
did not more actively oppose it, and although in one sense he submitted, yet
that he submitted without satisfaction, and with discontent in his mind which
he made apparent to the defendant by acts or sayings which were a reasonable
mode of expressing his discontent, under the circumstances in which he was
placed. I am of opinion that there was evidence upon which the jury might
reasonably find that the plaintiff did not acquiesce, and that they might
reasonably find that he did not submit . . .
At p 121 Grove
J said:
Now, what was
that interruption? If the legislature
had said that there must be actual enjoyment for twenty years, without regard
to s 4, then the plaintiff undoubtedly had not that enjoyment, because for a
portion of that period he had ceased actually to enjoy the access of light. But
then comes the question, has he actually enjoyed it for the full period of
twenty years without such interruption as is contemplated by the 4th section of
the Act? The words of that section, as
applicable to this question, are, that ‘no act or other matter
unless the same shall have been or shall be submitted to or acquiesced in for
one year after the party interrupted shall have had or shall have notice
thereof and of the person making or authorising the same to be made’.
Therefore, unless this interruption has been submitted to or acquiesced in for
one year, it is not such an interruption as within the meaning of the statute
will prevent the enjoyment being ‘an actual enjoyment without interruption’.
Then we come to the words ‘submitted to or acquiesced in’. Now, the statute
does not prescribe any particular mode of resistance. The statute does not,
indeed, use the word ‘resistance’, although Mr Bosanquet in the course of his
argument used it as opposed to submission or acquiescence. There being, then,
nothing in the statute to guide us as to what shall be the nature of the
submission or acquiescence, that must necessarily be a question of fact — has
the party interrupted, by his words or conduct, submitted to or acquiesced in
the interruption, or has he resisted or protested against it? There are, no doubt, various modes of
resistance or of expressing dissatisfaction. I quite admit that mere grumbling,
or complaining to a member of his family, or expressing dissatisfaction to a
third person, would not be sufficient evidence of non-submission or
non-acquiescence to leave to a jury. But where protests are made to the party
causing the interruption — and we must, I think, take it that the protests or
complaints here which were made to the son, were made to a person who
represented the defendant, and were communicated by him to the defendant . . .
the matter for our consideration is whether there is any reasonable evidence
which ought to have been submitted to the jury, upon which they might have
determined whether the interruption was or was not submitted to or acquiesced
in by the plaintiff. I do not see how it can be other than a question for the
jury.
Following the
views of Brett J, in my view the difference between acquiescence and submission
is that a person acquiesces where he is eventually satisfied to submit to the
interruption. Submission occurs when the plaintiff is not content to submit,
but does not make his opposition to the interruption apparent directly. In
other words, in order to disprove ‘submission’, a plaintiff must prove both
unwillingness on his part to accept the interruption and that his opposition is
made clear to the person who is responsible for the interruption by some words
or act.
The more
recent authority is that of Davies v Du Paver [1953] 1 QB 184, a
decision of this court. The plaintiff and the defendant were the owners and
occupiers of adjoining sheep pastures. The plaintiff claimed, by long usage, a
right to pasture his sheep on part of the defendant’s land. The defendant erected
a fence to prevent this. While the fence was being erected, the plaintiff
protested vigorously and made it clear that he would bring legal proceedings if
the fence were completed. However, after the fence was completed, 13 and a half
months elapsed without any further protest being made to the defendant before
action started. The issue was: had the plaintiff submitted to or acquiesced in
the interruption of the right?
Singleton LJ
took the view that the absence of open protest for more than a year was fatal
to the plaintiff’s claim. Birkett and Morris LJJ upheld the county court
judge’s decision that there had been no submission to or acquiescence in the
interrruption. It is perhaps of no significance that the learned lord justices
came from, respectively, Cumbria and North Wales.
Birkett LJ at
p 203 said:
On the facts
of the case, it is clear that there was an interruption for one year after the
plaintiff had notice of the interruption. The important question is: did he
submit to it, or acquiesce in it, for one year after he had notice?
