·
Where a right to light is
created expressly and in wide terms, it
is very difficult to contend that a more restricted right was intended
As many developers
have found to their cost, rights to light can severely disrupt the most
carefully planned building schemes. In many cases, such rights have arisen not
as a result of having been expressly created, but due to the actual enjoyment
of light from neighbouring land over a long period. These can easily be
overlooked for the good reason that no documentary evidence exists to prompt
the unwary conveyancer. However, rights to light are often dealt with
specifically, and a recent case highlights the dangers of failing to appreciate
the ramifications of expressly created rights.
The dispute in Frogmore
Developments Ltd v Shirayama Shokusan Co Ltd [2000] 1 EGLR 121 arose
out of the redevelopment of the former County Hall in London. A complex series
of connected planning applications for various parts of the site were made in
the late 1980s and approved in 1991. At this stage, it was envisaged that the
development of two areas, the Riverside Building and the East Land, would
involve some physical interlinking. Riverside was to be converted into an hotel
and a conference and business centre, with some ancillary retail use. The
existing buildings on the East Land (sited well back from the road that divided
the site from the Riverside Building) were to be demolished and replaced with
an office building, the Belvedere Centre, which was due to be located much
nearer to the road.
However, the
original developer went into receivership, and the anticipated sale to it did
not take place. In 1991 the London Residuary Body (LRB) entered into an
agreement with the defendant. This was followed, in 1993, by the grant to it of
a long lease of the Riverside Building. In 1995 the freehold of a block of land
that included the East Land was sold to the plaintiff. Frogmore decided to
carry out a more limited redevelopment than that envisaged in the original
planning application. The existing buildings were not to be demolished, but,
rather, an additional new one was to be erected. While this would not impact on
as much of the Riverside Building as the Belvedere Centre would have done, its
impact on the part that would be affected was potentially greater. In
particular, it would significantly reduce the amount of light reaching that
part of Riverside.
The 1993 lease of
Riverside had expressly granted ‘the right to the free and unobstructed passage
of light and air to the premises at all times’. It also contained a reservation
of, among other things, a right to light and air in favour of the land retained
by the LRB (which, at that time, included the East Land) and of rights of
access to any service roads that might be built to link Riverside to the
Belvedere Centre. The lease also explicitly stated that neither the landlord
nor the tenant were to become entitled to any rights other than those expressly
set out in the schedules. When the East Land was sold to Frogmore, the LRB
expressly reserved rights to light across the land in favour of its retained
land, which included the freehold to Riverside.
Frogmore was
therefore left with the unenviable task of trying to argue that even though
Riverside had the benefit of an expressly granted right to light, and even
though its proposed building would diminish the light reaching part of that
building, it was still free to carry out its plans. It contended that the lease
to Shirayama did not define the amount of light to be enjoyed. Accordingly,
given the other terms of the lease, the pre-lease agreement, the circumstances
surrounding both transactions and commercial common sense, the express right
must be construed so as to give the defendant only so much light as would
survive the redevelopment of the East Land in the way contemplated (ie by the
construction of the Belvedere Centre) at the date of the lease.
Neuberger J’s
starting point was that the plain words of the defendant’s lease gave it an unqualified
right to light. So although its existing light could be diminished, it could
not fall below the level required for the ordinary use of Riverside. The
proposed building would infringe that right. However, he accepted that, in
principle, the apparently clear meaning of the lease could be affected in the
way argued for by the plaintiff.
He concluded that
the other terms of the lease contained nothing that would cause him to construe
the express grant of the right to light in a more restricted way. Notably,
there was no reservation to the landlord of a right to build on the retained
land in a way that would diminish any right to light or air. Courts are
reluctant to imply reservations, and especially so where a plaintiff’s attempt
to do so would reduce an express grant.
He felt that
neither the pre-lease agreement nor the surrounding circumstances altered the
position. While the existing planning consents envisaged the construction of
the Belvedere Centre, nothing precluded future applications for the independent
and unrelated development of parts of the County Hall site. Indeed, he felt
that the pre-lease agreement indicated that the parties did not expect the
existing permissions to be implemented. He was satisfied that his ruling that
the defendant’s rights would be infringed did not produce the commercially
absurd result suggested by the plaintiff. Shirayama had paid a large sum for a
building with an express, unqualified right to light that would be severely
affected by the proposed development. His conclusion did not mean that the East
Land could not be developed, merely that the present proposal was unacceptable.
