Midtown Ltd v City of London Real Property Co Ltd; Joseph and others v City of London Real Property Co Ltd

Right to light — Breach — Remedy — Development site — Dominant land subject to lease — Whether lessees acquiring right to light by grant or under section 62 of Law of Property Act 1925 — Whether agreement rendering precarious acquisition of right to light — Whether successor in title could rely upon section 237 of Town and Country Planning Act 1990 where development differing from that proposed at time of local authority acquisition or appropriation — Artificial light — Whether non-reliance upon natural light negativing nuisance — Whether claimants entitled to injunctive relief The claimants in these two claims, MT and KF, were, respectively, the owner of the freehold and the tenants under a lease of office premises. MT’s registered freehold title was subject to two leases: a lease granted in January 1978 for a term expiring on 6 August 2001, and a reversionary lease granted in March 1993 for a term commencing on the expiry of the 1978 lease and terminating in March 2018. Since 1982 and 1993, respectively, the two leases had been vested in trustees for KF. The defendant to each claim owned a large site on the opposite side of the same street, which it intended to redevelop. It proposed the demolition of the existing buildings and the erection of, inter alia, the “Triangular Building”. The claimants claimed the benefit of rights to light over the defendant’s property, and sought injunctive relief to restrain the erection of the building, or, alternatively damages. Because the defendant pleaded that KF could show neither 20 years’ enjoyment of light pursuant to the 1993 lease, since the term commenced only in August 2001, nor any grant of a right to light by the freeholder, KF contended that rights to light were being acquired during the course of the 1978 lease, and that these were capable of passing under section 62 of the Law of Property Act 1925. On the second day of the trial, MT granted to KF a right to light appertaining to the defendant’s property. The defendant claimed that it was entitled to erect a building on part of its property (the yellow land), notwithstanding any interference to the claimants’ rights, by reason of the terms of a 1930 conveyance and in reliance upon section 237 of the Town and Country Planning Act 1990. The yellow land had been acquired by the local authority in 1956 and had been appropriated for planning purposes. The defendant also submitted that any interference with natural light to the claimants’ property could not be an actionable nuisance because the occupation of the property relied upon internal artificial lighting at all times, and there was no reliance upon natural light. Held: The claimants were entitled to damages, but not to injunctive relief. The 1930 conveyance contained terms amounting to an agreement between the parties negativing the effect of prescription, as set out in section 3 of the Prescription Act 1832, in respect of the yellow land; the defendant was therefore entitled to interfere with rights to light over that land. Where a local authority or a successor in title wish to rely upon section 237, the proposed development must relate to the planning purpose for which the land had been acquired or appropriated. The defendant’s proposed development was not so related and it could not therefore rely upon that provision. On the evidence, there was an actionable nuisance to the rights to light over the defendant’s land, other than the yellow land. An actionable nuisance was not negatived because the claimants relied upon artificial and not natural light. The grant of injunctive relief would be oppressive; the claimants were entitled to damages. The following cases are referred to in this report. Attorney-General v Blake [2001] 1 AC 268; [2000] 3 WLR 625; [2000] 4 All ER 385, HL Bracewell v Appleby [1975] Ch 408; [1975] 2 WLR 282; [1975] 1 All ER 993; [1976] 1 EGLR 119; (1974) 237 EG 731, Ch Carr-Saunders v Dick McNeil Associates Ltd [1986] 1 WLR 922; [1986] 2 All ER 888; (1986) 53 P&CR 14; [1986] 2 EGLR 181; 279 EG 1359, Ch Colls v Home & Colonial Stores Ltd; sub nom Home & Colonial Stores Ltd v Colls [1904] AC 179, HL Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1; [1997] 2 WLR 898; [1997] 3 All ER 297; [1997] 1 EGLR 52; [1997] 23 EG 141, HL Fear v Morgan; Morgan v Fear [1906] 2 Ch 406, CA; [1907] AC 425, HL Fishenden v Higgs and Hill (1935) 153 LT 128 Foster v Lyons & Co Ltd [1927] 1 Ch 219 Gafford v Graham (1999) 77 P&CR 73; [1999] 3 EGLR 75; [1999] 41 EG 159, CA Gayford v Moffatt (1869) LR 4 Ch App 133 Halliard Property Co Ltd v Jack Segal Ltd [1978] 1 WLR 377; [1978] 1 All ER 1219; (1977) 36 P&CR 134; [1978] 1 EGLR 26; 245 EG 230, Ch Hendry v Chartsearch Ltd [1998] CLC 1382, CA Jaggard v Sawyer [1993] 1 EGLR 197, CC Jordan v Norfolk County Council [1994] 1 WLR 1353; [1994] 4 All ER 218; 93 LGR 50, Ch Kennaway v Thompson [1981] QB 88; [1980] 3 WLR 361; [1980] 3 All ER 329, CA Maridive & Oil Services SAE v CNA Insurance Co (Europe) Ltd [2002] EWCA Civ 369; [2002] 2 Lloyd’s Rep 9 Marlborough (West End) Ltd v Wilks, Head & Eve [1996] NLD 138 Pugh v Howells (1984) 48 P&CR 298, CA Pugh v Savage [1970] 2 QB 373; [1970] 2 WLR 634; [1970] 2 All ER 353; (1970) 21 P&CR 242; 213 EG 1535, CA R v City of London Council and another, ex parte Master Governors and Commonality of the Mystery of the Barbers of London (1996) 73 P&CR 59; [1996] 2 EGLR 128; [1996] 42 EG 156; [1996] JPL B125, QB Sheffield Masonic Hall Co Ltd v Sheffield Corporation [1932] 2 Ch 17, Ch Shelfer v City of London Electric Lighting Co Ltd (No 1); Meux’s Brewery Co v City of London Electric Lighting Co [1895] 1 Ch 287, CA St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1973] 1 WLR 1572; [1973] 3 All ER 903; (1973) 26 P&CR 444, Ch |page:66| Stockport Metropolitan Borough Council v Alwiyah Developments (1986) 52 P&CR 278, CA Tapling v Jones (1865) 11 HL Cas 290 Willoughby v Eckstein [1937] Ch 167, Ch Wrotham Park Settled Estates v Hertsmere Borough Council (1991) 62 P&CR 652; [1991] 1 EGLR 230; [1991] 21 EG 123; [1991] 22 EG 135; [1991] RVR 107; [1992] JPL 75, LT This was the hearing of claims by the claimants in each action, Midtown Ltd and Colin Joseph and others, against the defendant, City of London Real Property Co Ltd, in nuisance relating to rights to light. John McGhee QC and Jonathan Karas (instructed by Wragge & Co LLP, of Birmingham) appeared for the claimants; Paul Morgan QC and David Forsdick (instructed by Nabarro Nathanson) represented the defendant. Giving judgment, Peter Smith J said: Introduction [1] The claimant in case no HC04C02537 (Midtown) is the freehold owner of 43 Fetter Lane, London EC4 (the property). The property is let to Kendall Freeman, a firm of solicitors. The lease of the property is vested in the claimants in case no HC04C02549 (Joseph), who are four of the partners at Kendall Freeman and who hold it upon trust for the partnership. [2] The defendant is a member of the Land Securities group of companies. Through its associated companies, Cedric (New Fetter Lane) (No 1) Ltd and Cedric (New Fetter Lane) (No 2) Ltd, it has a long leasehold interest in a large site to the east of the property, on the other side of New Fetter Lane, known as the New Street Square site (the site). Subject to the fulfilment of a number of conditions, including the conclusion of a section 106 agreement, the local planning authority resolved to grant planning permission for a comprehensive development of the site on 27 April 2004. The defendant has recently commenced a soft strip of the buildings on the site and proposes to commence full demolition in January 2005, with the construction of new buildings on the site to commence in June 2005. [3] Midtown and Kendall Freeman claim that they have a right to light, acquired by prescription, to windows on the south-east side of the property that overlook the site, and that this right to light would be interfered with to a substantial degree if the proposed development on the site were allowed to proceed as planned. In particular, they object to the erection of one of the proposed buildings on the site, which would be immediately adjacent to the property on the east side of New Fetter Lane, referred to variously as “building A” or the “Triangle Building” (that being the shape of the footprint of the proposed building). [4] Midtown and Kendall Freeman seek injunctive relief to restrain the defendant from erecting the Triangle Building or otherwise interfering with their right to light through the windows on the south-east side of the property. Alternatively, they seek damages in lieu of an injunction. [5] The claim forms were issued on 3 and 4 August 2004 respectively. The claimants applied for summary judgment, but, on 13 September 2004, by consent, I made an order that the application be adjourned to a trial, and directions were made, in effect, for a speedy trial on the question of liability and the claimants’ entitlement to injunctive relief. The question of the quantum of any damages to which the claimants may be entitled if injunctive relief were to be refused was reserved to a separate enquiry after the trial. Claimants’ right to light [6] The claimants claim that their right to light had been acquired by prescription pursuant to section 3 of the Prescription Act 1832, which provides that a right to light to a building is “absolute and indefeasible” if it “shall be naturally enjoyed therewith for a period of twenty years without obstruction”. By section 4, the relevant period is the period immediately before the commencement of the claim. Accordingly, the claimants need show only that light through the south-east windows of the property has been enjoyed since August 1984. [7] The property was constructed in the late 1950s or early 1960s and does not appear to have been materially altered since then. There is evidence, however, only that the windows fronting New Fetter Lane have been there since 1982, when