Willoughby 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 of the new building was such as to prevent the proper escape of smoke from his chimneys, and was an actionable nuisance. The lease under which the plaintiff held his property conferred upon the tenant certain rights over adjoining land but continued: ‘but without including any rights of light or other easements over other ground or premises and subject nevertheless to all rights and easements belonging to any adjacent property and subject to the adjacent buildings or any of them being at any time or times rebuilt or altered according to plans both as to height elevation extent and otherwise as shall or may be approved of by the ground landlord for the time being.’
Held: The claim for nuisance disclosed no actionable case, and was struck out. Any immediate right of light had been expressly excepted out of the demise.
Luxmoore J said: ‘It is to be observed that the exception to be operative must fulfil three conditions: (a) the agreement must be by deed or writing, (b) it must be express, and (c) it must also have been entered into for the purpose referred to in the section. There is no difficulty with regard to (a) and (b). The real difficulty appears to me to arise on (c). The purpose referred to in the exception to the section is described in the section as ‘that purpose.”
After reviewing the authorities he said: ‘I think the principle to be deduced from these decisions is that in order to prevent the acquisition of a statutory right to light under the Prescription Act there must be an express written agreement under which the actual enjoyment of light by a lessee is permissive throughout the whole of the term created by the lease.’ Applying that approach to the document and having referred in particular to the words about rebuilding or altering the adjacent buildings, he concluded: ‘Taken in conjunction with the exception they appear to me to constitute a grant by the lessee of the right to build during the full term of the demise on the adjacent land including No. 15 Balfour Mews, notwithstanding the effect of such building on the light to No. 13 Balfour Mews; and to constitute, together with the exception from the demise of any right to light, an agreement by the lessee of No. 13 Balfour Mews that any enjoyment of light in respect of the premises demised to her was to be permissive only throughout the whole of the term.’ Accordingly the agreement did come within the terms of section 3.
The court must apply the law as it thinks it stands.


Luxmoore J


[1937] 1 Ch 167, [1936] 1 All ER 650


Prescription Act 1832 3

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 . .
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 . .
CitedMarlborough (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 . .
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.


Updated: 16 May 2022; Ref: scu.222585