The judge
said that he had not found it easy to arrive at a conclusion, and I share his
view. The first strong fact is that for a full year after the plaintiff had
notice of the interruption nothing overt was done by him or his solicitors. The
fencing seems to have been finished by August 9, 1950, and the first protest
after that date was the issue of the summons dated September 27, 1951. The
question, easy to state but difficult to answer, is: Is the lapse of that 13 months
to be taken as conclusive evidence of ‘submission to, or acquiescence in,’ the
admitted interruption? After all,
‘submission to or acquiescence in’ is a state of mind evidenced by the conduct
of the parties, and I am of opinion that it was a question of fact for the
judge to decide on all the facts of the case, and that it was not to be decided
merely by saying that there was in fact a period of a year in which nothing was
done, without considering all the surrounding circumstances. This is not a case
under the Statute of Limitations. It is not a case where the words ‘a
reasonable time in all the circumstances of the case’ may be substituted for
the words of the statute. It is a case where a judge must decide as a question
of fact where there has been submission to, or acquiescence in, the
interruption for one year after the party interrupted had notice of the
interruption.
On July 6,
1950, the solicitors for the plaintiff threatened proceedings against the
defendant unless the interruption was removed; on July 28 they renewed their
protest; on August 1 they stated that they had instructed the plaintiff to take
such steps as he thought necessary to prevent further infringement; and then
nothing outwardly was done until September 27, 1951. I am of opinion that,
following the decision in Bennison v Cartwright*, it is a
question of fact whether these circumstances show a submission to, or
acquiescence in, the interruption for one year, despite the fact that one year
had admittedly gone by during which no outward protest was made or any other
action taken. The fact that there was a complete year in which the plaintiff
did nothing is some evidence that he had submitted to, or acquiesced in, the
interruption; but the fact also that he protested most strongly up to August
1950, and then actually took proceedings in September 1951, is some evidence
that he did not. It was a question of fact for the judge.
*Editor’s
note: Reported at (1864) 5 B&S 1.
Morris LJ said
at the bottom of p 207:
The fence was
completed on August 9. Could it be said that the plaintiff had submitted to, or
acquiesced in, the existence of the fence by that date? Having regard to the events that had
happened, and to the correspondence, I would have thought, had it been for me
to decide this question of fact, that the answer would be in the negative. The
parties were breathing fury on each side of a newly erected fence. Could it be
said that the challenging protests of the plaintiff must, as the August days
passed, be deemed to have signified nothing, and that his former claims and
assertions should be regarded as supplanted by submission and
acquiescence? As time went by, it might
well be that silence and inaction could be interpreted as submission or
acquiescence. But the date when submission or acquiescence begins must be
determined as a question of fact, having regard to all the circumstances. Had
there been a beginning by January 1, 1951, or by December 1, 1950, or by November
1, 1950? These are all questions of
fact. Unless it is held that there was submission or acquiescence by September
27 1950, there would not be a period of one year. The judge referred to Glover
v Coleman and stated: ‘On the evidence I hold that neither of the
plaintiffs submitted to or acquiesced in the interruption.’ This was a finding of fact which the judge
was, in my view, entitled to make, and accordingly I consider that the first
submission fails.
That last
passage in Morris LJ’s judgment makes it clear that he was saying in effect
that if a protest had been made up to the beginning of August 1950 and was
still effective so that it was clear to the defendant that the plaintiff was
protesting until a date after September 27 1950, that was sufficient on the
facts of that case. Thereafter, less than one year elapsed before the action
started.
I turn to the
evidence in the present case. It is right to start by saying that where the
evidence of the plaintiff conflicted with that of the defendants, the judge
preferred the evidence of the plaintiff. It was, therefore, her task to decide
whether the plaintiff’s evidence proved that he had not submitted for one year.
In December
1977 the plans for the extension of Hilldown were passed by the local
authority. It is not absolutely clear whether that means that building
regulation consent was given or planning permission — perhaps the former. In
March 1978 the district planning officer sent a letter to the other neighbour
of the defendants, giving notice of the application to construct the proposed
extension. He asserted that a similar letter had been sent to the plaintiff,
but the judge found as a fact that the plaintiff did not receive it.
In the autumn
of 1978 the footings of the proposed extension were laid. There was a
conversation between the plaintiff (or possibly his late wife) and the
defendants at which the plaintiff (or his wife) were informed that ‘the
extension would not concern us; it would only be a garage with a room over’.
However, the plaintiff said in cross-examination concerning this: ‘I knew that
it would be two storeys and would affect the light.’
After the
footings were laid, no further building work was carried out for the rest of
1978 or 1979 — or, indeed, until the summer of 1980. At that time building work
recommenced. By September the brickwork was well under way. In that month the
plaintiff appreciated that the extension would have a door and a window at
ground-floor level in the garage, facing towards his property. It transpires,
although he did not know it at the time, that the approved plan showed the door
at the rear and not facing towards the plaintiff’s property. There was a
conversation between the defendants and the plaintiff some time in September
1980, when the plaintiff protested about the lack of privacy which the door and
window would cause him. The defendants did not agree to move the door; instead
they submitted amended plans to the local authority to seek consent to retain
the door at the side of the property. But they did agree to meet the
plaintiff’s complaint to this extent, that they agreed to put opaque glass in
the window of the new garage (which they did).