DJ Freeman & Co (now known as Kendall Freeman) took up occupation of the property. Claimants’ title to the property [8] Midtown is registered as the proprietor of the freehold title of the property under title no 410132. [9] Entry nos 6 and 7 on the charges register show that the freehold is subject to leases dated 12 January 1978 and 5 March 1993, registered under title no NGL 320354. The four claimants in the Kendall Freeman claim are the registered proprietors of this title. [10] The 1978 lease was made between Navcot Shipping (Holdings) Ltd and Lummus Co Ltd, and was for a term from 12 January 1978 to 6 August 2001. The 5 March 1993 lease was a reversionary lease made between Exceptbreak Ltd and Messrs Solomon Joseph and others (being the then partners in DJ Freeman & Co), in whom the remainder of the term of the 1978 lease was vested. It was for a term commencing on the expiry of the 1978 lease on 6 August 2001, itself expiring on 24 March 2018. Since 1982, the 1978 lease and, since 1993, the 1993 lease have been vested in four partners of DJ Freeman & Co, and subsequently Kendall Freeman upon trust for the partnership. [11] In para 8 of the amended defence in respect of the Kendall Freeman claim, the defendant contended that Kendall Freeman could not show 20 years’ enjoyment of light, since it could rely only upon enjoyment pursuant to the current 1993 lease, the term of which had commenced on 6 August 2001. The point was not taken by the defendant in the Midtown claim (for self-evident reasons, in that Midtown derives title to succession of the freehold title). [12] The argument is based upon the contention by the defendant that an easement of light must be annexed to an estate. The estate in question can be only the 1993 lease, which commenced on 6 August 2001. At the time of the expiry of the 1978 lease, there is no evidence to show the requisite 20 years’ user. Further, the 1978 lease is an underlease. Kendall Freeman does not assert an express grant of a right to light by virtue of the underlease derived from the freehold or head leasehold interest. Nor does it assert that the 1993 lease expressly granted any rights. If there were a right asserted to be granted by the 1978 lease, it would be necessary to know whether the freeholder of 43 Fetter Lane had acquired a right to light by that time, and it would also be necessary to know whether the freeholder had granted the right to light to the head lessee when it granted the headlease. No deduction of the title was produced at the commencement of the trial. [13] Further, the defendant submitted that any rights granted under the 1978 lease would have then ended on the termination of the 1978 underlease on 6 August 2001. [14] Kendall Freeman, in its reply, asserted that any rights that were in the process of being acquired under the Prescription Act by the time of the 1993 lease (but which had not by that time ripened into an absolute easement) would pass under section 62 of the Law of Property Act 1925 (LPA). The objection by the defendant to that assertion is that there is no evidence showing Exceptbreak’s known interest in the premises in 1993, and it is not known whether it had been a freeholder or a head lessee and, if a head lessee, what had been the date and the terms of such headlease. [15] This argument undermines the claimants’ argument claiming to rely upon the combined user under the two successive leases. Mr John McGhee QC pointed out, in the skeleton argument for the claimants, that the enjoyment of a light or any other easement by a tenant is in law the enjoyment of the landlord: see Gayford v Moffatt (1869) LR 4 Ch App 133, at p135. Further, the enjoyment of the right by a succession of tenants is sufficient: see Pugh v Savage [1970] 2 QB 373*, at p380G-H. This is also the case where a tenant’s interest is assigned from time to time and even where the interest is surrendered and a new lease is granted: see Fear v Morgan [1906] 2 Ch 406 and Morgan v Fear [1907] AC 425, at p429. All of that, of course, ensures that |page:67| Midtown, as freeholder, takes the benefit of the restrictive rights being acquired by the tenant interests derived from the freehold estate from time to time. It does not address Mr Paul Morgan QC’s point that Kendall Freeman needs to establish how it acquired the interest. It cannot rely upon the 1978 lease because that has expired, and, at the time of the 1993 lease, the freeholder was not in a position to grant any rights because the rights, on the evidence, had not by then accrued. Although it is true that the benefit of a tenant’s actions accrue for the benefit of the landlord, the converse does not necessarily appear to me to be the same. It is slightly artificial, but, nevertheless, for the tenant to establish the right it must establish either prescription in its own right by its user for the requisite period or, alternatively, acquisition of rights by prescription acquired by the landlord and by virtue of some grant by the landlord, unless rights in the process of being acquired can be passed under section 62 of the LPA: see below. —————————————————————————————————- * Editor’s note: Also reported at (1970) 213 EG 1535 —————————————————————————————————- [16] Mr McGhee therefore submitted that rights that were in the course of being acquired under the Prescription Act 1832 were quite capable of passing under section 62 and, thus, that any rights that were in the process of being acquired by the freeholder were passed by implication under section 62 on the occasion of the 1993 lease. He pointed to the ease with which rights to light are now capable of being acquired under section 3 of the Prescription Act 1832 after 20 years’ user, unless consent in writing is obtained. He referred me to an extract from para 18-165 of Megarry & Wade and part of the decision of the House of Lords in Colls v Home & Colonial Stores Ltd [1904] AC 179, at p205, and, further, a decision of Tapling v Jones (1865) 11 HL Cas 290, which shows that, in a case of easements of land, there is no presumption as to a grant. None of these authorities, with respect to Mr McGhee, seem to me to address the point of section 62. They merely show that after the requisite user (that is, of 20 years), the right to light, however precarious its existence beforehand, becomes absolute and indefeasible unless enjoyed by written consent or agreement. The authorities say nothing about the feature of any right in the process of being acquired. [17] Faced with this potentially fatal flaw to Kendall Freeman’s claim, Mr McGhee and his instructing solicitor obtained further documents of title from the Land Registry. These showed that the Midtown title (410132) was, from 13 November 1991, registered in Robert Maxwell Estates Ltd. The charges register (entry 6) showed the lease to Navcot Shipping dated 13 August 1974. A copy of that lease was also obtained from the Land Registry and had handwritten in it a lessee’s title number of NGL 248265. Notwithstanding that, and a similar noting that a copy of the lease to Navcot Shipping was thus registered, that title had never actually been registered. This much appears from the extract to Midtown’s title with edition date 3 February 1993. By the edition date of the title dated 16 April 1993 of Midtown’s title, the 1978 lease to Lummus is noted and shown as having the correctly registered title of NGL 320354, which title ultimately has vested in Kendall Freeman. Nevertheless, it is quite clear that, by the time of the 1993 lease, lessor Exceptbreak Ltd was registered with the freehold of Midtown’s title 410132, as edition date 16 April 1993 shows. There was therefore produced during the trial a continuity of the chain of the freehold titles and the leasehold titles as between the freeholders and the leaseholders of the claimants’ properties. [18] Thus, Mr McGhee was able to submit (if this were the case) that section 62 would be effectual to pass on the rights being acquired from 1982. [19] The claimants further fortified Kendall Freeman’s position. On 19 December 2004 (day two of the trial), Midtown and Kendall Freeman entered into an agreement whereby Midtown agreed to grant Kendall Freeman, as assignee, a right to light appertaining to the property. [20] Mr Morgan conceded, in his closing speech, that there was no doubt that Midtown had acquired a right to light in respect of the freehold of the property by 20 years’ user before the commencement of its action. It was therefore in a position to grant such a right to Kendall Freeman, and did so by the deed. [21] In the light of those documents, Mr McGhee applied to amend the Kendall Freeman action to claim in the alternative a right to light based upon this deed. That would be retrospective if granted to the date of the commencement of the action. At the date of the commencement of the action, of course, Kendall Freeman would have no such right by the deed because it did not then exist. Notwithstanding that, Mr McGhee cited a number of authorities (summarised in the Supreme Court Practice at para 17.3.5) that showed that, under the Civil Procedure Rules (CPR), the courts have allowed an amendment to introduce a cause of action arising out of facts occurring subsequent to the commencement of the proceedings. In Maridive & Oil Services SAE v CNA Insurance Co (Europe) Ltd [2002] EWCA Civ 369*, the Court of Appeal allowed such an amendment. In so doing, they followed an earlier Court of Appeal decision – Hendry v Chartsearch Ltd [1998] CLC 1382 – in which Evans LJ had said that the modern practice was that the court had a general discretion and should not be restricted by hard-and-fast rules of practice or of law. In Maridive, Chadwick LJ, in [54], said: There is no absolute rule of law or practice which precludes an amendment to rely on a cause of action which has arisen after the commencement of the proceedings in circumstances where (but for the amendment) the claim would fail. The court has a discretion whether or not to allow the amendment in such a