RHJ Ltd v FT Patten (Holdings) Ltd and another
Mummery, Lloyd and Lawrence Collins LJJ
Easement – Right to light – Appellant’s land previously let on terms reserving full right for landlord to build on adjoining land – Respondents owning adjoining land – Whether appellant acquiring right to light by prescription – Whether exception or reservation to make express reference to light – Whether reservation in lease amounting to “consent or agreement” precluding prescriptive right to light – Appeal dismissed
The appellant was the freeholder of an office building. The respondents owned a building and two car parks adjoining and opposite the offices. Until 1989, Liverpool City Council had owned all four properties. In 1980, the council had granted a 99-year lease of the appellant’s building on terms that reserved to the landlord the “full and free right” at any time to “build rebuild and/or alter as they may think fit… any buildings or bays or projections to buildings on any land adjoining the demised property and/or on the opposite sides of the adjoining streets and access ways”.
In proceedings between the parties, an issue arose as to whether the appellant’s property had acquired a right to light by prescription or whether the terms of the 1980 lease, reserving to the landlord the right to build on adjoining land, prevented such a right from arising. It was common ground that the appellant’s building had enjoyed 20 years’ light between the date of construction and the date of registration of a light obstruction notice under the Rights of Light Act 1832. However, the respondents contended that, as a result of the reservation in the 1980 lease, the light had been enjoyed “by some consent or agreement expressly made or given for that purpose by deed or writing”, within the meaning of section 3 of the Prescription Act 1832, such as to prevent the right to light from being deemed absolute and indefeasible under that section. The matter was determined as a preliminary issue. The appellant contended that a consent or agreement for section 3 purposes had to refer to light expressly.
Easement – Right to light – Appellant’s land previously let on terms reserving full right for landlord to build on adjoining land – Respondents owning adjoining land – Whether appellant acquiring right to light by prescription – Whether exception or reservation to make express reference to light – Whether reservation in lease amounting to “consent or agreement” precluding prescriptive right to light – Appeal dismissedThe appellant was the freeholder of an office building. The respondents owned a building and two car parks adjoining and opposite the offices. Until 1989, Liverpool City Council had owned all four properties. In 1980, the council had granted a 99-year lease of the appellant’s building on terms that reserved to the landlord the “full and free right” at any time to “build rebuild and/or alter as they may think fit… any buildings or bays or projections to buildings on any land adjoining the demised property and/or on the opposite sides of the adjoining streets and access ways”.In proceedings between the parties, an issue arose as to whether the appellant’s property had acquired a right to light by prescription or whether the terms of the 1980 lease, reserving to the landlord the right to build on adjoining land, prevented such a right from arising. It was common ground that the appellant’s building had enjoyed 20 years’ light between the date of construction and the date of registration of a light obstruction notice under the Rights of Light Act 1832. However, the respondents contended that, as a result of the reservation in the 1980 lease, the light had been enjoyed “by some consent or agreement expressly made or given for that purpose by deed or writing”, within the meaning of section 3 of the Prescription Act 1832, such as to prevent the right to light from being deemed absolute and indefeasible under that section. The matter was determined as a preliminary issue. The appellant contended that a consent or agreement for section 3 purposes had to refer to light expressly.The judge held that the provision in the lease amounted to a consent or agreement within section 3 and prevented the appellant from relying upon 20 years’ enjoyment of light to constitute the prescriptive acquisition of a right under section 3: see [2007] EWHC 1655 (Ch); [2007] 44 EG 182. The appellant appealed.Held: The appeal was dismissed.An express reference to light was unnecessary in an agreement or consent for the purposes of section 3. The court’s first task was to construe the particular provision on ordinary principles, without reference to the consequences of any particular construction for either party, but so as to determine its true meaning, and then consider whether it came within the terms of the section. The phrase “expressly made or given for that purpose” in section 3 could be satisfied by an express provision in the relevant document that, on its true construction according to normal principles, rendered the enjoyment of light permissive or consensual or capable of being terminated or interfered with by the adjoining owner, and was therefore inconsistent with the enjoyment becoming absolute and indefeasible after 20 years. In principle, the question of whether any particular document satisfied the exception in section 3 depended upon the true construction of the document, in the relevant surrounding circumstances, taking the document as a whole but focusing particularly upon that part of the text that was said to constitute the agreement or consent. If anything turned on the burden of proof, it lay on the party that sought to establish the agreement or consent, although, since it had to be contained in a document, the burden of proof would rarely be relevant. There was no basis for a special rule, applicable to leases, under which a provision in the lease would be construed narrowly against the landlord, rather than according to normal principles: Mitchell v Cantrill (1888) LR 37 Ch D 56, Ruscoe v Groundsell (1903) 89 LT 426, Willoughby v Eckstein [1937] Ch 167 and Marlborough (West End) Ltd v Wilks Head & Eve unreported 20 December 1996 applied.Stephen Bickford-Smith (instructed by Michael Conn Goldsobel) appeared for the appellant; Andrew Francis (instructed by DLA Piper UK LLP, of Manchester) appeared for the respondents.Eileen O’Grady, barrister