By November
1980 the walls were up and the roof was on and so the interruption to the
plaintiff’s life commenced.
The plaintiff
gave evidence that at about that time an estate agent
light.
When the
plaintiff, in his evidence-in-chief, was dealing with the question of the door,
he said:
This is the
time I went to the solicitor as well. I complained about the window to the
planning officer and to Mr Triplow. I went on about the light.
In January
1981 there was a meeting of the planning authority to consider the revised plan
showing the door at the side of the building. The plaintiff had objected to
that and attended the meeting of the committee but was not allowed to speak (I
think to his annoyance) but a councillor made the comment that there was no
point in having a plan submitted in the first place unless the council were
going to adhere to it. However, despite that, it would appear that the amended
plan was agreed to by the planning committee.
In May 1981
the plaintiff applied for the rates on his property to be reduced on the ground
that the extension had devalued Hillcot.
In June 1981
the plaintiff complained to the defendants about a compost heap which the
defendants had made very close to the boundary with the plaintiff’s land. Also
in June 1981 the defendants used some strong weedkiller on their land close to
the boundary with the plaintiff and, according to the plaintiff in
cross-examination, the weedkiller incident broke down the relationship. It may
well be that that is correct and it was this incident which finally soured the
relationship between the parties. Certainly it seems to be the case that some
of the weedkiller drifted across the plaintiff’s boundary and covered some of
his plants.
On July 13
1981 the plaintiff consulted solicitors concerning the defendants’ use of the
SBK weedkiller.
In his
evidence-in-chief which, through no fault of counsel, was not given in the
chronological order which I am seeking to follow, the plaintiff said: ‘I told a
lot of people that the place was a monstrosity. I said this to Triplow. I said
‘How (the hell) much higher is it going?’ I had already been to the solicitors
when I said this. This was after the meeting of the council because it was
going up then over the door.’ That
really gives two possible dates for his saying that to Mr Triplow: sometime after
January 1981 (which was the meeting of the council at which the revised plan
had been considered) or, alternatively, after July 1981 when he went to see his
solicitor concerning the weedkiller incident — if the plaintiff’s recollection
in that respect was clear.
Later, under
cross-examination, he said: ‘I first went to solicitor about weedkiller . . .
The loss of light came afterwards when I went to the solicitors. That is when
that came up.’ He is also recorded as
saying: ‘No complaint re light to defendant because I went to lawyer’, which I
understand to mean that from the time he went to see his solicitors, or at any
rate when he went to see them about the light, he made no more complaints
himself to the defendants on that subject.
He said he had
a conversation with the defendants, when the first defendant was on the roof
and the plaintiff was in his garden, concerning the compost heap. He said he
pointed at the compost heap and said: ‘And that can go too.’ Later he said that the conversation with his
solicitors concerning light was at the beginning of February 1982 — indeed, it
can be seen from the plaintiff solicitor’s attendance note that that is
correct.
After the
plaintiff went to his solicitor to complain about loss of light, there was no
communication, either verbal or written, between him and the defendants
directly or by the plaintiff’s solicitor and the defendants, as to the loss of
light; there was no communication of any kind until action was commenced in
August 1984. During that time it is clear that the plaintiff was applying for
legal aid with a view to commencing proceedings, that various steps were being
taken with a view to obtaining evidence on which to base the action and that
eventually counsel was being instructed to settle the statement of claim.
During that
period, on April 11 1984, the plaintiff’s solicitor did write to the defendants
about another, but totally different, matter. The defendants had decided that
they wanted to replace a fence, which formed the boundary between the two
properties, with a wall. However, the plaintiff took the view that the fence
was on his land (as it probably was) and so his solicitor sent a letter to the
defendants warning them not to move the fence between the two properties. That
letter said nothing at all about interruption to rights of light.
I have already
rehearsed the plaintiff’s evidence as to when the question of right of light
was mentioned. In his re-examination, the plaintiff said: ‘I was told that
there was nothing I could do about the building — but I was going to do
something about it — six years only four conversations. Up to the weedkiller
(incident) there may have been other conversations. Prior to SBK just a few
moans about the extension. Moaned about dark — what it looked (like) — a
monstrosity. He said it’s mine and stopping . . . I said I’d like the damn
thing pulled down.’
