Salvage Wharf Ltd and another v G&S Brough Ltd

Easement – Light – Obstruction – Respondent’s premises affected by appellants’ development – Parties entering into agreement concerning rights to light – Appellant developers registering light obstruction notice – Whether respondent abandoning rights to light by agreement – Whether appellants entitled to light obstruction notice – Appeal dismissedIn 1999, the appellant developers entered into an agreement with the respondent concerning the development of land and buildings close to the latter’s premises. By clause 6.1 of the agreement, the respondent acknowledged that the development could adversely affect its subsisting rights to light, air support and other easements and rights belonging to or enjoyed by the property. However, under clause 6.2, it agreed not to take any action to enforce those rights. The development was carried out, but a building that was to have been built behind the respondent’s property was not constructed. A large complex (The Cube), which was subsequently proposed, required the compulsory purchase of the respondent’s property. Outline planning permission was granted in February 2006. The appellants considered the issue of rights to light and, in June 2006, they applied for registration of a light obstruction notice, pursuant to section 2 of the Rights of Light Act 1959, against the respondent’s property. The notice stated, inter alia, that registration of the notice “was intended to be equivalent to the obstruction of access of light to the said building across our land which would be caused by the erection of an opaque structure of unlimited height [the notional wall]”. The notice was registered.The respondent’s property was designated for compulsory purchase, but the question as to whether it enjoyed rights to light would substantially affect the amount of compensation payable was far from academic. The respondent, in order to protect its position vis-à-vis rights to light applied for declarations that: (i) it was entitled to an easement to receive light through the windows of the property; and (ii) the light obstruction notice should be cancelled. The High Court held that, by virtue of section 3 of the Prescription Act 1832: (i) the respondent’s property enjoyed an easement of light through its windows; (ii) clause 6 of the 1999 agreement did not amount to an abandonment of that right; (iii) the project as described in the agreement did not include The Cube; and (iv) any interference with the respondent’s rights to light by that development would go beyond what was permitted by the 1999 agreement. The judge granted the declaratory relief sought by the respondent. The appellants appealed. Held: The appeal was dismissed.(1) The judge had been correct in allowing the respondent’s claim and directing cancellation of the light obstruction notice. (2) The respondent had not abandoned its rights to light by entering into the 1999 agreement, nor had it lost those rights by operation of the proviso to section 3 of the 1832 Act. On the proper construction of the 1999 agreement, clause 6, construed in its context and having regard to the surrounding circumstances, did not constitute a consent or agreement of the kind that would trigger the proviso to section 3 of the 1832 Act. Taken together, clause 6(1) and (2) did not in terms confer any rights but confirmed the existing rights of the owner, while imposing a restriction on their enforcement for a particular purpose. Although the effect was to enable the developer to carry forward a particular project without the risk of infringement proceedings, the owner’s continued enjoyment of its light was confirmed as a matter of subsisting rights. It was not “enjoyed by some consent or agreement expressly made or given for that purpose” within section 3 of the 1832 Act: Willoughby v Eckstein [1937] 1 Ch 167, Marlborough (West End) Ltd v Wilks Head & Eve unreported, 20 December 1996, and RHJ Ltd v FT Patten (Holdings) Ltd [2007] EWHC 1665 (Ch); [2007] 3 EGLR 1; [2007] 44 EG 182 considered.Where a written agreement as drafted was a nonsense and the intentions of the parties were clear, the court would, as a matter of construction, give effect to those obvious intentions. On a fair reading of the 1999 agreement, the respondent consented to a development that could cause some reduction in the amount of light entering its premises. It did not consent to a completely different development (that is, the notional wall) that would block all light. The 1999 agreement contemplated a development that would be completed within three years, whereas the light obstruction notice was not registered until more than seven years after the parties had entered into the agreement. The respondent’s rights to light were of considerable value and it would be remarkable if it had relinquished those rights for little in return: Investors Compensation Scheme Ltd v West Bromwich Building Society (No 1) [1998] 1 WLR 896 considered. Ashley Underwood QC and Stephen Bickford-Smith (instructed by Eversheds LLP, of Birmingham) appeared for the appellants; John Randall QC and John de Waal (instructed by Tyndallwoods, of Birmingham) appeared for the respondent.Eileen O’Grady, barrister