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Neutral Citation Number: [2005] EWHC 33 (Ch) |
|
|
Case No: HC04C02549 |
IN THE HIGH COURT
OF
JUSTICE
CHANCERY DIVISION
|
|
Royal Courts of Justice Strand, London , WC2A 2LL |
|
|
20 January 2005 |
B e f o r e :
THE HONOURABLE MR JUSTICE PETER SMITH
____________________
Between:
____________________
Mr John McGhee QC and Mr Jonathan Karas (instructed by Wragge & Co LLP) for the Claimants
Mr Paul Morgan QC and Mr David Forsdick (instructed by Nabarro Nathanson) for the Defendant
Hearing dates: 15th to 20th December 2004
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Mr. Justice Peter Smith :
INTRODUCTION
- The Claimant in case number HC0402537 ("
Midtown
") is the freehold owner
of
43 Fetter Lane,
London
EC4 ("the
Property
"). The
Property
is let to Kendall Freeman, a firm
of
Solicitors. The lease
of
the
Property
is vested in the Claimants in case number HC04C02549, who are four
of
the partners in Kendall Freeman, who hold it upon trust for the partnership.
- The Defendant is a member
of
the Land Securities Group
of
companies. Through its associated companies Cedric (New Fetter Lane) (No. 1)
Ltd
. and Cedric (New Fetter Lane) (No.2)
Ltd
., it has a long leasehold interest in a large site to the east
of
the
Property
on the other side
of
New Fetter Lane, known as the New Street Square Site ("the Site"). Subject to fulfilment
of
a number
of
conditions (including the conclusion
of
a section 106 agreement) the Local Planning Authority resolved to grant planning permission for a comprehensive development
of
the Site on 27th April 2004. The Defendant has recently commenced a soft strip
of
the buildings on the site and proposes to commence full demolition in January 2005 and for the construction
of
new buildings on the Site to commence in June 2005.
Midtown
and Kendall Freeman claim that they have a right to light acquired by prescription to windows on the south eastern side
of
the
Property
, which overlook the Site and this right to light would be interfered with to a substantial degree if the proposed development on the Site were allowed to proceed as planned. In particular they object to the erecting
of
one
of
the proposed buildings on the Site, which would be immediately adjacent to the
Property
on the east side
of
New Fetter Lane and is referred to variously as "Building A" or the "Triangle Building" (the shape
of
the footprint
of
the proposed building).
Midtown
and Kendall Freeman seek injunctive relief to restrain the Defendant from erecting the Triangle Building or otherwise interfering with their right to light through the windows on the south eastern side
of
the
Property
. Alternatively, they seek damages in lieu
of
an injunction.
- The Claim Forms were issued on 3rd and 4th August respectively. The Claimants applied for summary judgment, but on 13th September 2004, by consent I made an order that the application be adjourned to a trial and directions were made, in effect, for a speedy trial on the question
of
liability and the Claimants' entitlement to injunctive relief. The question
of
the quantum
of
any damages to which the Claimants may be entitled if injunctive relief is refused was reserved to a separate enquiry after the trial.
THE CLAIMANTS RIGHT TO LIGHT
- The Claimants claim that their right to light was acquired by prescription pursuant to section 3
of
the Prescription Act 1832, which provides a right to light to a building is "absolute and indefeasible" if it "shall be naturally enjoyed therewith for a period
of
twenty years without obstruction". By section 4, the relevant period, is the period immediately before the commencement
of
the claim. Accordingly the Claimants need only show that light through the south eastern windows
of
the
Property
has been enjoyed since August 1984.
- The
Property
was constructed in the late 1950's or early 1960's and does not appear to have materially altered since then. There is only evidence however, that the windows fronting New Fetter Lane have been there since 1982, when D J Freeman & Co. (now known as Kendall Freeman) took up occupation
of
the
Property
.
THE CLAIMANTS' TITLE TO THE
PROPERTY![](/images/contextdown.png)
Midtown
is registered as the proprietor
of
the freehold title
of
the
Property
under title number 410132.
- Entry numbers 6 and 7 on the charges register show that the freehold is subject to leases dated 12th January 1978 and 5th March 1993 registered under title number NGL320354. The four Claimants in the Kendall Freeman claim are the registered proprietors
of
this title.
- The 1978 lease was made between Navcot Shipping (Holdings)
Ltd
. and the Lummus Co.
Ltd
., and was for a term from 12th January 1978 to 6th August 2001. The 5th March 1993 lease was a reversionary lease made between Exceptbreak
Ltd
. (1) and Messrs Solomon Joseph and Others (being the then partners in D J Freeman & Co.) in whom the remainder
of
the term
of
the 1978 was then vested. It was for a term commencing on the expiry
of
the 1978 lease on 6th August 2001 itself expiring on 24th March 2018. Since 1982, the 1978 lease and since 1993 the 1993 lease have been vested in four partners
of
D J Freeman and Co. and subsequently Kendall Freeman on trust for the Partnership.
