Easements — Right to light — Prescription — Section 3 of Prescription Act 1832 — Office building previously let on terms reserving to landlord full right to build on adjoining land — Whether reservation in lease amounting to “consent or agreement” preventing prescriptive right to light from arising — Whether such consent required to refer expressly to light
The claimant was the freeholder of an office building. The defendants owned three properties adjoining and across the road from the offices, namely a building and two car parks. Liverpool City Council had, until 1989, owned all four properties. In proceedings between the parties, the claimant contended that its property had acquired a right to light over the defendants’ land by prescription. The defendants denied that right. It was not disputed that the claimant’s building had enjoyed the necessary 20 years’ light between the date of construction and the date of registration of a light obstruction notice under the Rights of Light Act 1959. However, the defendants contended that 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. They relied upon the terms of a lease of the claimant’s building granted by the council in 1980, reserving to the landlords 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”. The defendants submitted that such a reservation, reserving to the landlord the right to build on adjoining land, was that the claimant’s building enjoyed light only by a “consent or agreement” within section 3. That matter was tried as a preliminary issue. The claimant contended that a consent or agreement for section 3 purposes had to refer expressly to light.
Held: The preliminary issue was determined in favour of the defendants. For the purposes of section 3 of the 1832 Act, it is not necessary for the agreement or consent in question to refer expressly to light or to provide that enjoyment of light is “permissive”, provided that the agreement makes it clear that the enjoyment of light is not absolute and indefeasible. Whether a provision has the relevant effect is a question of interpretation of the particular clause. The clause must deal with what might happen in the future. A clause that deals only with the position as it was at the time of the lease will not suffice: it will merely prevent the creation of easements by express or implied grant, and will not prevent the subsequent acquisition of a right to light by prescription. A clause in a lease that authorises the landlord to build as it pleases will be likely to satisfy the test. The reservation upon which the defendants relied fulfilled the test; a right to build that could be thwarted by the assertion of a right to light would not be “full and free” within the meaning of the reservation, nor would it enable the landlords to build as they “may think fit”. The reservation operated as an “agreement or consent” for the purposes of section 3 so as to prevent the acquisition of prescriptive rights of light over the defendants’ land.
The following cases are referred to in this report.
Blake & Lyons v Lewis Berger & Sons [1951] 2 TLR 605
Foster v Lyons & Co Ltd [1927] 1 Ch 219
Haynes v King [1893] 3 Ch 439
Marlborough (West End) Ltd v Wilks, Head & Eve [1996] NLD 138
Mitchell v Cantrill (1888) LR 37 Ch D 56
Paragon Finance plc v City of London Real Property Co Ltd [2002] 1 P&CR 36; [2002] 1 EGLR 97
Wheeldon v Burrows (1879) 12 ChD 31
Willoughby v Eckstein [1937] Ch 167, Ch
This was the trial of a preliminary issue concerning the existence of a prescriptive right to light in proceedings by the claimant, RHJ Ltd, against the defendants, FT Patten (Holdings) Ltd and FT Patten Properties (Liverpool) Ltd.
Stephen Bickford-Smith (instructed by Michael Conn Goldsobel) appeared for the claimant; Andrew Francis (instructed by DLA Piper UK LLP, of Manchester) represented the defendants.
Giving judgment, Lewison J said:
Introduction
[1] If a lease reserves to the landlord a right to build on adjoining land, does that prevent the tenant from acquiring an absolute and indefeasible right to light by prescription or must the reservation expressly mention light? That is the preliminary issue that I must decide. The opposing arguments have been ably presented by Mr Stephen Bickford-Smith, for the claimant, and Mr Andrew Francis, for the defendants. With becoming modesty, neither of them referred to their excellent jointly written book on the subject.
Facts
[2] Regian House is an office block in Liverpool city centre. It lies between James Street and Redcross Street and has a short frontage to Strand Street. On the corner of Redcross Street and Strand Street, there is a car park known as the Strand Street car park. Across the road, on the other side of Redcross Street, at its junction with Strand Street, there is a building called Strand House and behind that is another car park.
