Marlborough (West End) Ltd v Wilks Head and Eve: ChD 20 Dec 1996

A dispute between neighbours was settled by a deed with the following clause: ‘IT IS HEREBY AGREED AND DECLARED that notwithstanding that the Building Owners have placed windows in that part of their new buildings which overlook the premises occupied by the adjoining owner no right or easement of light or air exists in respect thereof or has been or shall at any future time be acquired by the Building Owners or any one deriving title through or under them and the adjoining owner and the Freeholders and all persons deriving title through or under them or either of them shall have the right to intercept light and air coming to the said windows.’
Held: the second and third limbs of this clause entitled the adjoining owner to redevelop in a way that would interrupt light. Accordingly the proviso to s.3 was triggered and the building owner did not acquire by prescription rights to light across the land of the adjoining owner. The nature of restrictive covenants was discussed. The judge also drew attention to the difference between acquisition by grant at the date of the disposition and acquisition by prescription based on actual enjoyment after that date.
Lightman J said: ‘Whether or not a document constitutes such a consent or agreement is a question of construction. In this context, care must be taken to distinguish between provisions designed to protect the servient owner by negativing the implication of a grant of an easement or the grant of analogous rights under the doctrine of non-derogation from grant or to establish by agreement the existing legal rights of the parties; and provisions designed to authorise the servient owner at a future date to carry out works or build as he pleases unrestricted by any easement of light in favour of the dominant land and notwithstanding any resultant injury to the light enjoyed. Provisions of the former character do not constitute either consents or agreements by the servient owner licensing or consenting to the future enjoyment of the access to light and accordingly do not prevent acquisition of light by prescription (see Mitchell v Cantrill (1887) 37 Ch D 36); but provisions of the latter character may be construed as consents or agreements permitting the enjoyment of light during the interim period and accordingly (as provided in Section 3) preclude any easement arising by prescription under the Act (see Willoughby v Eckstein [1937] Ch 167).’


Lightman J


Unreported, 20 December 1996


Prescription Act 1832 3


England and Wales


CitedWilloughby v Eckstein ChD 1936
The parties were tenants of the same landlord, the Grosvenor Estate in adjoining premises at Balfour Mews in Westminster. The plaintiff claimed for an infringement of his right of light from ancient windows by his neighbour, and also that the height . .
CitedMitchell v Cantrill CA 1887
In 1864 Sir Humphrey de Trafford granted a 999 year lease of a dwelling house ‘with all rights and appurtenances, legal, used, or reputed, to the said plot of land, except rights, if any, restricting the free use of any adjoining land or the . .

Cited by:

CitedMidtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
CitedRHJ Ltd v FT Patten (Holdings) Ltd and Another CA 12-Mar-2008
A right to light is an unusual form of easement in the sense that it exists only with regard to the access to light to defined apertures in a building (as opposed to the dominant land generally) and its acquisition depends on actual enjoyment, not . .
CitedCGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
CitedRHJ Ltd v FT Patten (Holdings) Ltd and Another ChD 13-Jul-2007
The court was asked whether the grant of a lease including a clause reserving: ‘All rights to the access of light or air from the said adjoining property known as Victoria House and Graham House to any of the windows of the demised property.’ . .
CitedSalvage Wharf Ltd and Another v G and S Brough Ltd CA 29-Jan-2009
The claimant had agreed with a developer in 1999 to allow a development which would have a minor affect on his light. The developer later extended the development, to increase the interference with the right to light, relying on the earlier . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 12 April 2022; Ref: scu.222586