- In paragraph 8
of
the Amended Defence in respect
of
the Kendall Freeman claim the Defendant contended that Kendall Freeman could not show twenty years enjoyment
of
light, since they could only rely on enjoyment pursuant to the current 1993 lease, the term
of
which commenced on 6th August 2001. The point was not taken by the Defendant in the
Midtown
claim (for self evident reasons, in that
Midtown
derives title to succession
of
the freehold title).
- The argument is based on the contention by the Defendant that an easement
of
light must be annexed to an estate. The estate in question can only be the 1993 lease and that commenced on 6th August 2001. At the time
of
the expiration
of
the 1978 lease there is no evidence to show the requisite twenty years user. Further, the 1978 lease is an under lease. Kendall Freeman do not assert an express grant
of
a right
of
light by virtue
of
the under lease derived from the freehold or head leasehold interest. Nor do they assert the 1993 lease expressly granted any rights. If there were a right asserted to be granted by the 1978 lease, then it would be necessary to know whether the freeholder
of
43 Fetter Lane has acquired a right to light by that time and it would also be necessary to know whether the freeholder granted the right to light to the head lessee when it granted the Head Lease. No deduction
of
the title was produced at the commencement
of
the trial.
- Further, the Defendants submit that any rights granted under the 1978 lease would have then ended on the termination
of
the 1978 underlease on 6th August 2001.
- Kendall Freeman in their Reply, asserted that any rights that were in the process
of
being acquired under the Prescription Act by the time
of
the 1993 lease (but which had not by that time ripened into an absolute easement) would pass under section 62
of
the Law
of Property
Act 1925. The objection by the Defendant to that is that there is no evidence showing Exceptbreak's known interest in the premises in 1993 and it is not know whether it was a freeholder or a head lessee and if a head lessee what was the date and terms
of
such head lease.
- This argument undermines the Claimants' argument claiming to rely upon the combined user under the two successive leases. Mr McGhee QC points out in the skeleton argument for the Claimants, the enjoyment
of
a light or any other easement by a tenant is in law the enjoyment
of
the landlords (Gayford –
v
- Moffatt [1868] 4 Ch. App 133 at 135). Further the enjoyment
of
the right by succession
of
tenants is sufficient; see Pugh –
v
- Savage [1970] 2 QB 373 at 380 G-H. This is also the case where a tenant's interest is assigned from time to time and even where it is surrendered and a new lease is granted:- Fear –
v
- Morgan [1906] 2 Ch 406 and Morgan –
v
- Fear [1907] AC 415 at 429. All
of
that
of
course ensures that
Midtown
as freeholder takes the benefit
of
the restrictive rights being acquired by the tenant interests derived from the freehold estate from time to time. It does not address Mr Morgan QC's point that Kendall Freeman need to establish how they acquired the interest. They cannot rely on the 1978 lease, because it has expired and at the time
of
the 1993 lease the freeholders were not in a position to grant any rights, because the rights on the evidence had not by then accrued. Whilst it is true that the benefit
of
the tenants actions accrue for the benefit
of
the landlord, the converse does not necessarily appear to me to be the same. It is slightly artificial, but nevertheless, for the tenant to establish the right it must establish either prescription in its own right by its user for the requisite period or alternatively, acquisition
of
rights by prescription acquired by the landlord and by virtue
of
some grant by the landlord, unless rights in the process
of
being acquired can be passed under section 62 LPA 1925 (see below).
- Mr McGhee QC therefore submitted that rights that were in the course
of
being acquired under the Prescription Act 1832 were quite capable
of
passing under section 62 and that thus any rights that were in the process
of
being acquired by the freeholders passed by implication under section 62 on the occasion
of
the 1993 lease. He pointed to the ease with which rights to light are now capable
of
being acquired under section 3
of
the Prescription Act 1832 after twenty years user unless consent in writing is obtained. He referred me to an extract from Megarry and Wade paragraph 18-165 and part
of
the decision
of
the House
of
Lords in Colls –
v
- Home and Colonial Stores
Ltd
. [1904] AC 179 at page 205 and further a decision
of
Tapling –
v
- Jones [1865] 11 HLC 290, which shows that in a case
of
easements
of
land there is no presumption as to a grant. None
of
these authorities, with respect to Mr McGhee QC, seem to me to address the point
of
section 62. They merely show that after the requisite user (i.e.
of
twenty years) the right to light, however precarious its existence beforehand becomes absolute and indefeasible unless enjoyed by written consent or agreement. The authorities say nothing about the feature
of
any right in the process
of
being acquired.