In her
judgment, the judge outlined some of the passages in the evidence to which I
have referred. She formed a view of the plaintiff which she expressed in this
way:
As an
individual I consider that Mr Dance could be an obdurate and irascible person
and certainly not the sort of person who would concede any right that he might
have vis-a-vis his neighbours nor acquiesce in anything he does nor
agree with.
She said, in
relation to the meeting at the planning committee where the plan for the moving
of the door was considered:
Mr Dance
attended hoping to be able to make representations but was not permitted so to
do. I have no doubt at all that he was not acquiescing to anything but as far
as he was concerned obviously by this time the building was a fait accompli
albeit the tiles and the interior had not yet been constructed.
Later she
said:
He has said —
and I am sure it is true — that he was very angry about this construction, that
he called it and thought it was a monstrosity and affected his own property in
many respects.
She said that
the plaintiff sought a reduction in his rates because ‘. . . this extension had
caused his second bedroom to become darker, to become damp and cold and to
detract from his privacy’.
She referred
to the conversation about the compost heap in which she accepted the plaintiff
said: ‘And you can remove that too.’
She then
continued:
However,
there is no doubt in my mind that Mr Dance, once he appreciated the size of the
construction next to him at least as of November 1980 did nothing but complain
about one thing or another. He felt, because he had been told (we have not been
told by whom) that there was nothing he could do about the building itself that
nevertheless he would be determined to do what he could about its effects and
anything else that gave cause for action. The priorities it appears to me in
his mind with reference to this building were: first, his lack of privacy due
to the window and the door; second, what he considered was the damp caused by
the channelling of the weather between the two buildings; third, the reduction
of light into the second bedroom which, according to him, precluded his wife
from enjoying the afternoon sun and caused her to cease to use the room as a
sewing room so that it was subsequently transferred into a store room; fourth,
regarding other things: there was the element of the compost heap — that nuisance
being abated; there was, fifth, the weed killer incident and the results
thereof allegedly which he also pursued with vigour, that matter being dealt
with by his solicitors on July 15 1981 . . . and finally the wall . . .
Then, coming
to the end of the matters of February 1982, she said:
Having put
the matter in the hands of his solicitors Mr Dance said nothing to Mr Triplow
taking the view that this was a matter for his lawyers to deal with.
Mr Reddish
submits to the court that in various passages in the evidence, to which I have
referred, albeit perhaps not as clearly as he might have done, the plaintiff
was making it clear that he had complained to the defendants about the
interruption of his light; first, as to the passage in which he said: ‘I went
on about the light’. I agree with Mr Reddish that the phrase ‘I went on’ means
‘I complained on a number of occasions’. Of course, the occasions are
unspecified except that the plaintiff said: ‘This time I went to the solicitors
as well.’ The judge found that to be
incorrect; but if it has any relevance at all it places the time of the
complaint somewhere around the time when the plaintiff went to the solicitors
for the first time in June 1981. The same also applies to the phrase ‘How (the
hell) much higher is it going?’ because the plaintiff said that he had already
been to the solicitors but that he said that to the defendant.
As to the
comment of the judge that the building was a fait accompli, for my part
I do not regard that as the judge in effect saying that the plaintiff was
‘submitting’; on the contrary, I think what she meant was that the plaintiff
had recognised that he was unlikely to be able to ensure that the extension was
demolished, but he was going to take what steps he could to obtain compensation
resulting from it.
Mr Reddish
relies on the phrase ‘And you can remove that too’ as meaning ‘You can remove
that (the compost heap) too, in addition to the extension’ — which is no doubt
a rather sweeping assertion on the plaintiff’s part if he really did not think
there was any chance of getting the extension removed. But Mr Reddish relies on
that as being the expression of objection to the extension generally.
Moreover, in
the passage to which I have referred in which the judge summarised what she
described as being the various matters within the plaintiff’s mind and gave her
view as to the order of priority of the various complaints made as to the
defendants’ conduct; if that is in fact a summary of what the plaintiff had in
his mind she does not there find (although Mr Reddish submits it is clear she
was inferentially finding) that the plaintiff had complained about all those
matters, including, of course, the detraction from his light.
It is,
however, clear that at least one of these matters was not the subject of
complaint at all. I turn to the way in which, having summarised the evidence
and then correctly directing herself, the judge went back, in effect, in her
judgment, to her summary and conclusion and said:
It is
submitted by counsel on behalf of the defendants that there was positive
acquiescence. I reject that. I accept that the evidence indicates that Mr Dance
was aware by 1978 that a building was going to be constructed but he was
unaware of the extent and there is no evidence that he was going to lose light
in his second bedroom. To my way of thinking he never directed his mind to it.
