Allen v Greenwood

JurisdictionEngland & Wales
JudgeLORD JUSTICE BUCKLEY,LORD JUSTICE GOFF,LORD JUSTICE ORR
Judgment Date16 October 1978
Judgment citation (vLex)[1978] EWCA Civ J1016-3
Date16 October 1978
CourtCourt of Appeal (Civil Division)

[1978] EWCA Civ J1016-3

In The Supreme Court of Judicature

Court of Appeal

(Civil Division)

On Appeal from The High Court of Justice Chancery Division

Group B

Preston District Registry

(Vice-Chancellor Blackett-Ord)

Before:

Lord Justice Buckley

Lord Justice Orr

and

Lord Justice Goff

Between:
Hubert Allen and Marjorie Allen (his wife)
Plaintiffs (Appellants)
and
Tyrell Sandiford Greenwood and Lilian Alice Greenwood (his wife)
Defendants (Respondents)

MR. H.E. FRANCIS Q.C. and MR. A.W. SIMPSON (instructed by Messrs, Blackhurst, Park & Yates, Solicitors, Lancaster) appeared on behalf of the Plaintiffs (Appellants).

MR. P.V. BAKER Q.C. and MR. B.C. MADDOCKS (instructed by Messrs. Brierley & Hudson, Solicitors, Rochdale) appeared on behalf of the Defendants (Respondents).

LORD JUSTICE BUCKLEY
1

I have asked Lord Justice Goff to deliver the first judgment in this case.

LORD JUSTICE GOFF
2

This is an appeal from an order of Vice-Chancellor Blackett-Ord dated 6th October 1977, whereby he refused relief by way of prohibitive and mandatory injunctions in respect of the alleged obstruction of light to the appellants' greenhouse and dismissed the action.

3

The appellants have occupied No. 13 Woodtop Avenue, Rochdale since September 1954, first as tenants, and since December 1974 as owners in fee simple. As the photographs show, it is a pleasant detached house with a spacious garden.

4

The respondents are owners in fee simple of a comparable house and property, No. 15 to the south, which they purchased in 1966 and which they have occupied ever since. The level of the appellants' garden is some 26 or 28 ins. lower than the respondents' and the respondents' land is supported by a low retaining wall commencing a little to the east of the greenhouse, with a low brick-built pillar.

5

The appellants' greenhouse is of the following agreed dimensions. It is 16 ft. long, 9 ft. 6 ins. wide, 6 ft. 9 ins. to the eaves, and then it has a pitched roof with the ridge 3 ft. above that. It is built right up against the retaining wall. In fact that wall forms one of its walls. Two of the other three are built up to, or perhaps bonded into, the retaining wall to form a level support, and the glazed structure rises directly above these four walls. So on the south side the frame of the glass is actually resting upon, or secured to, the retaining wall itself. That wall belongs wholly to the appellant; it is not a party wall.

6

It is clear that the greenhouse was built soon after theerection of No. 13 some time between 1939 and 1941, and user of it for the ordinary purposes of a greenhouse for at least 20 years next before action brought was duly proved. The appellants complain of an infringement of a prescriptive right to light to their greenhouse, founding their claim on section 3 of the Prescription Act 1852, which is in these terms: "When the access or use of light to and for any dwelling house, workshop, or other building shall have been actually enjoyed therewith for the full period of 20 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". There was in this case no such consent.

7

Prior to 1969 there were certain buildings or structures on the respondents' land, in addition of course to their house. There was an air raid shelter a little to the west of the greenhouse, and a shed to the east of the greenhouse. After the war the air raid shelter was put to use as a coal bunker. Mr. Hubert Allen, one of the appellants, gave evidence at the trial. He was cross-examined, suggesting that those buildings or structures had obstructed the light to the greenhouse, but there was an open space of some 20 ft. between the air raid shelter and the garden shed, and it became clear that those structures did not cause any obstruction and that line was not pursued.