[3] On 26 February 1980, Liverpool City Council granted a lease of Regian House to Possfund Trustees Ltd for a term of 99 years from 24 November 1975. At the date of grant of the lease, Liverpool City Council owned both Regian House and the other parcels of land that I have mentioned. Standard Life Assurance Co owned buildings to the north of Regian House called Victoria House and Graeme House. The freehold of Regian House is now owned by RJH Ltd and the Strand Street car park, Strand House and its car park are owned by FH Patten (Holdings) Ltd and FT Patten Properties (Liverpool) Ltd.|page:2|
[4] The lease of Regian House contained the following relevant clauses:
(i) Clause 2, which says:
PROVIDED ALWAYS that nothing herein contained shall operate to grant by way of implication or otherwise any estate right or easement not hereby expressly granted or not hereafter expressly granted by the Lessor over or in respect of any land retained by or belonging to the Lessor…
(ii) Clause 5 (b), which contains a standard covenant for quiet enjoyment.
(iii) Exception or reservation (h) in the first schedule, which is related to clause 3 of a deed of 14 February 1978. It excepts or reserves:
all rights to the access of light or air from the said adjoining property known as Victoria House and Graeme House to any of the windows of the demised property.
(iv) Exception or reservation (i) in the first schedule, which excepts or reserves:
the full and free right to erect build rebuild and/or alter as they may think fit at any time and from time to time 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.
[5] It is common ground that until Liverpool City Council disposed of their landholdings in 1989, the only way in which Regian House could have acquired rights to light would have been by prescription under the Prescription Act 1832 (the 1832 Act). It has been assumed for the purposes of the preliminary issue that Regian House has enjoyed 20 years’ light between the date of its construction and the date upon which a light obstruction notice was registered under the Rights of Light Act 1959.
[6] The essential dispute is whether exception or reservation (i) is an agreement or consent in writing for the purposes of section 3 of the 1832 Act.
1832 Act
[7] Section 3 of the 1832 Act provides:
When the access and use of light to and for any dwelling house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.
[8] It is, rightly, common ground that under section 3, the enjoyment of light does not need to be “as of right” as that expression is generally used in the law of easements. Nor is a prescriptive right under section 3 confined to a freehold right. Thus, it is possible for a tenant to acquire a prescriptive right to light against its landlord.
[9] What section 3 bites on is the actual enjoyment of light for the full period of 20 years. Once that has been established as a fact, the effect of the section is to deem the right to light to be “absolute and indefeasible”. The exception to the deeming provision is where it appears that the light “was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing”. Although the reference to “consent” envisages a permissive enjoyment of light, I do not think that the word “agreement” necessarily does. The function of the agreement is to prevent the enjoyment of light from being deemed to be “absolute and indefeasible”. If, therefore, an agreement provides for the enjoyment of light not to be absolute and indefeasible, it will, in my judgment, be sufficient to prevent the deeming provision from taking effect.
[10] Before turning to consider the case law, there is one other obvious point that I should make. A right to light (like other easements) may be acquired either by grant or by prescription. In the case of a grant, the grant may be express or implied. An implied grant may arise by virtue of section 62 of the Law of Property Act 1925 or by the operation of the rule in Wheeldon v Burrows (1879) 12 ChD 31. Whether the grant is express or implied, in the case of a lease it is made at the date of the lease. By contrast, under section 3, a right to light may arise by the enjoyment of light that takes place subsequent to the grant of the lease. It is not dependent upon the terms of the lease; it is dependent upon the established facts and the absence of a consent or agreement that satisfies the concluding part of section 3.
Agreement or consent: Case law
[11] Both Mr Bickford-Smith and Mr Francis accepted as correct the summary of principle contained in the judgment of Lightman J in Marlborough (West End) Ltd v Wilks, Head & Eve 20 December 1996*:
Whether or not a document constitutes such a consent or agreement is a question of construction. In this context, care must be taken to distinguish between provisions designed to protect the servient owner by negativing the implication of a grant of an easement or the grant of analogous rights under the doctrine of non-derogation from grant or to establish by agreement the existing legal rights of the parties; and provisions designed to authorise the servient owner at a future date to carry out works or build as he pleases unrestricted by any easement of light in favour of the dominant land and notwithstanding any resultant injury to the light enjoyed. Provisions of the former character do not constitute either consents or agreements by the servient owner licensing or consenting to the future enjoyment of the access of light and accordingly do not prevent acquisition of light by prescription (see Mitchell v Cantrill (1887) 37 ChD 36); but provisions of the latter character may be construed as consents or agreements permitting the enjoyment of light during the interim period and accordingly (as provided in Section 3) preclude any easement arising by prescription under the Act (see Willoughby v Eckstein [1937] Ch 167).
