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 conversion or appropriation at any time thereafter of such land for building or other purposes, obstructive or otherwise.’ A house was built on the adjoining land and this was leased to a Mr Cantrill. Mr Cantrill’s executrix sought to build an extension on the Cantrill land which interfered with light to the plaintiff’s windows. The plaintiff applied for an injunction to restrain the building works. The question was whether the exception of easements was an agreement or consent for the purposes of section 3.
Held: The court eversed the decision of the District Registrar in the Palatine Court, held that the plaintiff was entitled to an injunction. The clause quoted above did not trigger the proviso to s.3.
Cotton LJ said: ‘Now does this clause which I have read bring it within that? In my opinion it does not. It is not an agreement given for the purpose of the enjoyment of the light, but it is simply an exception out of the grant made of appurtenances and rights, so as to prevent the lessee from urging as against the landlord or anybody claiming through him, before a right had been obtained under the statute, that the landlord could not derogate from his own grant either by his building or granting to anybody else a right to build so as to interfere with the Plaintiff’s lights. That is the reasonable, and I think, the only meaning of this clause. It was in effect saying, ‘If I grant this house to you without protecting myself, you will say, if I build up any adjoining house, that is derogating from my own grant; and this clause is to prevent any such contention being made.’ But if independently of the grant the lessee has enjoyed the use of these windows for twenty years he will have the same right as against the adjoining lessee as against a stranger. There was certainly no case referred to in the argument to shew that such claim as is contended for by the Plaintiff exists. But he has the right simply by the effect and operation, not of the grant, but of the statute, and in my opinion he is entitled to enforce that.’
Then there was another point which was suggested, that this must be considered an agreement between the landlord and the lessee, that the landlord should be at liberty if he thought fit to do anything, even although it would operate so as to interfere with his right to light; but I do not think that is the true meaning of it. If you had an express proviso in the contract between the parties that, notwithstanding the grant to the Plaintiff, the landlord should be at liberty to build so as to interfere with his right, that would be another point, but that is not the express form of it, and in my opinion the fair and clear meaning of this clause, construing it without reference to the consequences to one party or the other, is not anything of that sort.’
. .and: ‘The enactment is this, that the right to light is granted where there has been an enjoyment of the access and use of light for twenty years, ‘unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.’ Now does this clause which I have read bring it within that? In my opinion it does not. It is an agreement given for the purpose of the enjoyment of the light, but it is simply an exception out of the grant made of appurtenances and rights, so as to prevent the lessee from urging as against the landlord or anybody claiming through him, before a right had been obtained under the statute, that the landlord could not derogate from his own grant either by his building or granting to anybody else a right to build so as to interfere with the Plaintiff’s lights. . . .If you had an express proviso in the contract between the parties that, notwithstanding the grant to the Plaintiff, the landlord should be at liberty to build so as to interfere with his right, that would be another point, but that is not the express form of it, and in my opinion the fair and clear meaning of this clause, construing it without reference to the consequences to one party or the other, is not anything of that sort.’
Lindley LJ said: ‘The last words in the section mean that when you find an agreement under which the light is enjoyed you must look at that agreement and see what, if any, right to light is expressly given by it. Here the Plaintiff falls under the words of the statute, and it appears to me the contention of the Defendant is not warranted by the words at the end of the section. There is nothing except the grant coupled with the words which Cotton LJ has alluded to, and which obviously are for the purpose of preserving to the lessee a right, until an adverse right is acquired, of doing what he likes with the adjoining property. Under the grant he could deal with that property as he liked within the twenty years, and within that period he might have blocked up all these lights; but after the Plaintiff has enjoyed them without interruption for twenty years the statute confers upon him the right to their future enjoyment. I think therefore this appeal should be allowed.’
Lopes LJ saw the exception as directed only to acquisition by the original grant, rather than by subsequent enjoyment. As to the argument that the exception was a consent or an agreement within section 3 he said ‘for the reasons which have already been given I am clearly of opinion that cannot be brought within those words’.
Judges:
Cotton, Lindley, Lopes LJJ
Citations:
(1887) 37 Ch D 36
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – 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 . .
Cited – RHJ 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.’ . .
Cited – Salvage 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.
Landlord and Tenant, Land
Updated: 08 May 2022; Ref: scu.567939