Easements – Right of light – Prescription – Section 3 of Prescription Act 1832 – Claimants claiming prescriptive right of light – Earlier conveyance authorising building on defendant’s land notwithstanding interference with light to claimants’ property – Defendant contending that light to claimant’s property consequently enjoyed by agreement or consent within proviso to section 3 so as to preclude prescriptive right – Construction of 1967 conveyance – Claim dismissed
The claimants owned the freehold of a nine-storey, 1980s office building in Birmingham. The defendant owned a property across the street that consisted of two buildings, one of which was 20 storeys high. Acting through their joint receivers, the claimants brought proceedings in which they claimed a prescriptive easement of light, under section 3 of the Prescription Act 1832, such as to prevent the defendants from developing their property in a way that would block light to the windows on the north-east facade of the claimant’s building.
The defendant contended that that the claimant’s enjoyment of light was “by some consent or agreement expressly made or given for that purpose”, within the proviso to section 3 of the 1832 Act, so as to preclude the acquisition of a prescriptive right. It relied on the terms of a conveyance of part of the defendant’s property made in 1967 by the Corporation of Birmingham, which was a predecessor in title of the claimant. The conveyance contained a clause that permitted building on the defendant’s land “notwithstanding that any such building may interfere with light or air now or at any time enjoyed by buildings being erected on any adjoining adjacent or neighbouring land owned by or vested in the Corporation”.
The claimants contended that, on its proper construction, the authorisation had continued only for so long as the Corporation had continued to own the claimant’s property. The defendant contended that the authorisation continued irrespective of who owned the property, both as a matter of construction of the clause and because it contained a covenant relating to “any land of a covenantor”, within section 79(1) of the Law of Property Act 1925, so as to be deemed to bind the Corporation’s successors in title.
Held: The claim was dismissed.
(1) The authorisation given to the defendant’s predecessor in title under the 1967 conveyance was intended to relate to the enjoyment of light by certain identified buildings or, more accurately, the apertures in those buildings. The words used in that clause were capable of identifying the buildings by reference either to the transient question of whether they lay in the ownership of the Corporation or to the more static question of whether the adjoining, adjacent or neighbouring land on which the relevant building was erected had been owned by or vested in the Corporation at the time of the 1967 conveyance. The latter construction was to be preferred. As a matter of language, and because it was the buildings and their apertures whose enjoyment of light was in issue, it was more probable that the words were intended to identify the buildings by reference to their physical status or location rather than by reference to their ownership from time to time. Where the words used were capable of bearing more than one meaning, the correct approach was to apply the construction that was most consistent with business common sense: Rainy Sky SA v Kookmin Bank [2011] UKSC 50 applied. It was unlikely that the parties to the 1967 conveyance had intended to deal with rights of light in such a way that the owner of the defendant’s property would have an indefinite right to build until such uncertain future moment when that property was transferred out of the Corporation’s ownership, followed by the possibility of another 20 years of uncertainty during which the prescriptive right of light might then arise. Although there might be instances in which commercial people deliberately contracted for an uncertain outcome, the Corporation and the defendant’s predecessor should not be taken to have intended that result in 1967.
(2) Consequently, the right to build on the defendant’s property was not limited to a right against the Corporation alone. The enjoyment of light by the claimant’s property had therefore continued to subsist by virtue of the permission granted by the 1967 conveyance, notwithstanding that that property was no longer in the ownership of the Corporation. It followed that the light had been enjoyed by some consent or agreement expressly made or given for that purpose, within the proviso to section 3, with the consequence that no absolute or indefeasible prescriptive right could arise under that section: RHJ Ltd v FT Patten (Holdings) Ltd [2008] EWCA Civ 151; [2008] Ch 341; [2008] 2 EGLR 11; [2008] 18 EG 128 considered.
(3) Section 79 of the 1925 Act added little of substance to the case. Although the relevant clause in the 1967 conveyance could be characterised as a covenant relating to any land of the covenantor, within section 79(1) of the Law of Property Act 1925, the presumption that such a covenant bound successors in title did not apply where a contrary intention was expressed in the wording and context of the instrument in question. An explicit expression of a contrary intent was not necessary; it was sufficient that the words were inconsistent with what was otherwise discerned as the true meaning of the instrument: Morrells of Oxford Ltd v Oxford United Football Club Ltd [2001] Ch 459; [2001] 1 EGLR 76; [2001] 04 EG 147 applied. Accordingly, the real issue remained whether the authorisation under the 1967 conveyance was intended to be personal to the Corporation.
Katharine Holland QC (instructed by Taylor Wessing LLP) appeared for the claimants; Michael Barnes QC (instructed by Nabarro LLP) appeared for the defendant.
Sally Dobson, barrister