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* Editor’s note: Reported at [1996] NLD 138
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[12] Mr Francis fastened onto that part of Lightman J’s summary that speaks of “provisions designed to authorise the servient owner at a future date to carry out works or build as he pleases”; while Mr Bickford-Smith emphasised the immediately following words, “unrestricted by any easement of light in favour of the dominant land and notwithstanding any resultant injury to the light enjoyed”. These words, and the preceding case law upon which they are based, require, he said, that the writing relied upon must refer expressly to light. The words of the clause that Lightman J was considering plainly referred to light, so that his summary of principle did not need to address the precise point in this case. In examining the case law, it will be necessary to examine both the wording of the clauses considered by the courts and also the statements of principle.
[13] The first of the cases is Mitchell v Cantrill (1888) LR 37 Ch D 56. In 1864, Sir Humphrey de Trafford granted a 999-year lease of a dwelling-house “with all rights and appurtenances, legal, used, or reputed, to the said plot of land, except rights, if any, restricting the free use of any adjoining land or the conversion or appropriation at any time thereafter of such land for building or other purposes, obstructive or otherwise”. A dispute arose between the lessee and an adjoining lessee deriving title from the same landlord. The question was whether the exception of easements was an agreement or consent for the purposes of section 3. The Court of Appeal held that it was not. Cotton LJ said, at pp59-60:
It is not an agreement given for the purpose of the enjoyment of the light, but it is simply an exception out of the grant made of appurtenances and rights, so as to prevent the lessee from urging as against the landlord or anybody claiming through him, before a right had been obtained under the statute, that the landlord could not derogate from his own grant either by his building or granting to anybody else a right to build so as to interfere with the Plaintiff’s lights. That is the reasonable, and I think, the only meaning of this clause. It was in effect saying, “If I grant this house to you without protecting myself, you will say, if I build up any adjoining house, that is derogating from my own grant; and this clause is to prevent any such contention being made.” But if independently of the grant the lessee has enjoyed the use of these windows for twenty years he will have the same right as against the adjoining lessee as against a stranger. There was certainly no case referred to in the argument to shew that such claim as is contended for by the Plaintiff exists. But he has the right simply by the effect and operation, not of the grant, but of the statute, and in my opinion he is entitled to enforce that. |page:3|
[14] In other words, the exception dealt only with rights existing at the date of grant of the lease; and not with rights subsequently acquired. Cotton LJ contrasted that, at p60, with:
If you had an express proviso in the contract between the parties that, notwithstanding the grant to the Plaintiff, the landlord should be at liberty to build so as to interfere with his right, that would be another point, but that is not the express form of it, and in my opinion the fair and clear meaning of this clause, construing it without reference to the consequences to one party or the other, is not anything of that sort.
[15] Lindley LJ said, at p62:
The last words in the section mean that when you find an agreement under which the light is enjoyed you must look at that agreement and see what, if any, right to light is expressly given by it.
[16] Although Cotton LJ referred to a proviso allowing the landlord to build “so as to interfere with his right”, he did not say that such a proviso must expressly refer to light or to the right to light, and Lindley LJ treated the question as one of construction of the agreement relied upon. It is, however, right to say that neither of the lords justices was interpreting an actual proviso of the kind that they contemplated.
[17] In Haynes v King [1893] 3 Ch 439, the Ecclesiastical Commissioners had granted leases of houses in Leonard Street, City Road, on terms that contained a clause in the following terms:
that the lessors shall have power at any time, without obtaining any consent from or making any compensation to the lessee, his executors or assigns, to deal as they may think fit with any of the premises adjoining or near to the hereditaments hereby demised, and to erect or suffer to be erected on such adjoining or neighbouring premises any buildings whatsoever, whether such buildings shall or shall not affect or diminish the light or air which may now, or at any time during the term hereby granted, be enjoyed by the lessee…
[18] The clause thus referred expressly to light. Many years later, the Ecclesiastical Commissioners entered into a redevelopment agreement relating to houses on the other side of the street. The lessee applied for an injunction to stop the redevelopment. The lessee argued that this clause dealt only with the possibility of derogation from grant, and did not preclude the acquisition of a prescriptive right. North J rejected that argument, holding that this was just the kind of clause that Cotton LJ had had in mind. It plainly dealt with future events and was not restricted to negativing the grant of rights at the date of the lease. Since the clause expressly referred to light, North J did not have to consider whether that was a necessary feature of an agreement or consent for the purpose of section 3.