I interpolate
to say I propose to make a first comment on that. Then follows what I shall
call subpara (2).
The judge
continued:
It is also
submitted that he did not complain in October 1980 when the application for the
amended planning permission went in regarding the extension itself. By this
time Mr Dance was accepting that this was a fait accompli. He objected
about the alteration of the door without planning permission; that objection
seemed to have no effect because the plan went through retrospectively.
(3) The fact that he accepted the offer of opaque
glass in the window opposite his premises, in my view, in no way shows that he
was acquiescing in the loss of light to the second bedroom.
(4) It is submitted that the same applies with
reference to his application to have the rates reduced. I do not concur. The
lack of light was one of the factors according to Mr Dance that was taken into
consideration when the local authority did indeed reduce the rates. That does
not in any way indicate, in my view, that Mr Dance was acquiescing in this
reduction of light; he wanted to make sure that this reduction in the value of
his premises was reflected in the amount of rates that he was going to pay and
I do not concur with the defendants’ counsel’s submission that there was no
complaint prior to the issue of proceedings about the interruption of light.
(5) He did complain I find as a fact albeit
complaint coupled with other matters both to various authorities and obliquely
and occasionally directly to Mr Triplow himself.
(6) Having put the matter into the hands of his
solicitor during the month of January or February 1982 he made no further
complaint because as he says ‘it was in the hands of my solicitors’.
(7) The facts I have found do not, in my view,
constitute acquiescence or submission and he was entitled having passed the
matter to a lawyer to consider that the complaint would thereafter be
diligently pursued on his behalf by him.
I have
inserted the numbering in order to be able to comment on those passages.
The first
passage — the finding that the plaintiff directed his mind to this — is
contrary to the plaintiff’s own evidence, to which I have already referred. As
to the second passage, there is no finding at that point in the judgment that
the plaintiff did complain or object to the defendant in October 1980 about the
effect on his light. There was a finding that all he objected to was as to the
door.
As to the
third matter, the agreement to put in opaque glass ‘in no way shows that he was
acquiescing in the loss of light to the second bedroom’ and the fourth matter,
namely application to have his rates reduced, not showing that he was
acquiescing in the loss of light — of themselves, those propositions are
correct, but to my mind they betray something which I regard as coming through
in this part of the judgment, and to which I will return later, that the judge
appears to be forgetting at that stage that she was dealing with an issue on
which the onus was on the plaintiff and not on the defendant. It is not
sufficient to say they do not prove that the plaintiff was acquiescing; the
issue was, had he proved, on a balance of probabilities, that he was not?
As to the
fifth matter, that is to say, ‘he did complain, I find as a fact, coupled with
other matters’, that is a finding of fact, but it does not specify the time to
which it relates. As to the sixth matter, the judge is merely saying that the
plaintiff’s reason for not complaining after February 1982 was because the
matter was in the hands of his solicitors.
In my
judgment, accepting as I do that the judge preferred the plaintiff’s evidence,
I have grave doubts whether his evidence gave a solid basis for the finding
that he did make objection to the defendants before he went to his solicitor in
February 1982. The judge, with respect to her, appears not at all times to have
borne in mind that the onus was on the plaintiff to prove this. In my judgment,
the plaintiff failed to discharge this burden and therefore failed to prove
that he did not submit or acquiesce.
I pass over
the second ground of appeal for the moment and deal with the third, which
concerns what happened after February 1982. It is common ground that there was
no complaint or objection made by the plaintiff, or his solicitor, to the
defendants between February 1982 and the date when the action was commenced;
even though there was a communication about the fence in April 1984. I accept
that if there had been evidence of strong complaint by the plaintiff
periodically up to, and shortly before, February 1982, it would and should have
been clear to the defendants at some time thereafter that the plaintiff was not
submitting or acquiescing. That is following the judgments in Davies v Du
Paver. But for how long after February 1982 should that have been
clear? Of course, Davies v Du
Paver does not answer that question, but the facts in that case were that
it was said to be clear for six weeks. Can it reasonably be said that it would
have been clear, and should have been clear, to the defendants on the material
to which I have referred for at least 18 months after February 1982 to some
date after August 9 1983 when there was less than a year to the date when the
county court summons was issued?
