Key points

  • A right to light may be acquired by 20 years' use
  • No right will however be acquired if light has been enjoyed by consent or agreement
  • Whether a consent given in a conveyance is personal to a particular landowner, or binds successive landowners, will turn on the construction of the conveyance

Background

Rights to light can be acquired in a number of ways, one of them being by virtue of long use under the Prescription Act 1832. Section 3 of the 1832 Act provides that:

"When the access and use of light to and for any ... building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible ... unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed of writing" (emphasis added).

So no right to light can be acquired where there is a consent or agreement within the meaning of section 3.

Facts of CGIS City Plaza Shares 1 Limited v Britel Fund Trustees Limited

The claimants in CGIS City Plaza Shares 1 Limited v Britel Fund Trustees Limited owned the freehold of a building called City Plaza, in the centre of Birmingham. The defendants owned the freehold of an adjacent property called Bank House. The defendants did not have a current intention to redevelop Bank House, so what the claimants were seeking through the litigation was not an injunction to prevent development going ahead, but simply a declaration of their rights.

The claimants asserted that they had acquired a right to light by prescription through various of the windows in City Plaza, which was built in 1987-1989. There was no doubt that the majority of the windows had been in place long enough to satisfy the test, under the Prescription Act 1832, that light has been enjoyed continuously and without interruption for 20 years. However, the defendants argued that the enjoyment of light was by agreement, so no prescriptive right could have arisen.

1967 Conveyance

The case turned on the meaning of a clause in a 1967 conveyance of the land on which Bank House stood. That conveyance was made between the City of Birmingham Corporation as seller and the Bank of England as buyer. The land on which City Plaza now stands was retained by the Corporation and was referred to in the conveyance as the green land.

Clause 1 of the conveyance granted the following right to the buyer:

"full right and liberty for the Bank and its successors in title to build up to the extreme boundaries of the land hereby conveyed ... to any height notwithstanding that any such building may interfere with light or air now or at any time hereinafter enjoyed by the buildings for the time being erected on any adjoining adjacent or neighbouring land owned by or vested in the Corporation" (emphasis added).

The following right was reserved to the Corporation:

"full right and liberty to build up to the extreme boundary of [the green land] to any height notwithstanding that such buildings may interfere with the light or air now or at any time hereafter enjoyed by the buildings for the time being erected on the land hereby conveyed to the intent that all light or air at any time enjoyed by the land hereby conveyed or any buildings at any time thereon from or over the said adjoining land ... shall be deemed to be enjoyed by the leave or licence of the Corporation or their successors in title as the case may be".

Issue

At some point between 1967 and the construction of City Plaza, the green land ceased to be owned by the Corporation.

The question was whether the right to build granted in clause 1 of the 1967 conveyance was a "consent" or "agreement" within section 3 of the 1832 Act which would mean that light was enjoyed by City Plaza by consent only, even after the green land was no longer owned by the Corporation.

Was the consent personal to the Corporation?

The 1967 conveyance authorised the owners of Bank House to build despite any interference with the light enjoyed by "any adjoining adjacent or neighbouring land owned by or vested in the Corporation" (emphasis added). The claimants argued that this phrase meant that the rights were personal against the Corporation, and did not allow the defendants to interfere with light enjoyed by the relevant buildings once they had passed out of the ownership of the Corporation. The claimants argued that, once the Corporation had sold the land to a third party, the clock would start to run again for the purposes of acquiring a right to light, with the result that after 20 years' use, a right could be acquired.

The claimants pointed to a difference in wording between the right granted and the right reserved in the conveyance. The right reserved was in favour of the green land, as shown on a plan. This was a different form of wording from that used in the right granted in favour of the Bank House land, which referred to land owned by the Corporation. The claimants argued that the right reserved was clearly intended to benefit successive owners of the green land and this contrasted with the way in which the right granted had been drafted.

The court thought that it was probable that (as the Corporation owned other property in the vicinity at the time of the 1967 conveyance) the parties considered it appropriate for the purchaser to acquire the freedom to build to the maximum extent available, i.e. as against all of the Corporation's property

The court applied the test in Rainy Sky SA v Kookmin Bank: that if there are two possible constructions of a document the court is entitled to prefer the construction which is consistent with business common sense. The court therefore thought it more probable that the grant was identifying the buildings whose right to light could be infringed by reference to their location, rather than their ownership from time to time. In other words, the right to build on the Bank House land was not limited to a right as against the Corporation alone.

The consequence was that City Plaza's enjoyment of light over Bank House continued to subsist by virtue of the permission granted by the 1967 conveyance, even though the City Plaza land was no longer owned by the Corporation. The proviso to section 3 was therefore engaged with the result that no prescriptive right to light could have arisen.

Alteration to some of the windows

Had the claimants succeeded in showing that City Plaza did have a right to light as against Bank House, they would still have had to overcome a second hurdle. This was that some of the windows in City Plaza had been enlarged or altered in 2006, before the twenty year period expired. The question for the court in that instance would have been whether the alterations meant that the clock was "re-set" and the 20 year period would begin to run afresh in relation to those windows.

The light received through the new windows included some of the same light which was received through the old windows. The court ruled that just because a window had been altered during the running of the 20 year period did not mean that that period had to start again.

Where there is a co-incidence between the light enjoyed through the old and new windows, a right to light is capable of arising under the 1832 Act. The extent to which it does so will depend on the extent of the portion of the larger aperture which is co-incident with the pre-existing window.

Things to consider

Although this case turns very much on its own facts, it does illustrate the extent to which developers' and landowners' advisors will pore over conveyancing documents when a right which could inhibit development is at stake.

The Prescription Act 1832 is now a very old piece of legislation. The Law Commission is currently looking at possible reform to the law on rights to light. As part of that review it is examining how rights of light can be created, and in particular whether prescription (long use) should be retained.