case; a discretion which is to be exercised as justice requires… —————————————————————————————————- * Editor’s note: Reported at [2002] 2 Lloyd’s Rep 9 —————————————————————————————————- [22] Faced with those observations, Mr Morgan did not feel able to oppose the amendment, not submitting that there was any prejudice nor any other disadvantage that could not be dealt with in respect of these amendments. This was a realistic stance, given the fact that the claimants could have issued fresh proceedings based upon the grant and then would be in an incontestable position of showing that they had established a right to light. I allowed the amendment given Mr Morgan’s acceptance of these authorities, which are binding upon me, although I have some difficulty in dealing with the cases in the light of the retrospective effect of the amendment. This was a point that Goulding J proceeded on in the case of Halliard Property Co Ltd v Jack Segal Ltd [1978] 1 All ER 1219†, in which he declined an application to amend to rely upon a fresh ground of forfeiture (namely bankruptcy) when no notice under section 146 of the LPA had been served before the commencement of the proceedings. It is fair to say that the arguments proceeded on an assumption that the amendment would not be granted if such a notice were required because of the retrospective effect of the amendment. This authority used to be in the White Book under the Rules of the Supreme Court, but has since disappeared following the CPR. It was not cited in the case to which I have made reference, but, nevertheless, it does seem to me that the modern procedure should not allow a technical objection to deprive the court and one of the parties of an opportunity to have a merits-based decision on an issue. The objection to the amendment could have been only on technicalities and would not have prevented, as I have said, the claimant from bringing a fresh action based upon the deed. It would be a waste of the parties’ time and the court’s time to require that procedural technicality to be gone through when the court is already seized of the real issue between the parties, namely the infringement of the claimants’ rights. —————————————————————————————————- † Editor’s note: Also reported at [1978] 1 EGLR 26 ———————————————————————————————- [23] Had I not granted permission to amend, I would have, in any event, come to the conclusion that the wording of section 62 of the LPA is sufficiently wide to pass on (among other things) rights that are in the course of being acquired, even if those rights are precarious. [24] Nevertheless, as a result of the amendment, both Midtown and Kendall Freeman had established a right to light through the windows as alleged, and the question is, therefore, whether or not the defendant will infringe that right or have some other justification for the right not being enforceable against it. |page:68| Yellow land [25] The defendant claims that it has a right to erect a building on that part of the footprint of the Triangle Building that is coloured yellow on the sketch attached to the amended defence, even if it would interfere with the claimants’ rights. It claims that the right to cause such interference on two alternative bases, namely on the basis of the provisions of a conveyance dated 29 May 1930 and in reliance upon section 237 of the Town and Country Planning Act 1990. [26] As the masterplan showed, these arguments address a small part of one office on each of the seven floors of the property. The consideration of those two defences attracted the citation of numerous authorities, both under the relevant provisions and under the Human Rights Act 1998. Despite that, the points have been taken and have to be dealt with. 1930 conveyance [27] The conveyance dated 20 May 1930 was made between the Ecclesiastical Commissioners and the Lanston Monotype Corporation Ltd, and provides as follows: AND the Purchaser to the intent that the covenants hereinafter contained shall bind the said hereditaments into whosesoever hands the same may come for the benefit of the adjoining and neighbouring lands belonging to the Commissioners hereby covenants with the Commissioners in manner following that is to say: (1) That the Commissioners shall have full power at all times without obtaining any consent from or making any compensation to the Purchaser to deal as the Commissioners may think fit with any of the hereditaments adjoining opposite or near to the said hereditaments hereby conveyed and to erect or suffer to be erected on such adjoining opposite or neighbouring hereditaments any buildings whatsoever whether such buildings shall or shall not affect or diminish the light or air which may now or at any time hereafter be enjoyed by the Purchaser or others of the owners tenants or occupiers of the said hereditaments hereby conveyed or any part thereof (2) That the Purchaser will not do or suffer to be done on the said herditaments hereby conveyed or any part thereof any act matter or thing whatsoever which may be or tend to the annoyance nuisance damage or disturbance of the Commissioners or any of their lessees or tenants of their adjoining or neighbouring property. [28] I am satisfied that the benefit of that agreement extends to the site with the phrase that is being “adjoining opposite or neighbouring hereditaments” owned by the Ecclesiastical Commissioners. The plan annexed to the 1930 conveyance shows that they owned land directly facing the land conveyed and land to the east. I accept Mr Morgan’s submissions as summarised in his written submission, which shows a deduction of title that can be sensibly explained only on the basis that the Ecclesiastical Commissioners and then the Church Commissioners owned the site, and the benefit of the 1930 conveyance provision is now vested in the defendant as the current owner of the site. [29] Although the wording is somewhat unusual in that it is framed as a covenant, it seems to me that I must construe the effects of the agreement according to the purpose for which it appears to be intended. I do not think that it was intended to be a restrictive covenant as such, but was, in reality, an agreement in writing as between the owners of the respective properties that was intended to prevent the operation of section 3 of the Prescription Act 1832. There are many decisions on provisions of this kind; see, for example, Foster v Lyons & Co Ltd [1927] 1 Ch 219 and Willoughby v Eckstein [1937] Ch 167. It is quite clear that the parties intended the obligations to benefit the adjoining and neighbouring land of the commissioners and similarly to burden the land thereby sold subject to the provisions. The purpose of the provisions was to enable the Ecclesiastical Commissioners and their successors to redevelop the site, notwithstanding that that might interfere with (inter alia) the light then or thereafter enjoyed by the purchaser or others of the owners, tenants or occupiers of the site or any part thereof. It is clear, in my view, that the purpose was to allow development, even if it might infringe the light then being enjoyed. That is an agreement between the parties in writing negativing the effect of the prescription as set out in section 3 of the Prescription Act 1832. It shows that the yellow land had been granted rights to light over the retained land on the basis that, at any time, the owners of the retained land could interfere with them. That makes the rights permissive, and means that the rights cannot ripen into an absolute and indefeasible easement because they are enjoyed on terms that they can be terminated. [30] I reject Mr McGhee’s submissions that the arrangement is that of a restrictive covenant, since I do not believe that the true construction of the document leads to that conclusion. I agree with the analysis of the nature of these rights in the decision of Lightman J in para 5 of Marlborough (West End) Ltd v Wilks, Head & Eve 20 December 1996*. It seems to me plain that the rights covered by the 1930 conveyance are in the second category as referred to in that paragraph, namely a provision designed to authorise the servient owner at a future date to carry out works or to build as he pleases unrestricted by an easement of light and notwithstanding any resultant injury to the light enjoyed. —————————————————————————————————- * Editor’s note: Reportd at [1996] NLD 138 —————————————————————————————————- [31] Accordingly, I am of the opinion that, in respect of the yellow land, the defendant can rely upon the provisions of the 1930 conveyance to override any rights to light enjoyed by the area of land affected by that conveyance. Section 237 of the Town and Country Planning Act 1990 [32] That makes it unnecessary for me, technically, to consider the effect of the submissions made by the defendant asserting a right to override any easement of light affecting the yellow land by virtue of the provisions of this section. Nevertheless, as the point involves a consideration of an important matter of principle as to the effect of an appropriation or acquisition under that section, I will deal with that in this judgment. The section [33] Section 237 provides as follows: Power to override easements and other rights .