G & S Brough Ltd v Salvage Wharf Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Carnwath,Lord Justice Tuckey |
| Judgment Date | 29 January 2009 |
| Neutral Citation | [2009] EWCA Civ 21 |
| Date | 29 January 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2008/1244 |
[2009] EWCA Civ 21
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, CHANCERY DIVISION
HH Judge Purle QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tuckey
Lord Justice Carnwath and
Lord Justice Jackson
Case No: A3/2008/1244
7BM30981
Ashley Underwood QC and Stephen Bickford-Smith (instructed by Eversheds LLP) for the Appellants
John Randall QC and John de Waal (instructed by Tyndallwoods) for the Respondent
Hearing dates: 1 and 2 December 2008
This judgment is in six parts as follows:
| Part 1. | Introduction |
| Part 2. | The facts |
| Part 3. | The Present Proceedings |
| Part 4. | Did the claimant lose all rights of light pursuant to s.3 of the 1832 Act? |
| Part 5. | Was the defendant entitled to register its notice under s.2 of the 1959 Act? |
| Part 6. | Conclusion |
This is an appeal against the judgment of Judge Purle QC given on 28 April 2008 in the Birmingham Chancery Division, whereby (i) he upheld the claimant's claim to be entitled to rights of light through the windows of the northern and eastern elevations of its premises at 25–29 Commercial Street, Birmingham and (ii) he dismissed the defendants' counterclaim.
Strictly speaking the rear wall of the claimant's property faced north west and the right hand side of the claimant's property faced north east. However, in order to simply the references to various buildings and features throughout the appeal, the rear elevation of the claimant's property has been treated as facing north and the right hand side (viewed from Commercial Street) has been treated as facing east.
In this judgment I shall refer to Birmingham Mailbox Limited as “BML”. I shall refer to British Waterways Board as “BWB”. I shall refer to the Prescription Act 1832 as “the 1832 Act”. I shall refer to the Rights of Light Act 1959 as “the 1959 Act”.
After these brief introductory remarks I must now turn to the facts.
The claimant is a family owned company, incorporated in 1935, which produces various types of washers and gaskets. The claimant now operates from Leopold Street in Birmingham. The previous premises from which the claimant operated were at 25–29 Commercial Street, Birmingham. The claimant occupied that property from 1951 to 2007. That is the property (now demolished) with which this litigation is concerned. I shall refer to it as “the Brough property”.
Commercial Street, Birmingham runs approximately east to west. Immediately to the west of the Brough property was a property belonging to Mr Tyler (“the Tyler property”). Beyond that lay an area referred to as Washington Foundry. Beyond that lay an area referred to as Washington Wharf. A short way behind all these properties lay the Birmingham and Worcester Canal, which ran approximately parallel to Commercial Street.
On the east side of the Brough property was a passageway known as “Brough's passage”. Beyond Brough's passage lay an area known as Salvage Wharf. To the east of Salvage Wharf was a road called Holiday Passage. Beyond that lay the Royal Mail Sorting Office.
The Brough property had windows at a high level on the north wall and the east wall. The windows on the north wall looked out across the canal. The windows on the east wall looked out across Brough's Passage. Light had passed through these windows for many years and no doubt this was beneficial for the people working in the factory.
BWB was the owner of Salvage Wharf. BWB also owned a strip of land which lay behind the Brough property, the Tyler property, Washington Foundry and Washington Wharf. That strip of land lay between those properties and the canal. I shall refer to Salvage Wharf and that strip of land collectively as “the BWB property”, even though BWB ceased to be the owner of that land during 1999.
For the purposes of its business the claimant leased from BWB two buildings adjacent to the Brough property. The first building was a warehouse on the east side of Brough's Passage (“the old warehouse”). The second building was immediately behind the Brough property and stood on stilts (“the stilted building”).
It was a term of the claimant's lease that when the claimant vacated the stilted building the claimant would (if required to do so) demolish the stilted building. That operation would make it necessary to rebuild the rear gable wall of the Brough property.
