Salvage Wharf Ltd & Anor v G & S Brough Ltd

For the proviso to section 3 of the Prescription Act 1832 to prevent acquisition of a right to light by prescription, the relevant deed or writing must, on its true construction and in context, make the enjoyment of light permissive, consensual, or liable to future interference. An acknowledgement of subsisting rights, coupled with an agreement not to enforce them only so far as a defined development may adversely affect them, does not suffice. A contractual consent to a specified development does not extend to a materially different later redevelopment or to an unlimited notional obstruction. The statutory light obstruction notice procedure cannot be used to achieve more than the underlying agreement permits.

G & S Brough Ltd claimed declarations that its former premises at 25–29 Commercial Street, Birmingham, enjoyed prescriptive rights of light and that a light obstruction notice registered by Salvage Wharf Ltd should be cancelled. Salvage Wharf Ltd and Birmingham Development Company Ltd counterclaimed for alleged contractual breaches arising from objections to planning permission and compulsory purchase.

HH Judge Purle QC, sitting in the Chancery Division, granted the declarations and dismissed the counterclaim in his judgment of 28 April 2008. The defendants appealed. The central issues were whether the 1999 agreement caused the rights of light to be enjoyed by consent or agreement within section 3 of the Prescription Act 1832, and whether it authorised registration of a notice under section 2 of the Rights of Light Act 1959 in respect of The Cube redevelopment or an unlimited notional wall.

1. Appeal dismissed. The declarations in favour of G & S Brough Ltd were upheld, the light obstruction notice was to be cancelled, and the counterclaim was dismissed.
2. Under section 3 of the Prescription Act 1832, the relevant question was whether, during the statutory period, the access and use of light was enjoyed by consent or agreement expressly made or given for that purpose. The 1999 agreement acknowledged subsisting rights to light and restricted enforcement only so far as the defined Project might adversely affect them. It did not abandon the rights or make their continued enjoyment permissive. Its construction had to be assessed in context, including the development contemplated when the agreement was made and the commercial bargain.
3. The agreement was materially different from provisions which positively authorised the servient owner to build as he pleased and thereby prevented prescriptive acquisition. It did not trigger the proviso to section 3.
4. Section 2 of the Rights of Light Act 1959 permits registration of a notice equivalent to obstruction by the specified opaque structure. The notice could not validly be used in respect of The Cube, which was a later redevelopment extending beyond the original Project, or in respect of the unlimited notional wall shown on Drawing 115. Neither defendant was entitled to construct that wall in June 2006, so neither had the relevant entitlement to register the notice.
5. The court did not decide the competing arguments under sections 27 and 74 of the Land Registration Act 2002, section 19 of the Land Registration Act 1925 and rule 83 of the Land Registration Rules 1925, because the issue of which defendant held the relevant title did not arise once neither was entitled to construct the notional wall.
6. Clause 7.1 of the 1999 agreement was construed as intended to make clauses 4, 5 and 6 enure for the benefit of the developer and its successors. A court may correct an obvious drafting nonsense to give effect to the parties’ evident intention.
7. The claimant’s objections to planning permission and compulsory purchase were not contractual breaches. The agreement did not amount to consent to being dispossessed of the property.

• Court of Appeal (Civil Division): appeal dismissed. The court upheld the judgment of HH Judge Purle QC dated 28 April 2008, which had granted declarations recognising the rights of light, directed cancellation of the light obstruction notice and dismissed the counterclaim.