RHJ Ltd v FT Patten (Holdings) Ltd & Anor

For the exception in section 3 of the Prescription Act 1832, an express written consent or agreement need not use the word “light” or refer to the statute. The question is whether, construed in its full context and by ordinary principles, the provision makes enjoyment of light permissive, terminable or liable to interference. If so, the enjoyment cannot become absolute and indefeasible through 20 years’ use.

A lease reservation giving the landlord an unrestricted future right to build, rebuild or alter on adjoining land may have that effect. A provision which merely excludes an immediate implied grant is different. There is no special rule requiring a lease to be construed narrowly against a landlord unless genuine ambiguity justifies contra proferentem.

RHJ Ltd owned Regian House in Liverpool. Its predecessor held the property under a 1980 lease from Liverpool City Council. The lease reserved to the Council and others an unrestricted right to erect, rebuild and alter buildings on adjoining land or across adjoining streets.

The respondents registered light obstruction notices in 2006. RHJ contended that light to Regian House had been enjoyed for more than 20 years and had become a prescriptive right. The issue was whether the lease reservation was a consent or agreement within section 3 of the Prescription Act 1832, preventing that acquisition. Lewison J held that it was: [2007] EWHC 1655 (Ch). RHJ appealed.

1. Appeal dismissed unanimously. Lloyd LJ, with whom Lawrence Collins LJ and Mummery LJ agreed, upheld Lewison J’s conclusion that the reservation in the 1980 lease prevented prescriptive acquisition of a right to light.

2. Section 3 of the Prescription Act 1832 requires an express consent or agreement in a deed or writing, made for the relevant purpose. It does not require express words referring to light, windows or section 3. The provision must instead be construed according to ordinary principles. It will satisfy the section if its true effect is that enjoyment of light is permissive or consensual, or may be terminated or interfered with, so that enjoyment cannot become absolute and indefeasible after 20 years.

3. The court approved the distinction between a provision which only excludes an immediate grant of a right to light and one which regulates the future position. The former does not ordinarily prevent prescription. The latter may do so where it authorises future building which may obstruct light. There is no special principle requiring a lease to be construed narrowly against the landlord; contra proferentem is available only where genuine ambiguity remains.

4. Clause 2 excluded an immediate grant, but paragraph (i) of Schedule 1 was directed to the future. Read with the lease as a whole, its unrestricted reservation of rights to build, rebuild and alter on neighbouring land necessarily included acts capable of obstructing light. It would be perverse to treat the paragraph as addressing every prospective constraint on development except rights to light. The enjoyment was therefore subject to an agreement within section 3, and could not mature into a prescriptive right.

• Court of Appeal (Civil Division): Appeal dismissed. The court affirmed the construction adopted by Lewison J.
• High Court, Chancery Division: Lewison J held that the lease reservation was a consent or agreement within section 3 of the Prescription Act 1832: [2007] EWHC 1655 (Ch).