During the 1990s the Post Office made other arrangements for the sorting of mail in Birmingham and the former Royal Mail Sorting Office closed down. In September 1997 BML was incorporated for the purpose of redeveloping the former Sorting Office and the surrounding area.
In the spring of 1998 BML acquired a long leasehold interest in the former Sorting Office. BML also entered into negotiations with BWB for the purchase of the BWB property.
In June 1998 BML applied for planning permission to redevelop the former Sorting Office and the BWB land. In Appendix 1 to the planning application BML described the proposed development as follows:
“Change of use, alteration and extension of the former Royal Mail Sorting Office, Royal Mail Street and erection of new buildings on the land fronting Commercial Street to provide a mixed use scheme including residential, leisure, retail, office, hotel and car parking, including construction of a new bridge and canal basis together with alteration to Holiday Passage.”
A number of plans accompanied that application. Additional plans and a photo montage were lodged to supplement the application in August and October 1998.
It can be seen from the plans and the photo montage that BML proposed to construct a massive building (“The Mail Box”) on the site of the former Sorting Office. BML proposed to construct a hotel on Salvage Wharf and three blocks of flats, each four storeys high, along the strip of land by the canal. Of those three blocks the first was to stand behind Washington Wharf, the second was to stand behind Washington Foundry and the third was to stand behind the Brough property and the Tyler property.
On 13 July 1998 the first defendant was incorporated. The first defendant had the same directors and shareholders as BML. During the course of 1998 the first defendant set about buying up the various properties and flying freeholds, which comprised Washington Wharf and Washington Foundry. This process continued until the first defendant had purchased all those properties except for one which stood at the extreme west end (“the white building”), upon which nothing turns in these proceedings.
On 24 December 1998 the first defendant entered into an agreement with BWB known as “the development agreement”. Under the development agreement it was agreed that the first defendant would acquire and develop the BWB land. It should be noted that the transfer of the BWB land took some time and was not completed until 4 October 1999.
In order to carry out its obligations under the development agreement, BWB needed to secure vacant possession of all the BWB land. Accordingly BWB served notice under s.25 of the Landlord and Tenant Act 1954 to terminate the claimant's tenancy of the stilted building and the old warehouse. BWB also exercised its right under the lease to require the claimant to demolish the stilted building.
In the meantime there were many matters to be resolved between the first defendant and the claimant, since the proposed development would take place in the immediate vicinity of the Brough property. Although much evidence was called at trial concerning the negotiations between the claimant and the defendant, I do not regard those negotiations as relevant to the issues between the parties in this litigation. Indeed I doubt that the evidence concerning those negotiations was admissible.
Suffice it to say that on 23 March 1999 the claimant and the first defendant entered into a written agreement, the terms of which are central to the present litigation. I shall refer to this agreement as “the 1999 agreement”.
The recitals to the 1999 agreement read as follows:
“(1) The Developer is the developer for a project of redevelopment (hereinafter called “the Project”) to be undertaken by the Developer and briefly described in Schedule 1 hereto at the property described in Schedule 3 hereto (hereinafter called “the Development Site”)
(2) The Owner is the Owner of the property (hereinafter called “the Property”) more particularly described in Schedule 2 hereto
(2) The Developer at the request of the Owner is to carry out works to the Property as set out in Schedule 4 hereto
(3) The Developer wishes to install and operate cranes from time to time for the Project (hereinafter called “the Crane”) and all or part of the Property may be subject to oversailing by the boom and counterboom of the Crane during the construction of the Project and the Owner has agreed to grant the Developer this Licence to permit such oversailing by the Crane for consideration and upon the terms hereinafter agreed”
Clauses 1 to 3 of the 1999 agreement dealt with oversailing. The developer was granted oversailing rights for its cranes for a period of three years and thereafter until terminated by one month's notice.
By Clause 3.7 and schedule 4 the first defendant agreed to demolish the stilted building and to rebuild the claimant's gable wall for the sum of £9,000. Clauses 5, 6 and 7 of the 1999 agreement provided as follows:
“5. For...
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