-(1) Subject to subsection (3), the erection, construction or carrying out, or maintenance of any building or work on land which has been acquired or appropriated by a local authority for planning purposes (whether done by the local authority or by a person deriving title under them) is authorised by virtue of this section if it is done in accordance with planning permission, notwithstanding that it involves – (a) interference with an interest or right to which this section applies, or (b) a breach of a restriction as to the user of land arising by virtue of a contract. (2) Subject to subsection (3), the interests and rights to which this section applies are any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support. (3) Nothing in this section shall authorise interference with any right of way or right of laying down, erecting, continuing or maintaining apparatus on, under or over land which is – (a) a right vested in or belonging to statutory undertakers for the purpose of the carrying on of their undertaking, or (b) a right conferred by or in accordance with the electronic communications on the operator of a telecommunications code network. (4) In respect of any interference or breach in pursuance of subsection (1), compensation – (a) shall be payable under section 63 or 68 of the Lands Clauses Consolidation Act 1845 or under section 7 or 10 of the Compulsory Purchase Act 1965, and (b) shall be assessed in the same manner and subject to the same rules as in the case of other compensation under those sections in respect of injurious affection where – (i) the compensation is to be estimated in connection with a purchase under those Acts, or (ii) the injury arises from the execution of works on land acquired under those Acts. (5) Where a person deriving title under the local authority by whom the land in question was acquired or appropriated – (a) is liable to pay compensation by virtue of subsection (4), and (b) fails to discharge that liability, the liability shall be enforceable against the local authority. (6) Nothing in subsection (5) shall be construed as affecting any agreement between the local authority and any other person for indemnifying the local authority against any liability under that subsection. |page:69| (7) Nothing in this section shall be construed as authorising any act or omission on the part of any person which is actionable at the suit of any person on any grounds other than such an interference or breach as is mentioned in subsection (1). [34] The purpose of the section is to facilitate the proper development of land by providing that easements and any other rights that might prevent such development are overridden and extinguished, subject to a right of compensation. Under section 237(4), the compensation is assessed as though the rights were compulsorily acquired. Thus, the measure of compensation payable is the diminution in value of the interest affected and not, for example, by reference to a reasonable price that could be extracted for the giving up of the right: see Stockport Metropolitan Borough Council v Alwiyah Developments (1986) 52 P&CR 278 and Wrotham Park Settled Estates v Hertsmere Borough Council (1991) 62 P&CR 652*. —————————————————————————————————- * Editor’s note: Also reported at [1991] 1 EGLR 230 —————————————————————————————————- [35] It would seem that the words of subsection (1) enable a successor in title to claim the benefit of the section, and not merely the local authority. The developer is liable primarily to pay compensation, but there is an overriding obligation on the part of the local authority under subsection (5), making the local authority liable in default. [36] The yellow land was acquired by the City of London by a conveyance dated 4 April 1956. They were and are a local authority. The land was acquired for planning purposes, namely the planning purposes shown in relation to the redevelopment unit no 18, established by the City of London on 15 December 1955, in accordance with report of the improvements and town planning committee dated 22 November 1955. It was part of the regeneration of this part of London following war damage. The area of land acquired by the City of London was extensive. [37] The defendant contends that it is entitled to carry out development under the aegis of that acquisition as a successor in title. The appropriation initially took place under the Town and Country Planning Act 1944: see section 22, as amended by section 44 of the Town and County Planning Act 1947. That section in turn became section 181 of the Town and Country Planning Act 1962 and section 127 of the Town and Country Planning Act 1971. Nothing turns on this statutory chain of the requisite powers. [38] Section 246(1) of the Town and County Planning Act 1990 provides that: (b)… Any reference to the appropriation of the land for planning purposes is a reference to the appropriation of it for purposes which land can be (or, as the case may be, could have been) acquired under [sections 226 or 227]. [39] Those provisions deal with the power of the local authority to acquire land compulsorily (section 226) or voluntarily (section 227). [40] Under section 232, provision is made for land acquired or appropriated for planning purposes to appropriate it for any other purpose, subject to compliance with a procedure set out in that section. [41] The acquisition of the planning purpose occurred with the acquisition in this case by the 1956 conveyance. As the claimants have shown, the yellow land was appropriated in accordance with para 68 of the area no 1 City of London statement, and, as I have said, the purpose (as set out in para 69) was to redevelop to deal satisfactorily with extensive war damage, to secure improvements in the road pattern and to provide additional public open space and allow for the extension of the Guildhall. [42] A first review took place in 1960. It is clear by that review that the redevelopment was virtually completed: see para 19. There is no connection between the defendant’s proposed development and the original acquisition purpose, which was plainly fulfilled many years ago, and the proposed redevelopment. The yellow land is merely being redeveloped in an area that was previously acquired and redeveloped in accordance with that original acquisition. At first blush, there appears to be no justification to allow the defendant to rely upon an historical acquisition by the local authority many years before its acquisition and development proposals. It should also be appreciated that the claimants’ rights are established from 1982, that is, nearly 30 years after the appropriation took place. The right did not exist at the time of the acquisition. [43] The defendant relies upon the decision in R v City of London Council, ex parte Master Governors and Commonality of the Mystery of the Barbers of London [1996] 2 EGLR 128. In that case, the relevant authority acquired land piecemeal between 1954 and 1959. Some was acquired compulsorily, the other parts pursuant to purchase notice. Thereafter, the council granted the second respondent a building lease and it constructed a building on the site. In 1969, the council granted the applicants an area of adjoining land, and by the transfer covenanted not to interfere with light or air passing through any windows of the hall built thereon. Subsequently, the building leased to the second respondent was demolished, and planning permission was granted for a redevelopment of the site. The council contended that interference with the rights of light and air granted to the hall by the transfer in 1969 were overridden by section 237 by virtue of the acquisition of the land between 1954 and 1959, despite the lack of apparent connection between the original acquisition and the proposed redevelopment. Dyson J (as he then was) held that the council’s contention was correct. In so doing, Dyson J concluded that the words “for planning purposes” should not require the redevelopment to be linked to the initial purpose of the acquisition or appropriation. He determined that the words were quite general and were used to distinguish the case from one in which an acquisition was made for other purposes. He concluded that the concept of initial development followed by a cyclical redevelopment of the site was hardly esoteric and that if parliament had intended to apply a restriction to section 237 to the first development, very different language would have been required. He found support for that. He drew attention to the fact that development and erection by statute were extended to redevelopment and re-erection, and concluded that it must have been intended that a local authority should be able to develop a site that they had acquired for planning purposes from time to time whenever an occasion for redevelopment were to arise. He could see no rational basis for restricting the operation to the first development after acquisition or appropriation, since buildings become obsolete and have to be redeveloped from time to time, thus requiring the local authority to retain a power to override third-party rights from time to time. He therefore concluded that the local authority could rely upon section 237 to override rights that had arisen after the first redevelopment and that were not connected to it. [44] It is to be noted that there are two very important factual differences between the present cases. First, the local authority claimed a continuing right to control the development of their own land under the aegis for the purposes for which it had been acquired. Second, the local authority were intending to invoke the appropriation and still own the land in question. The facts therefore bear little relation to the present one, where it is not suggested that the local authority had considered this proposed redevelopment on the site as operating under the aegis of their initial acquisition. The evidence (such as there is) is that the local authority had simply granted planning permission for redevelopment in accordance with their existing planning policy. There is no evidence to show that they had invoked the basis for the acquisition of the yellow land after the second world war. Third, the development is completely unconnected with that original purpose for acquisition. It is clear (see the evidence summarised above) that the original purpose for which the land had been acquired had been satisfied by 1960. Fourth, the defendant had not acquired the yellow land from the local authority for the purpose of redevelopment in accordance with the historic appropriation. It had acquired it from a different person for the purpose of its own redevelopment proposals, for which it had sought and obtained planning permission in 2004. [45] There is an important part of Dyson J’s judgment dealing