As readers
will be only too aware, where a building enjoys the benefit of a right to light
across neighbouring land the ability to develop that adjoining land can be
seriously impaired. A right to light is a species of easement and, as such, is
impossible to discharge save by (expensive) negotiation. It is rare for rights
to light to be expressly created and they usually arise by prescription, ie by
actual enjoyment for a minimum period of 20 years. This means that landowners
need to be alert to the possibility that rights to light can be acquired simply
by the passage of time.
The legal
rules governing the acquisition of easements by prescription are horrendously
complex. There are three different yet potentially overlapping forms: common
law prescription; lost modern grant; and prescription under the Prescription
Act 1832. Rights to light are governed by the same rules as any other easement
under common law prescription and lost modern grant, but are subject to a
unique regime under the 1832 Act, to which the Rights to Light Act 1959 has
added a further gloss. All these arcane areas of the law fell to be considered
in a recent case — Bowring Services Ltd v Scottish Widows’ Fund &
Life Assurance Society [1995] 1 EGLR 158.
claim
The
litigation took the form of an application by the defendant to strike out the
plaintiff’s claim that its building in the City of London had a right to light
over land owned by the defendant, on the basis that it disclosed no cause of
action. The central issue for the judge concerned an obstruction notice under
the 1959 Act; however, since the plaintiff also based its claim on both common
law prescription and lost modern grant these also had to be eliminated for the
defendant to succeed. Both were readily disposed of. The common law rules were
inapplicable because the defendant could easily establish that the plaintiff’s
building could not have enjoyed a right to light since time immemorial (ie
1189) since the building was constructed only in the 1960s. This would not have
defeated a claim under lost modern grant, but these rules were held to be
inapplicable for a quite different reason, namely a custom of the City of
London. In the face of clear authority that such a custom does exist and that
it applies to both domestic and commercial buildings, Timothy Lloyd QC, sitting
as a deputy judge, had no hesitation in striking out that basis of the
plaintiff’s claim.
This left
the question of the claim under section 3 of the Prescription Act, which is
expressly stated to apply irrespective of any custom to the contrary. In order
to succeed the plaintiff needed to show 20 years actual use without
interruption by the defendant. Under the 1832 Act any interruption in the
enjoyment of the right claimed must be acquiesced in by the claimant for a
period of 12 months. This has the practical consequence that, where enjoyment
is interrupted after the claimant has already enjoyed 20 years’ user (or, more
precisely 19 years plus one day), the latter must issue his writ prior to the
expiry of that 12-month period (but, where necessary, after he has enjoyed the
right for 20 years).
The further
complication which had to be dealt with in this case arises from the nature of
the interruption. The old method of interrupting the enjoyment of rights to
light was by the erection of a screen. This was both unsightly and, once
planning controls were introduced, problematical. Accordingly, the 1959 Act set
up a scheme whereby an owner of the land across which the right is being
enjoyed can register an obstruction notice in the Local Land Charges Register.
This can be done only where the Lands Tribunal issues a definitive certificate
confirming that notice has been given to all those likely to be affected so
that the latter can bring any claim within the following 12 months.
The 1959 Act
also sets out a procedure for the issue of a temporary certificate in urgent
cases. However, even here, the temporary certificate must be followed by the
issue of a definitive one within a stated period (which can be no more than six
months). In the present case, the temporary certificate had set out a
time-limit of four months; this had been followed by the issue of a definitive
one within that period. The problem for the plaintiff was that it had not
issued its writ claiming the right to light until more than 12 months after the
original registration. However, since it had done so within 12 months of the
lodging of the definitive certificate, the issue for the judge was whether the
time-limit ran from the date on which the temporary certificate was first
registered, or only from the date on which the definitive certificate was
lodged.
The judge
was satisfied that, on a proper reading of section 3(2) of the 1959 Act, the
time-limit runs from the first registration. Furthermore, he was convinced that
this conclusion was reinforced by other factors. If the plaintiff’s view of the
section were correct (ie that the time-limit ran from the later date) this
would mean that there was no point in registering a temporary notice at all
since, in order to allow a claimant with a potentially indefeasible right (ie
one who has already enjoyed the right to light for at least 19 years) to bring
an action immediately following registration, section 3(4) adds a notional one
year on to his period of enjoyment (ie to make it up immediately to the 20
years required by the 1832 Act). Thus, in the very cases which the temporary
procedure is designed to cater for, ie where a period of 19 years’ user is
approaching expiry, so that registration is needed quickly, it would be of no
assistance if the 12-month time-limit did not run from that first date.
Although he recognised that his view of the scheme did mean that those
adversely affected by the registration of an obstruction notice might not know
about it until some time into the 12-month period, he felt that this was a
necessary consequence, but one which still left them with sufficient time in
which to make any claim.
a certificate
The final
point raised by the plaintiff was that both the temporary and definitive
certificates should not have been issued by the Lands Tribunal. It alleged that
there was little or no information on which the tribunal could have viewed the
case as one of exceptional urgency to justify the issue of a temporary
certificate and that adequate notice had not been given to all parties likely
to be affected in relation to the issue of the definitive certificate. The
defendant’s case was that the decision of the tribunal could be challenged only
by way of judicial review and that to attempt to do so in the present type of
proceedings was an abuse of process.
This
required the judge to delve into that difficult and complex area of the law
emanating from the decision of the House of Lords in O’Reilly v Mackman
[1983] 2 AC 237. It suffices for our purposes to say that this decision,
and the subsequent cases which have sought to explain and elaborate the
principle, establishes that where the matters in issue are wholly within the
ambit of public law, a party cannot evade the limitations placed on proceedings
by way of judicial review (notably the tighter time-limits and the requirement
that leave be obtained) by commencing ordinary civil proceedings.
In the
present case the plaintiff argued that, although it could have challenged the
issue of the certificates by way of judicial review, it was also free to do so
in these proceedings because the effect of the certification procedure was to
interfere with its private rights. This was not accepted by the judge. In his
view neither the issue of the certificate nor the registration of the
obstruction infringed private rights. The challenge to the certificate
therefore raised issues only of public law and should have been mounted by way
of judicial review.