[19] In Foster v Lyons & Co Ltd [1927] 1 Ch 219, a lease of architects’ offices off New Street, Birmingham, reserved to the landlord:
full right to build to any height upon the land adjoining the land and premises hereby demised, notwithstanding such buildings may obstruct any light on the land hereby demised.
[20] The landlord entered into an agreement with Lyons for the redevelopment of neighbouring property. The lessee applied for an injunction to stop the redevelopment. Eve J posed the question as follows, at p227:
The question is whether the words I have just read operate as an agreement within the section or were only meant to negative the implied right which the lessee would otherwise have had of insisting that the lessor should not derogate from his own grant by building on the adjoining land…
[21] He answered it as follows:
Whether the right to which the lessor lays claim by virtue of the qualifying words can really be described as a reservation I very much doubt, but the matter cannot be disposed of by criticism of this nature. One must find out the substance of the contract, and in my opinion the words must be construed as a grant by the lessee to the lessor of the full right to build on his adjoining land notwithstanding the resultant injury to the light of the demised premises.
[22] Again, the question was whether the clause related only to rights existing at the date of the lease or whether it was intended to govern the future. Once again, the clause referred to light expressly, so that North J did not have to consider whether that express reference was a necessary feature of an agreement for the purposes of section 3.
[23] The first of the cases to consider a clause that did not expressly refer to light was Willoughby v Eckstein [1937] Ch 167. The lease of a house on the Grosvenor Estate contained a clause in the following terms:
but without including any rights of light or other easements over other ground or premises and subject nevertheless to all rights and easements belonging to any adjacent property and subject to the adjacent buildings or any of them being at any time or times rebuilt or altered according to plans both as to height elevation extent and otherwise as shall or may be approved of by the ground landlord for the time being.
[24] There was, therefore an exception of rights of light and a clause that referred to the future rebuilding of adjacent buildings (but without itself expressly referring to light). Luxmoore J said, at p171, that in order to come within section 3 an agreement must fulfil three conditions:
(a) the agreement must be by deed or writing, (b) it must be express, and (c) it must also have been entered into for the purpose referred to in the section.
[25] He then referred to the three cases that I have mentioned, and continued, at p173:
I think the principle to be deduced from these decisions is that in order to prevent the acquisition of a statutory right to light under the Prescription Act there must be an express written agreement under which the actual enjoyment of light by a lessee is permissive throughout the whole of the term created by the lease.
[26] I am not entirely convinced that it is necessary for the agreement to provide for the actual enjoyment of light to be “permissive”. What seems to me to be necessary is an agreement that makes it clear that the right to light is not absolute and indefeasible.
[27] Be that as it may, Luxmoore J concluded, at p174:
The exception from the demise of any right to light over the last mentioned property seems to me to establish that there was an agreement between the lessor and lessee that the lessee was to have no absolute right to light under the lease. The exception is followed by these words: “Subject to the adjacent buildings or any of them being at any time or times rebuilt or altered according to plans as to height elevation extent and otherwise… approved of by the ground landlord.” Taken in conjunction with the exception they appear to me to constitute a grant by the lessee to the lessor of the right to build during the full term of the demise on the adjacent land including No 15 Balfour Mews, notwithstanding the effect of such building on the light to No 13 Balfour Mews; and to constitute, together with the exception from the demise of any right to light, an agreement by the lessee of No 13 Balfour Mews that any enjoyment of light in respect of the premises demised to her was to be permissive only throughout the whole of the term.
[28] As I read this, what the judge was saying was that the exception, dealing with the state of affairs at the beginning of the lease, was enough to prevent the lessee from acquiring a right to light under the lease itself. The words following the exception, dealing with the future, were enough to prevent the lessee from acquiring a right to light by prescription under the Act. The grant (or regrant) to the landlord of the right to build was enough. The words held to have had that effect did not refer expressly to light.