with the factual scenario (which, in his case, was hypothetical), but which is applicable to the facts before me. I refer to p130F of the judgment: |page:70| Mr Howell also submits that the wider construction of section 237(1) leads to unreasonable results, which cannot have been intended by parliament. He points out that the section applies whether work is done by the local authority or by a person deriving title under a local authority. He postulates a case where: (a) a local authority acquires land for a planning purpose, say, building a shopping centre, and builds the centre; (b) the local authority disposes of the centre to an owner in the private sector; (c) the new owner grants rights to various shopkeepers within the centre; (d) the new owner obtains planning permission for a development which will interfere with the rights which the new owner has granted. If the new owner can override the rights that he has granted to the shopkeepers in such circumstances, says Mr Howell, that is a result which is so unreasonable that it could not have been intended by parliament. This example also raises the second issue that arises in the present case, and to which I shall come shortly. But, leaving that aside, there are a number of comments to be made. As Mr Sullivan points out, first, the fact that an improbable factual example can be devised that would lead to an unexpected result is no reason to depart from the clear wording of an enactment. Second, having acquired the land for a planning purpose, and having built the shopping centre, it is unrealistic to assume that the local authority in question would not have retained any control over the rebuilding of the centre, not least because they would remain potentially liable to compensation claims under section 237(5). Third, if, in the circumstances of the example, the local authority considered it desirable that the shopping centre should be redeveloped and they granted planning permission for it, in order to bring the centre up to date and preserve its vitality, this would be entirely in accordance with section 237. In my view, there is force in these points. I am not persuaded by examples of the kind given by Mr Howell that the wider interpretation may lead to results which are so unreasonable that they could not have been intended by parliament. Mr Howell placed great emphasis on the fact that successors in title to the local authority can enjoy the fruits of section 237(1). I do not have to consider in the case whether, as a matter of construction, there are any, and if so what, limits to the application of section 237(1) to those who derive title under the acquiring or appropriating local authority. My provisional view is that, in order to attract the immunity conferred by the subsection, the work done (whether by the local authority or the person deriving title under them) must be related in some way to the planning purposes for which the land was acquired. That would explain why, even in cases where the work is done by a person deriving title under a local authority, parliament has decided that the local authority should have a contingent liability to pay compensation. This brings me to the final argument advanced by Mr Howell, which is based on the facts of the case. He submits that, since the land was acquired as being “immediately necessary in the interests of the proper planning of the area”, the planning purpose for which the site was acquired was the development that was recognised as being immediately necessary, ie the first development, and not any subsequent redevelopment. He relies on the resolution by the first respondents made on March 25 1954 to which I have already referred, and which spoke of the acquisition of the land as “immediately necessary in the interests of the proper planning of the area”. These words echo the language of section 38(2)(a) of the 1947 Act. The compulsory purchase order, however, makes no reference to the acquisition being immediately necessary in the interests of the proper planning of the area. It speaks simply of a purchase “for the purpose of securing the development, or redevelopment of the area”. This reflects the language of section 38(1)(a) of the 1947 Act. It may be that between the date of the resolution and the date of the compulsory purchase order, a development plan had become operative. At all events, it seems to me that I should look to the terms of the compulsory purchase order itself, rather than to the resolution that preceded it, to determine the purpose for which the land was acquired. There is nothing in the language of the compulsory purchase order that supports Mr Howell’s submission. Even if I am wrong about that, and the purpose for which the land was acquired was a purpose which was immediately necessary in the interests of the proper planning of the area, I would not feel able to accept Mr Howell’s argument. On this hypothesis, no doubt it would be right to say that some form of immediate development was necessary, and it was for the purpose of that immediate development that the land was acquired by the first respondents. There is, however, no reason to infer that the first respondents acquired the land only for the purpose of carrying out that immediate development, and not for the purpose, if necessary, of later carrying out redevelopment. In the absence of words making it clear that the first respondents acquired the site only for the purpose of carrying out the development that was immediately necessary at the date of acquisition, and no subsequent redevelopment, I would hold that the purposes for which the site was acquired are not to be construed in this restricted manner. [46] Mr Howell (who was in the position of the claimants in the present case) raises the same points as were raised by Mr McGhee in his submissions. It is to be noted that, in para J, Dyson J expressed a provisional view that, in order to attract immunity, the work done must be related in some way to the planning purposes for which the land had been acquired. That explains, he observes, why even in the cases where work is done by persons deriving title under a local authority, parliament has decided that the local authority should have a contingent liability to pay compensation. [47] In my view, if a local authority, or a successor of a local authority, wish to rely upon the power to override under section 237, where the land has been appropriated for a planning purpose, the proposed development, which they seek to impose upon adjoining owners, must be related to the planning purposes for which the land had been acquired or appropriated. In other words, I agree with Dyson J’s provisional view. That would apply to the situation whether or not the local authority were the owners at the time, or whether a successor was the owner. I accept, of course, that, in the case of a local authority, they would be able, under the statutory provisions set out above, to reappropriate the land for an appropriate purpose to facilitate the development (subject to complying with the statutory requirements and, of course, paying the compensation). Although I accept Dyson J’s analysis that the breadth of the section clearly intended a local authority (and their successor) to be able to redevelop or to continue to redevelop a site appropriated for planning purposes from time to time, I cannot believe (or accept) that that width extends to a development taking place that is unconnected with the original appropriation purposes by a developer that is merely a successor in title to the original local authority. For that submission to be correct, for example, it would mean that, many hundreds of years in the future, a developer could override rights that came into existence long after the original appropriation and long after the purpose of the original appropriation had been disposed of. I do not see that the appropriation can, in effect, lie in the ground to be available to spring forth fully armed to enable a future developer to pick it up when its development has no causal connection or relevance to the appropriation. [48] Accordingly, in my opinion, on the facts of the present case as summarised above, I do not accept that the defendant can rely upon section 237 of the Town and Country Planning Act 1990 to redevelop the site and to override the easements of light in respect of the yellow land. Human rights [49] My findings under the 1930 conveyance and section 237 of the Town and Country Planning Act 1990 mean that any determination under the Human Rights Act is irrelevant. I do not propose to add to the length of this judgment by deciding the matter on human rights issues, bearing in mind the vast welter of authorities that were cited, the academic purpose of such an analysis in the context of my decision and the modest area of land affected thereby. I mean no discourtesy to counsel, who submitted lengthy and detailed arguments on this, but I see no advantage gained in expressing what will be an obiter view on a fact-based human rights issue. [50] I therefore determine that, save in respect of the yellow land, the claimants have established rights to light and that the defendant’s development of the site will affect those rights. I go on now to consider the extent of the infringement and what remedies, if any, ought to be awarded to the claimants for the infringement of such rights. Amount of infringement [51] The claimants both retained Mr Ian Absolon BSc MRICS, of Schatunowski Brooks, to act for them and the defendant retained Ms Delva Patman FRICS ACIArb, of Delva Patman Associates. Both are experienced light experts. Both assessed each room on the property by computer calculation, to calculate the amount of each room that received a light level of 1 lumen psf at a set working plane of 2ft 9in (830mm) taken at desktop height. One lumen per foot is the amount of light that is required for someone to be able to read without artificial light on an ordinary overcast day. The whole dome of the sky produces |page:71| 