Cgis City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd
| Jurisdiction | England & Wales |
| Judge | Mr William Trower |
| Judgment Date | 13 June 2012 |
| Neutral Citation | [2012] EWHC 1594 (Ch) |
| Court | Chancery Division |
| Date | 13 June 2012 |
| Docket Number | Claim No HC09C01640 |
[2012] EWHC 1594 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Court of Justice Strand,
London, WC2A 2LL
Mr William Trower QC
(sitting as a deputy judge of the High Court)
Claim No HC09C01640
Miss Katharine Holland QC (instructed by Taylor Wessing LLP) for the Claimants
Mr Michael Barnes QC (instructed by Nabarro LLP) for the Defendant
Hearing dates: 8 and 9 May 2012
Mr William Trower QC:
Introduction
In these proceedings, the Claimants, acting through their joint receivers, seek a declaration that they are entitled to an easement or easements of light pursuant to the Prescription Act 1832 ("the 1832 Act"), alternatively the doctrine of lost modem grant, with respect to the windows on the north- east façade of a building situated on land known as City Plaza, Cannon Street, Birmingham B2 5EF ("City Plaza"). The Claimants are the registered freehold proprietors of City Plaza, which is registered at HM Land Registry under title number WM332195.
City Plaza is bounded to the south- east by Cannon Street, to the west by Needless Alley and to the north- east by New Cannon Passage. The building situated on City Plaza is nine stories high. It is predominantly office space, but there is also some retail space on the upper ground floor. It was constructed between 1987 and 1988.
The freehold of the servient land, in respect of which the easement of light is claimed, is registered in the name of the Defendant at HM Land Registry under title number WK65225 ("the Defendant's Property"). It comprises 45–59 (odd numbers) Temple Row, 3–9 Cherry Street and 17A and 18–21 Cannon Street, Birmingham. It is bounded to the south-west by New Cannon Passage. There are two principal buildings on the Defendant's Property, an office and bank building fronting onto Temple Row known variously as St Philips Chambers or 55 Temple Row, and a 20-storey building fronting onto Cannon Street known as Bank House. The Defendant's Property also includes a podium level structure at the south- east end of New Cannon Passage which provides service access to the two principal buildings.
The Claimants' freehold interest extends over New Cannon Passage, but the passage itself is a public right of way which separates City Plaza and the Defendant's Property, and which is therefore overlooked by the north- east façade of City Plaza. It is that façade which contains the 69 apertures with which these proceedings are concerned. City Plaza also contains a curved glazed frontage at the northern end of New Cannon Passage. As I shall explain, the same issues arise in relation to some of the windows in that frontage as arise in relation to the 69 apertures on the north- east façade.
The Claimants also seek an order for the cancellation of a light obstruction notice first registered by the Defendant's predecessors in title under section 2(3)(b) of the Rights of Light Act 1959 ("the 1959 Act") on 16 May 2008. The Claimants no longer pursue a claim they had originally made for an injunction to prevent what they alleged to be an anticipated infringement of their rights to light. There is undisputed evidence that the Defendant has no current intention to redevelop the Defendant's Property, and the Claimants withdrew this part of their claim shortly before the hearing of a strike out application which was based on that evidence and the recent decision of Sir Andrew Morritt C in CIP Property (AIPT) Limited v. Transport for London and others [2012] EWHC 259 (Ch)
The Issues
The principal issue with which I am concerned relates to the true meaning and effect of a conveyance dated 6 June 1967 ("the 1967 Conveyance") made between the Lord Mayor, Aldermen and Citizens of the City of Birmingham ("the Corporation") and the Governor and Company of the Bank of England ("the Bank"). I shall explain this issue (and how it arises) in more detail later in this judgment, but in short summary the relevant question of construction is whether the 1967 Conveyance authorises the owners from time to time of the Defendant's Property to interfere with light or air enjoyed by City Plaza irrespective of the identity of the proprietor of City Plaza, or whether it only authorised such interference for so long as City Plaza was owned by the Corporation.