[29] The second case in which the cause did not expressly refer to light is Blake & Lyons v Lewis Berger & Sons [1951] 2 TLR 605. That case also concerned property on the Grosvenor Estate and the lease appears to have contained a clause in the same terms as that considered in Willoughby, although the exception was not quoted in the judgment of Wynn Parry J. The reasoning is not easy to follow and I do not derive much help from it. However, the judge did conclude that the clause in that case amounted to a consent for the purposes of section 3 and (unlike Luxmoore J) he reached that conclusion without referring to the exception.
[30] The third case to which I should refer is Paragon Finance plc v City of London Real Property Co Ltd [2002] 1 EGLR 97. The lease in that case provided that nothing therein contained or implied: |page:4|
shall operate to prevent or restrict in any way the development of any land not comprised in this Lease.
[31] HH Judge Rich QC, sitting as a judge of the Chancery Division, held, at p100, that that clause:
must be construed as granting to the lessee the rights of light attached to the building, only subject to the reservation of the right to develop other land not comprised in the lease, which is, in effect, a grant back by the lessee to the lessor of a right to build.
[32] He held that a clause of that kind was a sufficient agreement or consent for the purposes of section 3.
Conclusions
[33] I do not find in the case law any statement to the effect that an agreement or consent for the purpose of section 3 must expressly refer to light. Indeed, it would be remarkable if the use of the very word “light” were a prerequisite to a valid agreement or consent. If, for example, in a written agreement between neighbours one party acknowledged that “my windows have been opened with the consent of my neighbour who can require me to block them up at any time”, it would be astonishing if that were ineffective simply because the word “light” did not feature in the writing. In my judgment, Mr Bickford-Smith’s primary argument is not supported by authority (except by inference) and is inconsistent with Willoughby. It is of some note that in Lightman J’s summary (which both Mr Bickford-Smith and Mr Francis agree is correct), Willoughby is cited as the only example of an agreement that was effective for the purposes of section 3. Mr Bickford-Smith also showed me a number of published precedents, all of which referred in terms to light. No doubt such a reference is good practice, but I do not consider that it is essential.
[34] The real distinction that the cases draw is, as it seems to me, between clauses that deal with the position as it exists at the date of the lease, and clauses that deal with what might happen in the future. Clauses of the first kind are effective only to prevent the creation of easements by express or implied grant; and do not prevent the subsequent acquisition of a right of light by prescription. Clauses of the second kind may prevent the acquisition of a right of light by prescription if what they authorise would interfere with light. If, on a fair reading of the clause they do, it is not necessary, in my judgment, for the clause to use the word “light”. Nor, in my judgment, is it necessary for the clause to provide that the enjoyment of light is “permissive”. What is needed is that the clause makes it clear that the enjoyment of light is not absolute and indefeasible. The court must “find out the substance of the contract”: in other words, it is a question of interpretation of the clause in question. Once the clause has been interpreted, that interpretation will have been “expressly” agreed. A clause in a lease that authorises the landlord to build as it pleases is likely to satisfy the test.
[35] In the present case, clause 2 of the lease deals with the position as at the date of grant of the lease. It excludes any implied grant of easements. No express right to light is granted by the lease. So proviso (i), upon which Mr Francis relied, must have been intended to deal with the future. Mr Bickford-Smith argued that it can be given content, as dealing only with potential claims for derogation from grant, or breach of covenant for quiet enjoyment. He said that the lessee would be precluded from relying upon such causes of action as well as on causes of action in nuisance arising out of the creation of noise, dust or vibration during building works. Since the clause can be given content in that way, there is no need to interpret it as precluding the acquisition of an indefeasible right to light. He pointed also to the express reservation of rights of light over other parcels belonging to the landlord and pointed out that this was not done in proviso (i).
[36] Attractively as the submission was presented, I do not accept it. It is, in my judgment, simply a question of interpretation of the clause in question. In this case, the landlord has reserved a “full and free” right to build on adjoining land. A right to build that could be thwarted by the assertion of a right to light would be neither full nor free. The right is also a right for the landlord to build as it “may think fit”; that is, without fetters on its right. In my judgment, the purpose of proviso (i) was to enable the landlord to build as it pleased on adjoining land, and its words, fairly read, achieve that effect. They make it clear that the tenant was not to have an absolute and indefeasible right to light and, thus, in my judgment, operate as an agreement or consent for the purposes of section 3 of the 1832 Act. I conclude therefore that clause 2 and para (i) of the first schedule to the lease prevented the acquisition of rights of light over the defendants’ land.
Preliminary issue determined in favour of defendants.