500 lumens, so that 1 lumen may also be described as 0.2% of the available sky. The combination of these points about a room is described as the 0.2% sky-factor contour line. [52] The experts agreed the 0.2% contour for each room, which described the line in a room where an individual, when seated, would pass from being able to discern print by natural light to a position where artificial lighting would be required at a level of 2ft 9in above the floor level. They agreed the plans, and on the plans the area shown by the red contour is the existing 0.2% line, the area shown by the green the proposed 0.2% line, and the position blue (which, for the reasons I have set out above, is not relevant) generated by the proposed development on the yellow land as a separate indication. Agreed appendix B has a table showing the existing percentage of the room, which has the minimum level of light requirement and the corresponding percentage in the event that the development at the site takes place. The reductions as regards available light are very large. Generally, all the reductions reduce the percentage of the room to single-figure percentages from percentages in excess, on average, of 50% plus. One further factor is that one room on each floor has the benefit of double window light. In Sheffield Masonic Hall Co Ltd v Sheffield Corporation [1932] 2 Ch 17, Maugham J determined that where a room had light from another source, which could also be potentially interfered with (but not by the defendant), the amount and interference permitted by the defendant is only that available after an assumption that the light passing into the other window has similarly been interfered with. Mr Morgan accepted that authority as being one that I should follow, but reserved the right to challenge its correctness in the event that his client were to choose to appeal my decision. [53] One test applied regularly as to whether a room is adequately lit is the so-called 50:50 rule. A room is considered adequately lit where 50% of the room is adequately lit for the purpose as set out above. The majority of the rooms presently pass this 50:50 test, but if the development were to proceed, one room only of the ground to sixth floors will still satisfy that test. These rooms however, have that light level only by reason of the non-application of the Sheffield Masonic test. Thus, all rooms, if the development proceeds as contemplated in respect of the Triangle Building, will be inadequately lit on the 50:50 test. [54] The defendant accepts that the construction of building A on the triangle will result in a diminution in the light to the windows of the property. The triangle, as I have said, is only part of the defendant’s proposed development. Infringement a nuisance? [55] It is well established that the fact that light enjoyment by the relevant windows is diminished as a result of the proposed development does not itself show that the development constitutes a nuisance. The question to be posed is not what light is taken away, but what light is left, and whether the light is sufficient for normal purposes according to the ordinary notions of mankind, having regard to the purposes for which the building was designed and the nature of that design: see Colls. [56] Despite the apparently depressing effect of the agreed statement, which shows a substantial diminution of the minimum amount of natural light to all the offices on the property, Mr Morgan, with characteristic boldness, submitted that given the locale, one should not address this effect solely by reference to natural light. [57] His argument was as follows. All the rooms on the property are habitually lit by artificial light whenever they are used. That has been the case as long as the present buildings have been in place and, according to the evidence of Kendall Freeman, would be the position in the future if any refurbishment were to take place. This is reinforced, Mr Morgan submitted, by the fact that the internal rooms, which receive no natural light whatsoever, are illuminated constantly by artificial light. This is despite the fact that those rooms are used by typing and ancillary staff, who would be working in circumstances where it is probably more important for them on a traditional analysis to have as much natural light as possible. Not unsurprisingly, the higher one’s status is within the firm, the bigger a window that person receives. None of Kendall Freeman’s witnesses showed that they needed natural light for the purposes of using the rooms. Further, none of them showed that, in any realignment or redevelopment, they would depart from that practice. Mr Morgan submitted that this is in line with modern office practice, where it is preferable to provide a constant level of light that is unchanging, and this can be achieved only by permanent artificial light. That, he submitted, is why Kendall Freeman never use the offices with the lights off. [58] Mr Morgan produced a guide issued by the Chartered Institute of Building Service Engineers, namely Lighting for Offices. He submitted that, in accordance with that guide, these rooms, in modern practice, will always require artificial light, and that is demonstrated by the present and prospective user. Given that, reduction of natural light is irrelevant if the lighting is really provided by the artificial light. He pointed out that this is the practice in modern offices, and he was reinforced in this submission, he contended, by the fact that there had never been any light dispute in the City (where an injunction has been sought) because everybody knew this was the practice. [59] He also submitted that the time had come to recognise this “real” situation, and to dispense with rigid and unhelpful rules that had been devised in the past, such as the 50:50 rule. [60] He also submitted that one should not confuse the amount of light required for a task with the visual purposes of providing a view and increasing the general brightness of a room. Windows serve those purposes, but the only relevant purpose of the window is the third possible purpose (identified in para 3.1.2 of the report), namely task illumination. [61] There are a number of potential difficulties about this submission. First, it would mean that there would never be a successful challenge to an infringement of light because it could always be said that no matter how much actual light is taken away, it will always be possible to fill the gap with artificial light. It is well demonstrated by the fact that the rooms in the property that have no natural light are illuminated to the same standard by the constant electrical lighting as those that have a natural light. No such argument, so far as I am aware, has ever been put successfully or otherwise in any light case. Second, it undermines, in my view, the potential advantages that might appertain on a particular case for natural light, which varies and might be better for specified tasks. The report itself (para 3.1.2) identifies that the natural variation of daylight was valuable. [62] I was troubled about this submission because it was not supported by any kind of expert evidence. Further, it does not take into account potentially varied uses. If the property has a right to light (as is the case), any other reasonable use to which it would be put, which might be diminished, should also be taken into account. In the instant case, in practical terms, no use is made of the natural light. It is not impossible, however, for the site to be redeveloped in a way that incorporates more use of the natural light. If that were to take place, that would have an effect upon Midtown’s use and enjoyment of its freehold title. Third, the lack of challenge in the City might simply be that most people adopt a pragmatic view, whereas the claimants in this case are not willing to bargain away their rights, but wish to insist upon them being enforced. It would not be appropriate to require their rights to be bargained away if they did not wish to do so. One always has to be alert to ensure that developments do not override rights simply by expropriation. [63] I have sympathy with the submissions. It may well be that, in an appropriate case, it is a right basis for challenging assumptions that have taken place as regards the preference of natural light to artificial light. However, on the evidence before me, I am not convinced that such a submission can be made out to challenge the case on the basis of no infringement. It does not follow, however, that the submissions cannot be used for arguments based upon remedy, that is, refusing an injunction. I can see considerable force in that regard, and I will revert to that further in this judgment. [64] Given the agreed statement and the rejection of Mr Morgan’s submission, I conclude that there will be a nuisance, as in respect of the |page:72| claimants’ rights to light, if the triangle is developed as building A (save in respect of those parts covered by the 1930 conveyance). Remedies [65] It is necessary to consider each claimant separately, in my opinion. Both seek as a primary remedy an injunction with damages in lieu of an injunction if an injunction is refused. Midtown [66] Midtown called one witness, Mr David Lamont, a director. He provided three witness statements. From that evidence and the cross-examination, I determine that the property was purchased by the claimants as a speculative investment. Midtown certainly, on his evidence, appears to have taken no serious professional advice as to its value or its developability. Midtown holds the property for the benefit of various (unidentified) individual shareholders scattered around the globe, with some in Northern Ireland. As Mr Lamont said, its purpose was to enable people with high net worth in order to invest to create wealth. Its only asset appears to be the property. [67] It is difficult to see how Midtown had any interest in the property other than purely financial. It plainly harbours plans to redevelop. These plans