RHJ Ltd v FT Patten (Holdings) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Mummery,Lord Justice Lawrence Collins |
| Judgment Date | 12 March 2008 |
| Neutral Citation | [2008] EWCA Civ 151 |
| Date | 12 March 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/7007/1795/CHANF |
[2008] EWCA Civ 151
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
MR JUSTICE LEWISON
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Lloyd
And Lord Justice Lawrence Collins
Case No: A3/7007/1795/CHANF
Stephen Bickford-Smith (instructed by Michael Conn Goldsobel) for the Appellant
Andrew Francis (instructed by DLA Piper UK LLP) for the Respondents
Hearing date: 21 February 2008
Introduction
In this appeal the court has to consider the correct interpretation and application of section 3 of the Prescription Act 1832. That section deals with the acquisition of a right to light by enjoyment of light over a 20 year period.
The right to light is unusual among easements in a number of respects. One is that it does not exist for the benefit of the dominant land generally but only as regards the access to light to defined apertures in a building, so that enjoyment cannot start until a building is constructed on the land in question with windows to and through which light can pass. Another difference, more important for present purposes, is that the acquisition of the right by prescription under the 1832 Act depends only on actual enjoyment; the enjoyment does not have to be “as of right”, as it does in the case of other easements such as rights of way.
A consequence of this, as held by the Court of Exchequer Chamber in Frewen v. Philipps (1861) 11 CBNS 449, and confirmed by the House of Lords in Morgan v. Fear [1907] AC 425, is that a tenant can acquire a right to light over adjoining land even if that land belongs to his landlord and is let to another tenant. Common ownership is not relevant, although common occupation would be relevant.
Section 3 of the 1832 Act provides for one way of preventing the acquisition of the right, namely if the enjoyment of the light was by virtue of a consent or agreement. The question in this appeal is what is necessary to constitute such consent or agreement. The appeal is brought against an order of Lewison J made on 13 July 2007, by permission granted by the judge. The judge held that a particular provision in a lease of the claimant's land did amount to a consent or agreement within section 3, such as to prevent the claimant from relying on 20 years' enjoyment of light to constitute the prescriptive acquisition of a right under section 3. His judgment is at [2007] EWHC 1655 (Ch).
The facts
The various parcels of land which we have to consider are in Liverpool, on or near Strand Street, just south of where that road runs past the Three Graces. The claimant's land, the building on which is called Regian House, has a narrow frontage to Strand Street. The building itself is parallel to Strand Street and stretches from Redcross Street northwards to James Street, opposite James Street Station. To the north east of the claimant's property, lying between it and Derby Square, there are two buildings of peripheral relevance to the case, called Victoria House and Graeme House. To the south east of Regian House, at the corner of Strand Street and Redcross Street, is an area now occupied by a car park which belongs to the first defendant. Across Redcross Street, to the south of Regian House, and lying between Strand Street and the Queen Elizabeth II Law Courts in Derby Square, is an area belonging to the second defendant which has on it a low building called Strand House and behind that a car park.
Regian House seems to have been built in the 1970's. A deed dated 14 February 1978 mentions “the building recently erected” on that parcel of land. The land then belonged to Liverpool City Council. On 26 February 1980 the Council granted a 99 year lease of that land, running from 1975, to Possfund Trustees Limited. It is on that lease that the argument turns. Possfund Trustees Limited granted an underlease on the same date for the whole term less ten days. The freehold remained in the Council's ownership until May 2001 when the claimant bought it at auction. It seems that the claimant has since then bought in the interests under the lease and underlease.
Victoria House and Graeme House belonged to Standard Life Assurance Company and in 1978 both of them were subject to a lease to the Secretary of State for the Environment. By the deed which I have mentioned dated 14 February 1978, made between the Council, Standard Life and the Secretary of State, certain rights were granted and adjusted between the respective parties. By clause 3, express provision was made by reference to section 3 of the 1832 Act to the effect that the Council's enjoyment of any light over Victoria House and Graeme House to the windows of Regian House facing north east was on sufferance, so as to preclude the acquisition of any right to light under section 3.
The land now owned by the defendants also originally belonged to the Council. It remained in the Council's ownership until 1989, when it was sold to a predecessor in title of the defendants.
Light obstruction notices were registered by the defendants against Regian House in 2006 but, while nothing is admitted, it seems that light had been enjoyed to the many windows on the Strand Street side of Regian House for more than 20 years by then. However, for part of that period the 1980 lease was in existence and the question is whether during the subsistence of that lease, enjoyment of the light was affected by an agreement or consent within the terms of section 3.
The 1980 lease
The lease was of the land now owned by the claimant, together with various rights set out in the first schedule to the lease and subject to the exception and reservation to the lessor of other rights set out in the later part of that schedule. Nothing turns on the particular rights granted to the lessee, though I note that in paragraph (e) express reference is made to the deed dated 14 th February 1978 which I have already mentioned. Among the exceptions and reservations, paragraph (h) mentions rights to the access of light and air from Victoria House and Graeme House to the windows of Regian House. That corresponds, though in slightly odd terms, to the exclusion of the existence of any such rights by the 1978 deed.
