CGIS City Plaza Shares 1 Ltd & Anor v Britel Fund Trustees Ltd

For the purposes of the proviso to section 3 of the Prescription Act 1832, a conveyance may constitute consent to the enjoyment of light where, on its true construction, it authorises future building capable of interfering with that light. The consent may continue to operate after the dominant land has ceased to be owned by the original grantor if the instrument identifies the relevant buildings by their physical location rather than by changing ownership.

During the prescription period, alteration of a window does not necessarily restart the statutory period. The relevant question is whether the same light, or a sufficiently substantial part of it, continued to be enjoyed through the altered aperture. A merely de minimis coincidence is insufficient.

The claimants, registered proprietors of City Plaza, sought declarations that windows in the building enjoyed easements of light under the Prescription Act 1832, alternatively under the doctrine of lost modern grant. They also sought cancellation of a light obstruction notice registered under the Rights of Light Act 1959.

The principal dispute concerned the construction of a 1967 conveyance. The question was whether its authority to build notwithstanding interference with light applied only while the relevant land remained owned by the Corporation, or continued to protect the owners of the defendant’s property after that land had been transferred. The court also considered, as an alternative issue, whether alterations to five windows affected the acquisition of prescriptive rights.

1. Construction of the 1967 conveyance. Clause 1(b) was not merely a grant of liberty to build. It also imposed a restrictive obligation on the Corporation not to assert that prescriptive rights to light had arisen against the conveyed land. Section 79(1) of the Law of Property Act 1925 therefore applied in principle, but its statutory presumption was rebuttable by a contrary intention found in the wording and context of the instrument.
2. The words referring to buildings for the time being erected on adjoining, adjacent or neighbouring land owned by or vested in the Corporation were more naturally concerned with the physical identity and location of the buildings than with their ownership from time to time. The phrase “for the time being” qualified the buildings, not the Corporation’s ownership of the land. The clause therefore authorised interference with light enjoyed by City Plaza notwithstanding the subsequent transfer of City Plaza from the Corporation.
3. That authority constituted consent or agreement within the proviso to section 3 of the Prescription Act 1832. The claimants consequently could not acquire absolute and indefeasible prescriptive rights to light against the defendant’s property. The claim for declarations concerning the north-east façade failed.
4. Alterations. If the construction issue had been decided for the claimants, alterations made during the prescription period would not automatically have restarted the statutory period. The relevant inquiry was whether the same light continued to be enjoyed through the new apertures. Where there was sufficient coincidence between the old and new windows, the corresponding part of the right could arise by prescription. On the evidence, the green-hatched portions of the five altered windows satisfied that threshold. The precise extent of any rights, and whether future development would cause actionable interference, remained undecided.
5. The court therefore dismissed the claim for easements of light. The alternative doctrine of lost modern grant raised no different issue and was not separately examined.

First-instance decision. No prior appellate decision is stated in the judgment.