received an apparent rebuff from the council, although it is equally clear that Midtown received advice of some sort, paradoxically, to the effect that the defendant’s proposal at the site would enhance redevelopment prospects of the property. Mr Morgan was concerned to establish that, in reality, Midtown had put any redevelopment proposals on hold with a view to extracting money from the defendant against a supposed infringement of easements of light and would then subsequently seek to redevelop the property entirely anyway. This was denied by Mr Lamont, but I found the answers he gave to Mr Morgan’s questioning about their redevelopment proposals unconvincing. One of the examples of this was his inability to expand on a letter dated 30 June 2004, sent by planning experts, in effect on behalf of Midtown, to the planning department, about proposed developments of the property. It sought to pray in aid, for example, the defendant’s proposed development of the site. This reflected advice given by letter dated 18 June 2004, from Blue Sky Planning Ltd to Hughes McMichael, which (on a desktop analysis) apparently expressed the view that there would be a less than 50% prospect of successfully achieving planning permission for the scheme. No further exploration has apparently taken place, which Mr Morgan was rightly sceptical about. It seems to me (and I so find) that, in reality, Midtown does have redevelopment proposals and it has merely put them on hold for the duration of this litigation. Of course, any redevelopment proposals might involve the retention of the existing building, but this is extremely unlikely if the building can be demolished. The building is now old-fashioned by modern office standards. In my view, refurbishment of the offices is a last resort only. [68] If an injunction were granted, it would be unfortunate if the property was subsequently redeveloped and the windows, and the right enjoyed by those windows, were no longer used. An injunction would put Midtown in a very strong bargaining position vis-à-vis the defendant. Faced with that, Mr McGhee submitted that the defendant would be in a position to apply to the court for a discharge of any such perpetual injunction. I pointed out to Mr McGhee that Lord Hoffmann in Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1*, at p18A, had said: Mr Smith, who appeared for CIS said that if the order became oppressive (for example, because Argyle were being driven into bankruptcy) or difficult to enforce, they could apply for it to be varied or discharged. But the order would be a final order and there is no case in this jurisdiction in which such an order has been varied or discharged, except when the injuncted activity has been legalised by statute. —————————————————————————————————- * Editor’s note: Also reported at [1997] 1 EGLR 52 —————————————————————————————————- [69] Although that observation is obiter (and may even be per incuriam) – see p7 of the arguments and Jordan v Norfolk County Council [1994] 1 WLR 1353 – it shows the difficulties of granting a perpetual injunction in this case. Mr McGhee, in a final repost, submitted that it could be dealt with by an undertaking on the part of the claimants to agree to have any perpetual injunction discharged in the event that they no longer wished to use the easements of light protected by such an injunction. That, too, is fraught with difficulties to my mind. [70] Mr McGhee submitted that where a property right is infringed, the victim is entitled to an injunction virtually as of right. I agree that that is one factor that is to be borne in mind; namely that a person’s rights, if they genuinely need to be protected by way of injunction, ought to be given that protection. It is not absolute, however: see the overriding of contractual rights in Co-operative Insurance Society above. Also, an injunction has been refused, despite protests, when other rights have been infringed: see, for example, Bracewell v Appleby [1975] Ch 408*. Equally, injunctions have been refused where it was established that the person was plainly “only wanting money”: see Fishenden v Higgs and Hill (1935) 153 LT 128 and Gafford v Graham [1999] 3 EGLR 75. A case at the opposite end of this spectrum is the well-known Pugh v Howells (1984) 48 P&CR 298, in which the court ordered a building to be demolished where the development was speeded up to present the person with a fait accompli. Equally, in some cases, the failure to apply for interim relief can be a factor (although Mr Morgan did not argue that against the claimants here). —————————————————————————————————- * Editor’s note; Also reported at [1976] 1 EGLR 119 ————————————————————————————————— [71] Interestingly, in Colls, Lord MacNaghten said, at p193: But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the Court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament. On the other hand, the Court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money. Often a person who is engaged in a large building scheme has to pay money right and left in order to avoid litigation, which will put him to even greater expense by delaying his proceedings. As far as my own experience goes, there is quite as much oppression on the part of those who invoke the assistance of the Court to protect some ancient lights, which they have never before considered of any great value, as there is on the part of those who are improving the neighbourhood by the erection of buildings that must necessarily to some extent interfere with the light of adjoining premises. [72] This was followed in Fishenden, at p139, where the court declined an injunction in respect of an infringement of easement of light and awarded damages in lieu, even though the damages would be substantial. In Kennaway v Thompson [1981] QB 88, the Court of Appeal applied the principals of Shelfer v City of London Electric Lighting Co (No 1) [1895] 1 Ch 287 as to when a court would not grant an injunction for an infringement of light. Although Snell’s Equity suggests, in para 45-28, that this is a reaffirmation of a rule where there is a continuing nuisance, I do not, with respect, see how it can override the observations, in particular in the House of Lords in Colls, as applied in Fishenden (which authorities were also referred to in that relevant paragraph), when applied to easements of light. [73] The last word on the question of discretion to grant an injunction is Jaggard v Sawyer [1995] 1 WLR 269†. In my view, the judgments establish a willingness on the part of the courts to depart from the strict requirements of the four requirements set out in Shelfer in an appropriate case. That appears (for example) from the judgment of Millett LJ, at p286B, as follows: It has always been recognised that the practical consequence of withholding injunctive relief is to authorise the continuance of an unlawful state of affairs. If, for example, the defendant threatens to build in such a way that the plaintiff’s light will be obstructed and he is not restrained, then the plaintiff will inevitably be deprived of his legal right. This was the very basis upon which before 1858 the Court of Chancery had made the remedy of injunction available in |page:73| such cases. After the passing of Lord Cairns’s Act many of the judges warned that the jurisdiction to award damages instead of an injunction should not be exercised as a matter of course so as to legalise the commission of a tort by any defendant who was willing and able to pay compensation. In Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, 315-316 Lindley LJ said: “But in exercising the jurisdiction thus given attention ought to be paid to well settled principles; and ever since Lord Cairns’s Act was passed the Court of Chancery has repudiated the notion that the legislature intended to turn that court into a tribunal for legalizing wrongful acts; or in other words, the court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict.” And Buckley J said in Cowper v Laidler [1903] 2 Ch 337, 341: “The court has affirmed over and over again that the jurisdiction to give damages where it exists is not so to be used as in fact to enable the defendant to purchase from the plaintiff against his will his legal right to the easement.” The plaintiff is, therefore, in good company when she says in her skeleton argument (prepared when she was acting in person): “What Judge Jack has in effect done in his judgment is to grant Mr and Mrs Sawyer a right of way in perpetuity over my land for a once and for all payment. I do not understand how the court can have power to produce such a result as it effectively expropriates my property… Ashleigh Avenue is a private roadway and Judge Jack has turned it into a public highway. Surely he does not have the jurisdiction to do this?” It will be of small comfort to her to be told that the jurisdiction is undoubted, though it is to be exercised with caution. What does need to be stressed, however, is that the consequences to which the plaintiff refers do not result from the judge’s exercise of the statutory jurisdiction to award damages instead of an injunction, but from his refusal to grant an injunction. Lord Cairns’s Act did not worsen the plaintiff’s position but improved it. Thenceforth, if injunctive relief was withheld, the plaintiff was not compelled to wait until further wrongs were committed and then bring successive actions for damages; he could be compensated by a once and for all payment to cover future as well as past wrongs. Of course, the ability to do “complete justice” in this way made it easier for the courts to withhold the remedy of an injunction, and it was therefore necessary for the judges to remind themselves from time to time that the discretion to withhold it, which had existed as well before 1858 as after it, was to be exercised in accordance with settled principles; that a plaintiff who had established both a legal right and a threat to infringe it was prima facie entitled to an injunction to protect it; and that special