If the authority was limited in the manner contended for by the Claimants, it is accepted by the Defendant that each of the 62 windows on the third to ninth floors, a small square window on the upper ground floor and a single window on the first floor of the north- east façade of City Plaza have been in position for a sufficient period to enjoy a prescriptive right to light against the Defendant's Property. Furthermore, it is also accepted by the Defendant that, if the authority was so limited, City Plaza's enjoyment of light will not have been "by some consent or agreement expressly made or given for that purpose" within the meaning of section 3 of the 1832 Act and that accordingly the proviso to that section is not engaged.
As to the remaining nine windows in the north- east façade of City Plaza, there is a relatively limited dispute between the parties as to whether the alteration to the fenestration in about 2006 has had the effect that five of those windows as they now exist (one of which is on the upper ground floor and four of which are on the second floor) have no prescriptive rights to light. It is not in dispute that the remaining four windows are completely new and cannot have acquired any such rights.
Both parties agree that, if I decide the first issue in favour of the Defendant, the alterations issue does not arise, because I will have concluded that no prescriptive right to light is enjoyed by any of the apertures on the north- east façade of City Plaza. I have, however, been asked to express my views on this issue in any event, and it seems to me that it is appropriate to do so.
I should add that Mr Michael Barnes QC for the Defendant identified a further possible issue as being how any infringement should be approached having regard to the alterations in the windows. During the course or the trial, however, Miss Katharine Holland QC for the Claimants confirmed that her clients only seek declaratory relief as to the extent of their rights. They do not now seek any determination as to what would amount to an interference by the Defendant. It follows that, whatever may have been the position at the time the parties' evidence was prepared, questions of infringement are not now questions that I am asked to decide.
The Factual Background
There are only a limited number of facts in dispute. Much of the evidence adduced by witness statement has proved to be non-contentious and a Statement of Agreed Facts and Issues ("the Agreed Statement") prepared by the parties' experts in rights to light has narrowed the questions even further. Both experts gave limited oral evidence; they were Mr Jerome Webb for the Claimants and Miss Elizabeth de Burgh Sidley for the Defendant. They are both highly experienced in their field. Despite the large measure of agreement, it is necessary to explain the factual background in a little detail so that my conclusions can be seen in their proper context.
By an indenture dated 13 March 1899 ("the 1899 Indenture") it was provided that it would be lawful for any party then or thereafter having an interest in land which formed part of what is now the Defendant's Property to erect without limit as to height or extent any building, without any interruption or molestation from any party then or thereafter having an interest in land, part of which formed part of what is now City Plaza. The relevant part of what is now the Defendant's Property was coloured yellow on the annexed plan and was called the Penn property. The relevant parts of what is now City Plaza were coloured blue on the annexed plan and (together with other parcels coloured pink and green on the annexed plan) was called the Inge property. The extent of the Penn property and the Inge property and how these two parcels of land relate to the buildings now erected on City Plaza and the Defendant's Property has been agreed between the parties and is identified in one of the plans exhibited at Appendix D to the Agreed Statement.
Mutual rights were also conferred by the 1899 Indenture on the owners from time to time of the Inge property, in that they were granted the right to erect any building without limit as to height or extent and to do so without any interruption or molestation from any party then or thereafter having an interest in the Penn property. It was expressly provided that the rights mutually conferred were to run with the land forever.
The consequence of what has now been agreed is that those parts of the building constructed on City Plaza which stand on what was the Inge property (being part of the curved glazed frontage at the northern end of New Cannon Passage) cannot enjoy a prescriptive right to light as against the Penn property. That does not mean that those parts cannot enjoy a prescriptive right to light as against other parts of the Defendant's Property, although it is appropriate to record that it is set out in the Agreed Statement that this curved glass frontage obtains considerable light across Needless Alley from St Paul's Churchyard and, if the glazed area remains the same, there is unlikely to be any loss of light as a result of any development of the Defendant's Property.
The position is different so far as concerns those parts of the curved glass frontage which do not stand on what was the Inge property. The question of whether the windows in that part of the frontage enjoy a prescriptive right to light depends on the...
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Table of Cases
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