The judge made
no finding on that question. What she said was:
The facts I
have found do not in my view constitute acquiescence or submission and he was
entitled having passed the matter to a lawyer to consider that the complaint
would thereafter be diligently pursued on his behalf by them.
Well, it may
be that he was so entitled, and there may be valid reasons why the plaintiff,
having fallen out with the defendants, decided that the best course was for him
to keep his mouth shut. But, if no representations or objections were going to
be made on his behalf, what then is the position? The judge merely saying that ‘he had
understood’. Whatever the plaintiff may have intended — and I accept that he
did intend to carry his objection to the stage of commencing proceedings — the
approach of the judge to this wholly ignores the necessity for the plaintiff to
prove (if he has shown no submission) that he, or his solicitor, was in some
way making it clear that he was continuing to object.
In my
judgment, the failure to communicate with the defendants over a period of two
and a half years could be construed only as amounting to submission to the
interference with the plaintiff’s right to light. That is not a matter on which
the judge reached a conclusion and it is therefore for this court to make a
finding on it and I would so find.
For those
reasons to which I have referred, therefore, on the evidence before us I can
conclude only that the plaintiff has failed to prove that he did not submit or
acquiesce. I would allow the appeal and set the judgment aside.
Agreeing, BALCOMBE
LJ said: I add a few words on the point of general interest which arises in
this case.
‘Submission
to, or acquiescence in’ is a state of mind evidenced by the conduct of the
parties.
That is a
quotation from the judgment of Birkett LJ in Davies v Du Paver
[1953] 1 QB 184 at p 203.
To the like
effect is the judgment of Brett J in Glover v Colman (1874) LR 10
CP 108 at pp 119 and 120; and Grove J in the same case at p 122, where he says
(and this is a passage which Glidewell LJ has already quoted):
I quite admit
that mere grumbling, or complaining to a member of his family, or expressing
dissatisfaction to a third person, would not be sufficient evidence of
non-submission or non-acquiescence to leave to a jury. But where protests are
made to the party causing the interruption . . . the matter for our
consideration is whether there is any reasonable evidence which ought to have
been submitted to the jury, upon which they might have determined whether the
interruption was or was not submitted to or acquiesced in by the plaintiff.
The reason why
the state of mind has to be evidenced by conduct is not merely to establish the
existence of the state of mind — that could be established by the oral
testimony of the person whose state of mind was in issue — but so as to
establish that his state of mind was made known to the other party concerned.
Discontent not effectively communicated to the other party cannot, in my
judgment, amount to non-submission or non-acquiescence.
Judge Coles
dealt with the silence which lasted from at latest February 1982 and possibly
from as early as June 1981 by this passage in her judgment:
Having put the
matter into the hands of his solicitor during the month of January or February
1982 he [that is Mr Dance] made no further complaint because as he says, ‘it
was in the hands of my solicitors’.
The facts I
have found do not, in my view, constitute acquiescence or submission and he was
entitled having passed the matter to a lawyer to consider that the complaint
would thereafter be diligently pursued on his behalf by him.
That passage
goes only to Mr Dance’s state of mind and completely ignores the necessity for
communication to Mr Triplow.
Accepting that
acquiescence or submission is a question of fact for the judge to decide on all
the facts of the case, the period of at least two and a half years (and
probably more) before action was brought on August 9 1984 (which is the
relevant date for the purposes of the Prescription Act 1832) during which no
complaint was made makes it clear, in my view, that Mr Dance is unable to
establish that he did not submit to or acquiesce in the interruption of the
access of light to his bungalow for at least one year before action was
brought, and the judge’s finding to the contrary is, in my judgment, plainly
wrong. The effect of any complaints that may have been made before February
1982 must have worn off long before the action was brought. Davies v Du
Paver is clearly distinguishable on its facts. In that case there had been
strong complaints on July 6 and August 1 1950. The interruption was complete on
August 9 1950. Action was brought on September 28 1951. The majority of this
court there held that the judge was entitled to hold that there had been no
submission or acquiescence.
Birkett LJ
said at p 204:
The fact that
there was a complete year in which the plaintiff did nothing is some evidence
that he had submitted to, or acquiesced in, the interruption; but the fact also
that he protested most strongly up to August 1950, and then actually took
proceedings in September 1951, is some evidence that he did not. It was a
question of fact for the judge.
Where the
facts show, as they do in this case, a period of at least two and a half years
without complaint, there was simply no evidence to entitle the judge to hold
that there was no acquiescence or submission on the part of Mr Dance during the
relevant period.
Appeal
allowed with costs.