circumstances were needed to justify withholding the injunction. Nevertheless references to the “expropriation” of the plaintiff’s property are somewhat overdone, not because that is not the practical effect of withholding an injunction, but because the grant of an injunction, like all equitable remedies, is discretionary. Many proprietary rights cannot be protected at all by the common law. The owner must submit to unlawful interference with his rights and be content with damages. If he wants to be protected he must seek equitable relief, and he has no absolute right to that. In many cases, it is true, an injunction will be granted almost as of course; but this is not always the case, and it will never be granted if this would cause injustice to the defendant. Citation of passages in the cases warning of the danger of “expropriating” the plaintiff needs to be balanced by reference to statements like that of Lord Westbury LC in Isenberg v East India House Estate Co Ltd (1863) 3 De GJ&S 263, 273 where he held that it was the duty of the court not “by granting a mandatory injunction, to deliver over the defendants to the plaintiff bound hand and foot, in order to be made subject to any extortionate demand that he may by possibility make, but to substitute for such mandatory injunction an inquiry before itself, in order to ascertain the measure of damage that has been actually sustained.” —————————————————————————————————- †Editor’s note: Also reported at [1995] 1 EGLR 146 —————————————————————————————————- [74] Similarly, the judgment of Sir Thomas Bingham MR (as he then was) to my mind indicates a willingness to refuse an injunction even though substantial damages are likely to be payable: see his approval of Bracewell, at p279, and his analysis of the damages at p283G. It is clear that he considered the damages small, but nevertheless, as a matter of principal, was plainly of the view that, in an appropriate case, an injunction could be refused when more than nominal damages could be awarded, assessed by reference to a reasonable price to be obtained for a relaxation of the rights. It is self-evident that, in some cases like that, the compensation is likely to exceed the first requirement of Shelfer that the damages be small. [75] Millett LJ summarised it, at p288H, as follows: In considering whether the grant of an injunction would be oppressive to the defendant, all the circumstances of the case have to be considered. At one extreme, the defendant may have acted openly and in good faith and in ignorance of the plaintiff’s rights, and thereby inadvertently placed himself in a position where the grant of an injunction would either force him to yield to the plaintiff’s extortionate demands or expose him to substantial loss. At the other extreme, the defendant may have acted with his eyes open and in full knowledge that he was invading the plaintiff’s rights, and hurried on his work in the hope that by presenting the court with a fait accompli he could compel the plaintiff to accept monetary compensation. Most cases, like the present, fall somewhere in between. [76] Looking at it from Midtown’s point of view, it seems to me that it is not appropriate for Midtown to obtain an injunction. First, it was interested in the property only from a money-making point of view. If the value of the property has been diminished, it can be compensated and is capable of calculation. Second, there is probably no present loss because of the existing lease in its favour, which will be unaffected by the infringement of the easements of light in respect of the windows. Third, it seems to me that it has in mind redevelopment proposals of its own, which would likely make the injunction academic. Fourth, I am quite satisfied, on the correspondence, that the defendant behaved reasonably and openly in flagging up the issue, and suggested meetings to discuss matters and were rebuffed unreasonably by both Midtown and Kendall Freeman. That appears clearly from the correspondence repeatedly addressed to both of them that went unanswered. I say nothing about negotiations because, of course, I have no evidence before me of any such negotiations having taken place. In addition, it would be oppressive to the defendant to be prevented from pursuing a worthwhile and beneficial development for that area (which might actually benefit Midtown). Mr Morgan accepted that if the remedy is damages only, part of those damages can possibly include a compensatory payment by reference to a reasonable price or possibly (and I say nothing about this for obvious reasons) based upon a sharing in the defendant’s profits, in accordance with the above cases and Attorney-General v Blake [2001] 1 AC 268. However, I have that for determination on the assessment of damages. [77] For all of those reasons, I reject Midtown’s claim for an injunction, and determine that it is entitled to damages to be assessed for infringement of its right to light. Kendall Freeman [78] Most of the above arguments are applicable to Kendall Freeman. It too, did not respond to the open approach by the defendant. Its rights, if infringed will suffer even less damage than those of Midtown. First, it has no clear capital interest that will be diminished in value. Second, the proposed development does not affect in any way its existing use of the property, nor, on the evidence, any use to which it will put it in the light of any refurbishment or redevelopment. Indeed, such refurbishment plans were produced, suggesting that there would be even larger open-plan areas with less access to natural light. [79] Kendall Freeman did produce a number of partners and employees who stressed, in their evidence, how valuable they regarded the natural light. Of course, such subjective views are not relevant in assessing objectively whether a right to light has been infringed: see Carr-Saunders v Dick McNeil Associates Ltd [1986] 1 WLR 922*, at p925. That authority, of course, provides good guidance as to the need to approach easements of light infringement with flexibility. Thus, Millett J rejected a rigid application of the 50:50 rule (see p927) and reiterated that the diminution also has to be assessed by reference to potential users to which the dominant owner may reasonably be expected to put the premises in the future. Thus, on a redevelopment, for example, as I have already said in regard to the Midtown issue, there may be a loss of opportunity for development that involves user of the natural light in a way in which it is not presently used. No such consideration, of course, applies to Kendall Freeman, since its evidence showed that it had no present or future intention to use the property in any way different from that in which it presently used it. Although the witnesses stressed, in vague and subjective ways, the advantages |page:74| of natural light as opposed to artificial light, they could not give any coherent answers to Mr Morgan’s cross-examination in that regard. What they were talking about was, in reality, the view and airiness, which are not factors that are relevant. I found the answer as to why they never worked with the lights off (because the switches were in a central bank) as being disingenuous. At one stage, Mr Morgan put to one of the witnesses that his evidence was “twaddle”. This, with hindsight, probably ought to have attracted an adverse judicial comment: see St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1973] 3 All ER 903, at p931 (cp the non-reference in the Weekly Law Reports). Nevertheless, I can well understand Mr Morgan’s frustration. I found the evidence of the apparent delight in the unused enjoyment of the natural light somewhat unpersuasive. The reality is that modern offices do use artificial light to maintain a constant light. However, for the reasons that I have set out earlier in this judgment that does not mean that that principle can be used to override a right to light in respect of natural light. It plainly does go, however, to an injunction and this is an additional factor, which I take into account against Kendall Freeman when I determine that it is not entitled to injunctive relief. The only factor missing from the Midtown analysis is Midtown’s future losses, potentially, when the present lease falls in. That is absent from Kendall Freeman’s position, but it is but one factor that counts against Midtown. It has no need for an injunction because the development on the site will not affect its current use and enjoyment of the property. I doubt whether it has suffered any capital diminution, and its damages will be limited, I would have thought (although I leave this question open), to the right to participate in the extraction of compensation for giving up rights as a measure of damages. This case is one that if I were to grant an injunction to Kendall Freeman, like Midtown, it would be oppression of the type that the House of Lords cautioned against in Colls and that features in later authorities, such as Jaggard. —————————————————————————————————- * Editor’s note: Also reported at [1986] 2 EGLR 181 —————————————————————————————————- [80] For all those reasons, I therefore decline to grant Kendall Freeman an injunction also. [81] It follows from the above that I will direct an inquiry as to damages. I will hear submissions as to the mode and forum of such an inquiry. One point that must be considered is how the damages (if any) based by reference to a reasonable price for release for the rights will be assessed. It seems to me that the defendant cannot be required to pay the same sum twice over to the claimants. It seems to me that there will be a one-off payment, to be divided between the claimants as they agree. If they cannot agree, the court will determine the proportionate share of the claimants by reference to their interest in the property. Of course, if the claimants separately can identify separate heads of damages that are attributable to their interests only, those will be claimable in addition. Claims allowed in part.