RHJ Ltd v FT Patten (Holdings) Ltd

JurisdictionEngland & Wales
CourtChancery Division
JudgeMR JUSTICE LEWISON,Mr Justice Lewison
Judgment Date13 July 2007
Neutral Citation[2007] EWHC 1655 (Ch)
Docket NumberCase No: HC06C02774
Date13 July 2007

[2007] EWHC 1655 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Mr Justice Lewison

Case No: HC06C02774

Between
RHJ Limited
Claimant
and
(1) Ft Patten (Holdings) Limited
(2) Ft Patten Properties (Liverpool) Limited
Defendants

Mr Stephen Bickford-Smith (instructed by Michael Conn Goldsobel) for the Claimant

Mr Andrew Francis (instructed by DLA Piper UK LLP) for the Defendants

Hearing date: 6 July 2007

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HONOURABLE MR JUSTICE LEWISON

MR JUSTICE LEWISON Mr Justice Lewison

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.

The 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 it there 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 I have mentioned. Standard Life Assurance Company 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.

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 its 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. It has been assumed for the purposes of the preliminary issue that Regian House has enjoyed twenty years' light between the date of its construction and the date when 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 Prescription Act 1832.

The 1832 Act

7

Section 3 of the Prescription Act 1832 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 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.”

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 his 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.” While 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 Ch D 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 on the terms of the lease; it is dependent on the established facts and the absence of a consent or agreement that satisfies the concluding part of section 3.

Agreement or consent: the 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 (unreported 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 Ch D 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).”

12

Mr Francis fastens on that part of Lightman J's summary which 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 emphasises 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 on which they are based, require, he says, that the writing relied on 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 (1887) 37 Ch D 36. 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 L.J. said:

“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,...

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2 cases
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