Midtown Ltd v City of London Real Property Company Ltd

A right to light is not infringed merely because the available light is reduced. The question is whether sufficient light remains for ordinary purposes, having regard to the building’s design and use. A written agreement may prevent prescriptive enjoyment from becoming absolute and indefeasible. The statutory power to override easements under section 237 of the Town and Country Planning Act 1990 requires the proposed development to be related to the planning purposes for which the land was acquired or appropriated. An injunction for infringement of a property right remains discretionary. Damages may be awarded where an injunction would be oppressive, particularly where the claimant’s loss is financial, the defendant acted reasonably, and the development would not materially affect the claimant’s actual use.

The claimants owned or occupied 43 Fetter Lane, London, adjoining a development site controlled by the defendant. They claimed prescriptive rights to light through windows facing the site and sought injunctions preventing construction of the proposed Triangle Building, alternatively damages.

The court considered whether the rights had been acquired, whether a 1930 conveyance authorised interference, whether section 237 of the Town and Country Planning Act 1990 applied, whether the proposed construction constituted a nuisance, and what remedy was appropriate. The claims involved both the freehold owner and the leasehold owners of the property.

1. Prescriptive rights. The claimants established rights to light under section 3 of the Prescription Act 1832. Enjoyment by successive tenants may contribute to the requisite period. The freeholder obtains the benefit of the tenant’s enjoyment, and section 62 of the Law of Property Act 1925 was sufficiently wide to pass rights in the course of acquisition. In any event, the freeholder’s subsequent deed granted the leaseholders a right to light and the claim was amended to rely on it.
2. 1930 conveyance. The conveyance was not a conventional restrictive covenant. Properly construed, it was a written agreement authorising the owners of the retained adjoining land to redevelop despite interference with light. It therefore negatived the operation of section 3 of the Prescription Act 1832 in respect of the Yellow Land and prevented the relevant enjoyment from becoming an absolute and indefeasible easement.
3. Section 237. Although the point was unnecessary because of the 1930 conveyance, section 237 of the Town and Country Planning Act 1990 did not assist the defendant. The proposed development had no causal or relevant connection with the historical planning purposes for which the local authority acquired or appropriated the land. A successor in title cannot rely indefinitely on an historical appropriation for an unrelated development. The court accepted the provisional limitation expressed in R v City of London Council, ex parte Master Governors and Commonality of the Mystery of the Barbers of London [1996] 2 EGLR 128.
4. Nuisance. The reduction in light was substantial. Applying Colls v Home and Colonial Stores Ltd [1904] AC 179, the relevant question was the light remaining, not simply the amount removed. The proposed development would constitute a nuisance, except in relation to the Yellow Land. Artificial lighting and the so-called 50/50 rule did not establish that no infringement occurred, although those matters were relevant to remedy.
5. Remedy. An injunction was refused for both claimants. The court applied the discretionary principles discussed in Jaggard v Sawyer [1995] 1 WLR 269 and related authorities. Midtown’s interest was financial and compensable; its probable redevelopment made a perpetual injunction potentially academic; and the defendant had acted reasonably. Kendall Freeman had no clear capital loss and the development would not affect its present or intended use. Damages were directed to be assessed. Any one-off payment for release of the rights was to be divided between the claimants, subject to separate losses attributable to either claimant.