8

In that year, 1969, the respondents caused the air raid shelter, or coal bunker, and the garden shed to be removed. For a time they had a car port to the west of their garage - that is, further away from the greenhouse - and that did not cause anyobstruction. At this time they also had a wall built across their land from the pillar to the house, and laid out the part of their property to the east of that well as a patio, leaving an open tarmac space in front of the greenhouse. So there was still no obstruction. Indeed, there was no trouble of any hind until May of 1974, when the respondents applied for planning permission to erect a two-storey extension at the rear of No. 15. Notice of that application was given to the appellants by the Borough Planning Officer, Mr. Allen inspected the plans and formed the view that such an extension would interfere with the access of light to the greenhouse and to his sitting room. He, therefore, instructed solicitors, who wrote to Mr. Greenwood on 7th August 1974, saying:

9

"Mr. Allen has inspected the deposited plans and finds that if the proposed extension is carried out it will cause a serious diminution of the access of light to our client's green house and some diminution of light to his sitting- room. The buildings on our client's land have been erected long enough to have acquired a right to light and, therefore, we trust that you will not proceed with the extension in such a way as to infringe the rights of our clients. Mr. Allen has felt it necessary to lodge a formal objection to your application.

10

"We trust that it will not be necessary for our clients to take any further steps to enforce their rights and we shall be glad to hear from you that the matter can be amicably disposed of".

11

There was no reply to that letter, but shortly afterwards the respondents started to park their caravan immediately alongside the greenhouse. Prior to that it had been parked to the west of the old car port; that is, between the car port and the road, where, of course, it was not an obstruction to the greenhouse.

12

On 28th August 1974 the respondents put in posts, or supports, for a fence very close to the green house. That fence, which is close-boarded and creosoted, was finished by 1st September from a point at the east end of the greenhouse nearly, but not quite, up to the west end. This is shown in photograph No. 7. The fence was built to a height which, having regard to the difference in level of the two properties, brought it about 18 ins. above the eaves, and that appears from photograph No. 5.

13

The appellants' solicitors wrote a further letter on 6th September 1974 in the following terms: "Further to our letter of the 7th August 1974 we are now informed that you have erected a hoarded fence on the boundary of your property adjacent to that of our client's the top of which in part by reason of the difference of levels extends 9 above the level upon which our client's greenhouse stands and is at a distance of approximately 5" from it.

14

"This fence naturally interferes very seriously indeed with, the access of light to the greenhouse.

15

"We have already pointed out to you that our client has acquired a right to light by prescription in view of the fact that the greenhouse has occupied its present position for a period considerably in excess of 20 years.

16

"Unless therefore the fence in its present form is removed our client will institute proceedings for an Order to enforce its removal without delay.

17

"We must therefore request you to advise us within the next 7 days that this will be done".

18

On receipt of that letter the fence, so far as it was immediately opposite the greenhouse, was dismantled (see photographNo. 8) but the caravan was then again placed alongside the greenhouse. Between October 1974 and 5th February 1975 the fence was restored and extended right to the west end of the greenhouse and approximately 5½ft. beyond, when first restored it came only up to eave level, but it was later raised to 18 ins. above, when the appellants' gardener placed boxes of seeds and young plants at about eave level to get as near to the light as possible to prevent them from getting drawn up.

19

The position, therefore, when the action commenced was, and it still is, that there is this fence from the east end of the greenhouse to a point some 5 ft. 6 ins. beyond it on the west, only about 6 ins away from the glass, with the caravan parked close up to the fence.

20

It was clear from Mr. Allen's evidence that the greenhouse had been used at all material times in the ordinary normal way in which such an appurtenance would be used in a private garden. He was asked, at page 3 of the transcript at D: "What use - since 1954 when you went into occupation of the house - have you made of the greenhouse?" and he answered: "I have invariably grown tomatoes during the summer. We have raised our own plants from seed". Then the learned Vice-Chancellor asked: "Do you mean tomato plants?" and Mr. Allen answered: "Tomato plants. Sometimes we have bought tomato plants; sometimes we have raised them from seed. Then we have geraniums, and we raise cuttings and so forth. Indeed, we are accustomed also to grow pot plants for the purpose not only of being able to see them in the greenhouse, but also when required to be able to take them inside the house. My wife is fond of plants and flowers inside the house, and I am myself for that matter. Of course, the greenhouse has served a usefulpurpose in that sense". Then counsel went on: "You have mentioned so far tomatoes, geraniums and house plants? (A) Yes. (Q) Do you raise any plants other than tomatoes from seeds? (A) Oh, yes, a whole range of biannual type bedding plants that one raises from seed in the spring. (Q) What sort of plants? (A) Stocks, antirrhinums, various kinds of marigold, zinnias,...

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