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

Development — Defendant proposing to redevelop site close to claimants’ property — Claimants complaining of interference with right to light — Whether infringement justified — Whether claimants entitled to injunction restraining defendant from erecting building — Claims dismissed The claimants were respectively the freeholder and the lessees of a central London property. The defendant had a long leasehold interest in a large site to the east of the property. The local planning authority granted planning permission, subject to conditions, for a comprehensive development of the site. The claimants applied for injunctions restraining the defendant from proceeding with the development on the ground that it would interfere with their right to light. Alternatively, they sought damages in lieu of an injunction. The judge allowed an amendment to the pleadings, which led the defendant to concede that the claimants had acquired a right to light. The question, therefore, was whether the right was enforceable against the defendant and, if so, whether the defendant would infringe it. An issue also arose as to whether the proposed development would constitute a nuisance because of the diminution in the minimum amount of natural light. The defendant contended, inter alia, that: (i) it had the benefit of a 1930 conveyance that overrode any right to light enjoyed by the area of land affected by that conveyance; (ii) section 237 of the Town and Country Planning Act 1990 applied to override any easement of light; and (iii) since all the rooms in the property were habitually lit by artificial light, a reduction in natural light was irrelevant. Held: The claims were allowed in part. The first claimant had acquired a right to light and had granted such right by deed to the second claimant. In any event, the wording of section 62 of the Law of Property Act 1925 was sufficiently wide to pass on rights in the course of being acquired, even if they were precarious. Accordingly, the claimants had established that a right to light would be infringed by the proposed development. However, because the 1930 conveyance specifically overrode the claimants’ right to light, their right over the area covered by that conveyance would not be infringed. The fact that the light enjoyed by the claimant would be diminished as a result of the proposed development did not in itself mean that the development constituted a nuisance. In the present case, no use was made of the natural light. However, one had to consider potentially varied uses. If the property enjoyed a right to light, any other reasonable use to which it could be put, and which might be diminished, should also be taken into account. In this case, a nuisance would arise in respect of the claimants’ right to light (save in those parts of the property covered by the 1930 conveyance). However, it was not appropriate for either claimant to obtain injunctive relief, since it would be oppressive to prevent the defendant from pursuing a worthwhile and beneficial development. The claimants were entitled to damages: Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, Colls v Home & Colonial Stores Ltd [1904] AC 179 and Jaggard v Sawyer [1995] 1 EGLR 146; [1995] 13 EG 132 considered. Per curiam: The purpose of section 237 of the 1990 Act was to facilitate the proper development of land by providing that easements and any other rights that might prevent such development were overridden and extinguished, subject to a right of compensation. The developer was primarily liable to pay compensation, but subsection (5) imposed an overriding obligation on the local authority, making them liable in default: Stockport Metropolitan Borough Council v Alwiyah Developments (1986) 52 P&CR 278 and Wrotham Park Settled Estates v Hertsmere Borough Council [1991] 1 EGLR 230; [1991] 22 EG 123 and [1991] 22 EG 135 considered. 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) appeared for the defendant. Eileen O’Grady, barrister