THERE IS SOME GOOD NEWS FOR DEVELOPER
landlords. In the recent case of RHJ Ltd v FT Patten
(Holdings) Ltd and another a lease contained a
reservation of the right to build on adjoining
property, and this was held to prevent the tenant
from acquiring a right to light over that property. To
reach this decision, the High Court adopted a wide
construction of the reservation, which did not
specifically refer to rights of light, and this is likely
to assist developers in the future.
RESERVATION IN LEASE PREVENTED RIGHT TO LIGHT
The case related to an office block in Liverpool city
centre. The 99-year lease contained the following
reservation in favour of the landlords:
‘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.’
The question was whether the tenant had acquired a
right to light over the adjoining land by prescription,
pursuant to s3 of the Prescription Act 1832. Under
s3, where there has been actual enjoyment of
continuous light for 20 years without written consent
or agreement, then a right to light is acquired.
It was common ground between the parties that
the tenant had enjoyed 20 years of light without
interruption. The question for the Court was
whether the reservation in the lease constituted a
written agreement that would prevent the tenant
from acquiring a right to light.
Lewison J concluded that it did. He made a
distinction between two types of clauses:
clauses that deal with the position as it existed
at the date of the lease will prevent the creation
of easements by express or implied grant; and
clauses that deal with what might happen in the
future will prevent the creation of easements by
prescription if the works authorised by the clause
would interfere with light.
He decided that for the latter type, it was not
necessary for the clause to actually use the word
‘light’ (although he noted that it would be better if
it did).
An important feature of this particular clause was
that the landlord’s right to build was unfettered
(‘full and free’ and ‘as they may think fit’), which
supported the interpretation that it could not be
thwarted by a right to light.
INJUNCTION REMAINS THE PRIMARY REMEDY
While the above case is helpful to developers, the
case of Regan v Paul Properties Ltd and others serves as a harsh reminder of the potential
consequences of infringing rights to light. In this
case, the Court of Appeal acknowledged the
hardship to the defendant developer of granting an
injunction, but nevertheless considered that it was
necessary to protect the neighbour’s right to light.
The diminution in value of the affected property if
the building went ahead was only about £5,000
and Mummery LJ acknowledged that this was
considerably less than the cost to the developer
of demolishing what had already been built and
changing its plans. However, in the circumstances,
he concluded that the Court should not force the
claimant ‘to accept compensation… for losing the
light in respect of his home’.
The Court stated that an injunction will generally be
the primary remedy for infringement of a right to
light. Developers cannot assume that they can
overcome rights to light by paying financial
compensation to affected neighbours.
NOTICES UNDER THE RIGHTS OF LIGHT ACT 1959
The lesson is that developers are well advised to try
to resolve rights to light issues at an early date. One
method that is sometimes effective is the service of
notices under the Rights of Light Act 1959.
As mentioned above, the first hurdle to acquiring
rights of light by prescription under the 1832 Act is
20 years’ continuous light. Where the neighbour is
in the process of acquiring the 20 years’ light, the
1959 Act works by the creation of a notional
obstruction of light, and so prevents acquisition
of a right under the 1832 Act.
The procedure is as follows:
1) The developer instructs a specialist rights
of light surveyor to draw up plans
specifying the dimensions and position
of the notional obstruction.
2) The developer must then file an application with
the Local Land Charges Registrar.
3) The Registrar directs what notices should be
given to those affected (the applicant usually
supplies the Registrar with a list).
4) The developer must serve all the notices and
inform the Registrar when this is done.
5) The developer must apply to register the notice
as a Local Land Charge, upon which it operates as
a deemed notice to everyone for 21 years, and
has the effect of a deemed obstruction to the
neighbour’s light from the date of registration.
6) A notice can be challenged within one year of
registration. To challenge it, the neighbour has to
do what it would if the notice were an actual,
physical obstruction: go to court on the grounds of
an actionable interference with its right to light.
If the neighbour already has 20 years’ use, it can of
course object to the notice. Indeed, a developer
might use notification under the 1959 Act even if it
knows there are neighbouring owners who could
object. This tactic might be used to flush out any
disputes in advance of the building works, or even
just as a gamble, in the hope that the neighbouring
owner is careless and fails to dispute the notice.
By Helena Davies, solicitor, Cobbetts LLP.
