Midtown Ltd v City Of London Real Property Co Ltd (2005)
A substantial diminution in the amount of natural light reaching an office building was an interference with rights to light constituting a nuisance even though all the rooms of the property were habitually lit by artificial light whenever they were used.
The claimant freeholder (M) and leaseholders (L) of a London office building sought injunctive relief, or damages in lieu, against the owner of a neighbouring site (C) claiming that they had a right to light acquired by prescription which would be interfered with to a substantial degree by C's proposed development of its site. C had planning permission for a new development on its site. M and L alleged that the development would interfere with their right to light acquired by prescription pursuant to the Prescription Act 1832 s.3 and s.4 by virtue of enjoyment without obstruction for 20 years immediately before the claim. L held leases of 1978 and 1993, the former expiring in 2001 and the latter commencing on its expiry and extending to 2018. In the course of trial, after C took the point that L could not show 20 years' enjoyment of light since they could only rely on enjoyment pursuant to the 1993 lease, M granted L a right to light in respect of the property and C conceded that M had acquired a right of light in respect of the freehold of the property by 20 years' user which it had assigned by deed. L applied to amend their claim accordingly. L submitted that it should have permission to amend in order to rely on the grant of a right to light by M, but that in any event rights in the course of being acquired under the Prescription Act 1832 were capable of passing under the Law of Property Act 1925 s.62 so that the rights in process of being acquired by M passed by implication under s.62 on the occasion of the 1993 lease. C submitted that it was entitled to interfere with the claimants' rights to light on the basis of a 1930 conveyance of part of its site which contained a provision intended to prevent the operation of s.3 of the 1832 Act, and because part of its site had been acquired by the local authority for planning purposes in 1956 as part of the regeneration of London following war damage and the Town and Country Planning Act 1990 s.237 therefore overrode any right to light; and that any loss of natural light was immaterial because a London office building was always lit internally by artificial light.
(1) L should have permission to amend to rely on the grant of a right of light by M. In any event the wording of s.62 of the 1925 Act was sufficiently wide to pass on rights in the course of being acquired, even if they were precarious. (2) The clear purpose of the provisions in the 1930 conveyance was to enable the owners of C's site and their successors to redevelop the site notwithstanding that that might interfere with the light then or thereafter enjoyed by the owners or occupiers of the neighbouring property. That agreement negatived the effect of s.3 of the 1832 Act. In respect of that land, C could rely on the provisions of the 1930 conveyance to override any rights to light enjoyed by the area of land affected by that conveyance, Marlborough (West End) Ltd v Wilks Head & Eve (unreported, December 20, 1996) followed. (3) If a local authority or a successor of a local authority wished to rely on the power to override under s.237 of the 1990 Act, where the land had been appropriated for a planning purpose, the proposed development, which it sought to impose on adjoining owners, had to be related to the planning purposes for which the land was acquired or appropriated. In the instant case C's proposed development was completely unconnected with the original purpose of the 1956 acquisition which had been satisfied by 1960. Therefore C could not have relied on s.237, R v (1) The Mayor and Commonalty and the Citizens of London (2) Royal London Mutual Insurance Society, Ex parte the Master Governors and Commonalty of the Mystery of the Barbers of London Times, June 28, 1996 considered. (4) Save in respect of the land affected by the 1930 conveyance, the claimants had established rights of light and C's development of its site would affect those rights. (5) C's development would cause an interference with the claimants' rights to light amounting to a nuisance even if in practical terms no use was made of the natural light to the building because the offices were lit by artificial light. (6) M was not entitled to an injunction and was entitled to damages to be assessed for infringement of its right to light, Jaggard v Sawyer (1995) 1 WLR 269 applied. M was only interested in the property from a money making point of view and if the value of the property had been diminished that could be calculated and compensated. There was probably no present loss because of the existing lease and it seemed that M had in mind redevelopment proposals of its own, which would make the injunction academic. For similar reasons L were not entitled to an injunction. Their rights if infringed would suffer even less damage than that of M. (7) The court directed an inquiry as to damages.
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20 Jan 2005
Peter Smith J
LTL 31/1/2005;  EWHC 33 (Ch)
John McGhee QC