In G&S Brough Ltd v Salvage Wharf Ltd, the Court of Appeal had to consider whether the claimant could enforce a right to light against the owner of an adjoining property, who was a developer.

The developer was involved in a large development in Birmingham known as the Mailbox. In 1999, the claimant entered into an agreement with the developer. Clause 6 of the agreement provided:

"6.1 the Owner acknowledges that the Project may have adverse effects on subsisting rights to light air support and other easements and rights belonging to or enjoyed by the Property

6.2 the Owner undertakes and agrees with the Developer not to take any action to enforce any rights referred to in clause 6.1 above".

The "Project" was defined in the agreement by reference to a plan, and was essentially the Mailbox scheme.

The dispute in the case arose as a result of proposals for a subsequent development called the Cube. The Court of Appeal found that the Cube development did not form part of the original Project as defined in the 1999 agreement.

The claimant's property was earmarked for compulsory purchase in order to allow the Cube development to proceed. Whether or not the property had a right of light was likely to have a substantial effect on the compensation payable for compulsory purchase.

Section 3 of the Prescription Act 1832 provides that, when light to a building has been enjoyed for twenty years without interruption, the right to light shall be deemed to be indefeasible. This is subject to an important proviso; that the light shall not have been enjoyed by virtue of a written "consent or agreement" expressly given for that purpose.

The developer argued that clause 6 of the 1999 agreement amounted to a "consent or agreement" within the meaning of section 3, with the result that the claimant no longer enjoyed a right to light.

The Court of Appeal noted that, on face-value, clause 6.2 appeared to be an agreement by the claimant not to enforce its rights, expressed in unrestricted terms. However, in context, it had to be read as implicitly limited by clause 6.1. Clause 6 acknowledged the claimant's subsisting rights to light. If the project had "adverse effects" on those rights of light, the claimant agreed not to take enforcement action. The court ruled that the claimant did not, by virtue of the 1999 agreement, abandon or agree to abandon its rights to light. On the proper construction of clause 6, it did not constitute a "consent or agreement" within section 3 of the 1832 Act.

A second issue in the case concerned the registration of a light obstruction notice by the developer in June 2006. Under section 2 of the Rights of Light Act 1959, a landowner may register a notice with the local authority for the purpose of interrupting a right to light claimed by another landowner. The registration of a notice is intended to be equivalent to the obstruction of the access of light which would be caused by the erection of an opaque structure (the dimensions and position of which are specified in the notice). This useful procedure avoids the need for structures to be erected and then demolished following a court order.

The claimant applied for the cancellation of the light obstruction notice.

The court held that the developer was not entitled to build the notional structure. The structure bore no relationship to the development described in the 1999 agreement. By June 2006 the development contemplated by the 1999 agreement was substantially completed. That development did not involve the notional structure, or anything like it. On a fair reading of the 1999 agreement, the claimant was consenting to a development which may cause some diminution of light entering the claimant's property. The claimant was not consenting to a completely different development (i.e. the notional structure) which would completely block all light from passing through the claimant's windows.

While accepting that the consideration for an agreement does not have to be adequate in order to constitute valid consideration in the eyes of the law, the court thought that it would be "most remarkable" if the claimant had given up obviously valuable rights of light and had received virtually nothing in return. The Court of Appeal therefore upheld the decision of the High Court to direct cancellation of the light obstruction notice.

Things to consider

It is essential when compromising a right to light claim that both parties are clear on exactly what they have agreed and that the documentation reflects this. At one end of the spectrum is what the court found in this case - the person with the benefit of the right to light simply grants permission to build. The consented development should be carefully defined - often by reference to the relevant planning permission. One step on from this would be to agree a certain level of tolerance from that planning permission which would be acceptable.

At the other end of the spectrum is a complete release. This case shows that the courts will be wary of interpreting agreements in this way, especially where the holder of the right to light has received little by way of compensation.