Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd

APPROVED JUDGMENT

I direct that pursuant to CPR PD 39A para 6A no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic

Introduction

This is a dispute regarding rights to light between two property companies.

The Claimant owns the “dominant tenement” in the technical language used in easement cases, which I will refer to as the “dominant land”, an office building not currently in use, known as the “Olsen” building after a previous owner, at 64/65 Vincent Square, Westminster.

The Defendant owns the servient land (technically, the “servient tenement”), an adjoining development site. That site was formerly the Rochester Row Magistrates Court and Police Station. As part of the redevelopment, the Defendant has knocked down a single storey flat roofed building and put up a t-shaped 3 storey building with a pitched roof. It is this development which the Claimant says will interfere with the light to certain windows in the Olsen building.

There are four relevant windows facing the development, each at ground floor level. Although in principle each window should be looked at separately, much of the evidence and discussion has for convenience grouped them into two groups of two windows each. The two groups are respectively the entrance lobby windows and the basement staircase windows.

The parties agree that there are three sets of issues to be decided at this trial:-

(i) Does the Olsen building have a right to light through each of the four windows?

(ii) If so, has there been or will there be an actionable infringement of that right arising from the development in respect of any one or more of the four windows?

(iii) If so, what is the appropriate remedy?

Issue (1): Have rights to light been established in respect of the entrance lobby windows ?

Although no admission has been made in respect of the basement staircase windows, there is no real issue that the Claimant can rely on a right for the Olsen building to receive light through those two windows. The nature of that right to light and further questions will be dealt with below.

The position of the entrance lobby windows is, however, very different. The Claimant accepts that I must assume that throughout the relevant 20 years prescription period these windows have been completely blocked on the inside by means of panelling which is part of the design of the entrance lobby. It follows that throughout the 20 year period the entrance lobby has received no light through these windows. At the invitation of the Claimant and without objection from the Defendant I visited the site with Counsel and others and saw for myself that the panelling has a solid appearance and it is impossible to tell from the inside of the Olsen building that there are two windows behind the panelling. During the site visit I also looked at the windows from the outside. Whether because of the type of glass or the nature of the lighting, or because of the nature of the internal obstruction, I could not see from the outside anything of the obstruction on the inside. I could not in fact see anything on the inside of the Olsen building from the outside, looking through these two windows.

The question that arises is whether such a blockage of the windows from the inside for the entirety of the prescription period prevents a right to light through those windows being acquired on behalf of the Olsen building.

Smith v. Baxter

The Defendant relies on the case of Smith v. Baxter [1900] 2 Ch 138, a decision of Sterling J. Focusing only on the material parts of the facts of that case, parts of the relevant windows were near printing machines at which printers worked with their backs to the light “and it was found that accidents repeatedly occurred by which these portions of the windows were broken”. (At page 140). Those portions were therefore blocked off. With regard to another window, about one half of the area of the window had been covered by open shelving used for drying printing work. The shelves were from 3 inches to 1 foot apart and projected about 2 feet and caused “a material interference with light, though a substantial quantity of light still passed into the plaintiffs building”.

There was some debate between Counsel before me as to whether in Smith v. Baxter the boarding up of those parts of the windows which were repeatedly broken was on the inside or the outside, but it seems to me that as a matter of common sense the boarding must have been on the inside, that being the clear inference from the stated rationale that the boarding took place to prevent the windows (ie the panes) being broken. Boarding from the outside would not have prevented the window panes being broken (or at least it was unlikely to have prevented it) and the possibility that the boarding up was on the outside combined with the removal of the panes, whilst possible, seems a less probable inference than the more obvious one of boarding up from the inside. I was informed that no question of a “window tax” would have arisen. (In fact, I believe it was abolished in 1851.)

Sterling J held that since the boarding up of parts of certain windows “absolutely excluded the light which arrived at those portions of the windows” there was no “user of the light actually enjoyed for the prescriptive period”. By contrast the shelving did not entirely exclude the light, but allowed a substantial portion of it to pass” and as a result “a sufficient ease” for a right to light was made out with regard to that window.

On the basis of Smith v. Baxter therefore, it would appear that the complete boarding up in the present case of the windows in the reception area throughout the entire prescriptive period, even though it was on the inside, means that no right to light was acquired. However, Mr Wonnacott for the Claimant suggested that the position one might have derived from Smith V. Baxter was altered by subsequent case-law, which made it clear that the internal arrangement of the dominant land was irrelevant and he submitted that it was sufficient that light entered the dominant land through the relevant windows and illuminated the back of the boarding put in place excluding the light from the reception area.

It is true that subsequent eases such as Price v. Hiliditch [1930] Ch 500 (the “scullery” case) show that the use to which an internal room or space is put does not restrict the width of the easement acquired. Thus in that case, whilst the light that remained after the new obstruction may have been sufficient for the use of the room as a scullery, the prior use as a scullery had not restricted the width of the right to light obtained by the dominant land. This approach can for convenience be called the “internal arrangement rule”, namely that the extent of the property right by way of easement that is acquired is not restricted by the particular internal arrangement of the building at the time the right to light is acquired.

It seems to me, however, that the internal arrangement rule relates to the width of the right acquired and not as to the question of whether it is acquired at all. Acquisition of the right in the first place requires in the present case compliance with section 3 of the Prescription Act 1832, which in turn requires that the “access and use of light to and for any dwelling house … shall have been actually enjoyed therewith …“. This strikes me as being a completely separate and anterior question which has to be answered before one can consider the width of the right acquired. For the purposes of the anterior question, what matters is whether the access to light is “actually enjoyed” within the statute.

In this context, the word “enjoyed” plainly does not refer to taking delight or pleasure. Sterling J in Smith v. Baxter [1900] Ch 138 at page 144 stated:

-“I take “enjoyed” to mean “having had the amenity or advantage of using” the access of light; that is nearly equivalent to “having had the use”, the intention being that the owner of a house may acquire the right to have the access of light over adjoining land to an opening which he has used in such manner as suited his convenience for the passage of light during 20 years”.

This passage is itself part of a quote from the judgment of Kay J in Cooper v. Straker (1888) 40 Ch D 21. A further passage in that case, even more relevant to the facts of the present ease, deals with the non-acquisition of rights to light: in the case of 'windows with iron shutters fixed behind them,”… the essential word in that sentence is 'fixed,' which obviously means either shutters that will not open, or shutters that are never, in fact, opened during the twenty years.” [emphasis added]

That passage seems to be exactly in point: the partition which entirely blocks the windows in the present case “will not open” and was “never, in fact, opened during the twenty years”.

Even in the absence of authority, if one were to ask oneself the question whether the dominant land in this case enjoyed the amenity or advantage of using the access of light through the two relevant windows the answer seems to be clear: it did not. The dominant land could have used the access of light for any purpose that suited its convenience “for the passage of light” but in reality did not use it at all.

I cannot accept Mr Wonnacott's suggestion on behalf of the Claimant that the light was used to illuminate the...