Paragraph (i) is central to this case. It is as follows:
“Except and reserving to the Lessor and its lessees and others entitled to the like rights … (i) 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.”
Clause 2 of the lease is as follows:
“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 whether now held on lease from the Lessor or not or over any land to be hereafter acquired by the Lessor.”
The tenant's covenants which are set out in clause 3 include one, paragraph (xviii), relating to rights of light. Paragraph (a) of this requires the tenant not to obstruct the light to any window in any building of the lessor except by buildings erected with the lessor's prior consent. Paragraph (b) requires the tenant to allow the landlord to take steps in the name of the tenant to prevent the acquisition of rights of light over the demised property.
Clause 4 contains provisos which include one preserving expressly the landlord's freedom to deal with its adjoining or neighbouring property free from any of the covenants contained in the lease, thus demonstrating that its ability to exploit that land was not to be impeded by any suggestion that equivalent covenants ought to be imposed.
The landlord's covenants in clause 5 included an indemnity covenant in respect of any action taken to prevent the acquisition of rights of light under clause 3(xviii)(b), as well as a covenant for quiet enjoyment.
Of these provisions, only clause 2 and paragraph (i) of the first schedule are directly relevant, but the others show that the parties had well in mind actual and potential rights of light over, or in favour of, the demised property.
For the appellant, Mr Bickford-Smith contended that an agreement for the purposes of section 3 must make it clear that it is to render the enjoyment of light permissive or consensual. He can point to a precedent by which this is made clear to the point of over-emphasis, in clause 3 of the deed dated 14 February 1978. This is as follows:
“3(a) In further pursuance of the said agreement and in further consideration of the rights hereinbefore granted the Council hereby admits that it has no right to the access of light from the said land edged red on the said Plan No 4 to any of the windows in the building recently erected on the land edged blue on the said Plan and that the enjoyment of any such light is and shall be on sufferance
(b) The Council shall pay to Standard Life the sum of five pence per annum on each anniversary of the date of this deed (if demanded) as an acknowledgment that its enjoyment of the access to light is not as of right but by the permission of Standard Life and the Secretary of State only Provided that the failure to demand or to...
To continue reading
Request your trial
-
G & S Brough Ltd v Salvage Wharf Ltd and Another
...in Section 3) preclude any easement arising by prescription under the Act (see Willoughby v Eckstein [1937] Ch 167).” 54 In RHJ Limited v FT Patten (Holdings) Ltd [2007] EWHC 1665 (Ch); [2007] 4 All ER 744 the lease of an office block contained a provision excepting or reserving: “All righ......
-
Cgis City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd
...(as opposed to the dominant land generally) and its acquisition depends on actual enjoyment, not enjoyment as of right: RHJ Ltd v. FT Patten (Holdings) Ltd [2008] Ch 341 (" RHJ") at paragraph 2. 37 Section 4 of the 1832 Act provides that, for any interruption to have the effect of stopping ......
-
George v Thomas et Al
...simple owner against another fee simple owner. The English Court of Appeal in RHJ Limited v. FT Patten (Holdings) Limited & A nor [2008] E.W.C.A. Civ 151 at paragraph 2, per Lord Justice Lloyd, stated: “The right to light is unusual among easements in a number of respects. One is that it d......
-
Rights of Light Not For Sale Commercial Developers Should Not Assume That Rights of Light Can Be Bought Off
...08, Tim Foley explained the important decision of RHJ Ltd v FT Patten (Holdings) Ltd (1) and FT Patten Properties (Liverpool) Ltd (2) [2008] EWCA Civ 151. The decision assisted developers as the Court of Appeal took a wide interpretation of provisions in leases which were aimed at securing ......
-
Shining A Light On Interpretation
...proviso to section 3, with particular reference to the decision of the Court of Appeal in RHJ Ltd v FT Patten (Holdings) Ltd & Anr [2008] EWCA Civ 151. It also noted the following helpful passage from the judgment of Lightman J in Marlborough (West End) Ltd v Wills Head & Eve(Unrepo......
-
Meaning and Construction of Certain Restrictive Covenants which Impact on the Development and Commercial Use of Land
...an agreement was found not to fall within s 3 so as to extinguish a subsisting right to light. In RHJ Ltd v FT Patten (Holdings) Ltd [2008] EWCA Civ 151, it was held that a clause in a lease did not even have to refer expressly to light to fall within s 3 and thus prevent a lessee acquiring......
-
Creation of Easements and Profits
...be enjoyed through some aperture but not a doorway ( Levet v Gas Light & Coke Co [1919] 1 Ch 24). 52 RHJ Ltd v FT Patten (Holdings) Ltd [2008] Ch 341 at [48] (‘the question whether any particular document satisfies the exception in section 3 must depend on the true construction of the docum......