- Faced with this potentially fatal flaw to Kendall Freeman's claim, Mr McGhee QC and his instructing solicitors obtained further documents
of
title from the Land Registry. That showed that the
Midtown
title (410132) was from 13th November 1991 registered in Robert Maxwell Estates
Ltd
. The Charges Register (entry 6) showed the lease to Navcot Shipping dated 13th August 1974. A copy
of
that lease was also obtained from the Land Registry and had handwritten in it a lessee's title number
of
NGL248265. Notwithstanding that and a similar noting that a copy
of
the lease to Navcot Shipping was thus registered that title was never actually registered. This much appears from the extract to
Midtown
's title with edition date 3rd February 1993. By the edition date
of
the title dated 16th April 1993
of Midtown
's title, the 1978 lease to Lummus is noted and shown as having the correctly registered title
of
NGL320354, which title ultimately has vested in Kendall Freeman. Nevertheless, it is quite clear that by the time
of
the 1993 lease, lessor Except Break
Ltd
. was registered with the freehold
of Midtown
's title 410132 as edition date 16th April 1993 shows. There was therefore produced during the trial, a continuity
of
the chain
of
the freehold titles and the leasehold titles as between the freeholders and the leaseholders
of
the Claimants' properties.
- Thus Mr McGhee QC was able to submit (if this was the case) that section 62 would be effectual to pass on the rights being acquired from 1982.
- The Claimants further fortified Kendall Freeman's position. On 19th December 2004 (day two
of
the trial)
Midtown
and Kendall Freeman entered into an agreement whereby
Midtown
agreed to grant Kendall Freeman as assignees a right to light appertaining to the
Property
.
- Mr Morgan QC conceded in his closing speech that there was no doubt that
Midtown
had acquired a right to light in respect
of
the freehold
of
the
Property
by twenty years user next before the commencement
of
its action. It was therefore in a position to grant such right to Kendall Freeman and did so by the deed.
- In the light
of
those documents Mr McGhee QC applied to amend the Kendall Freeman action to claim in the alternative a right to light based on this deed. That would be retrospective if granted to the date
of
the commencement
of
the action. At the date
of
the commencement
of
the action
of
course Kendall Freeman would have no such right by the deed as it did not then exist. Notwithstanding that Mr McGhee QC cited a number
of
authorities (summarised in the Supreme Court Practice at paragraph 17.3.5), which showed that under the Civil Procedure Rules the Courts have allowed an amendment to introduce a cause
of
action arising out
of
facts occurring subsequent to the commencement
of
the proceedings. In Maridive & Oil Service (SAE) –
v
- CNA Insurance Co.
Ltd
. [2002] EWCA Civ 369 the Court
of
Appeal allowed such an amendment. In so doing they followed an earlier Court
of
Appeal decision Hendry –
v
- Chartsearch [1998] CLC 1, 382 where Evans LJ had said, that the modern practice was that the court had a general discretion and should not be restricted by hard and fast rules
of
practice or
of
law. In the same case, Chadwick LJ (paragraph 54) said:-
"There is no absolute rule
of
law or practice which precludes an amendment to rely on a cause
of
action which has arisen after the commencement
of
the proceedings in circumstances where (but for the amendment) the claim would fail. The court has a discretion whether or not to allow the amendment in such a case; a discretion which is to be exercised as justice requires. …"
- Faced with those observations Mr Morgan QC did not feel able to oppose the amendment, not submitting that there was any prejudice nor any other disadvantage, which could not be dealt with in respect
of
these amendments. This was a realistic stance given the fact that the Claimants could have issued fresh proceedings based on the grant and then would be in an incontestable position
of
showing that they had established a right to light. I allowed the amendment given Mr Morgan QC's acceptance
of
these authorities, which are binding on me, although I have some difficulty in dealing with the cases in the light
of
the retrospective effect
of
the amendment. This was a point which Goulding J proceeded on in the case
of
Halliard
Property
Co.
Ltd
. –
v
- Jack Segal
Ltd
. [1978] 1 All ER 1219 where he declined an application to amend to rely upon a fresh ground
of
forfeiture (namely bankruptcy) when no notice under section 146 Law
of Property
Act 1925 had been served before the commencement
of
the proceedings. It is fair to say that the arguments proceeded on an assumption that the amendment would not be granted if such a notice was required, because
of
the retrospective effect
of
the amendment. This authority used to be in the White Book under the Rules
of
the Supreme Court, but has since disappeared following the CPR. It was not cited in the case to which I have made reference, but nevertheless it does seem to me that the modern procedure should not allow a technical objection to deprive the court and one
of
the parties
of
an opportunity to have a merits based decision on an issue. The objection to the amendment could only have been technicalities and would not have prevented, as I have said the Claimant bringing a fresh action based on the deed. It would be a waste
of
the parties' time and the court's time to require that procedural technicality to be gone through when the court is already seized
of
the
real
issue between the parties, namely the infringement
of
the claimants' rights.
- Had I not granted permission to amend, I would have in any event come to the conclusion that the wording
of
section 62
of
the Law
of Property
Act 1925 is sufficiently wide to pass on (amongst other things) rights that are in the course
of
being acquired even if those rights are precarious.
- Nevertheless, as a result
of
the amendment, both
Midtown
and Kendall Freeman had established a right to light through the windows as alleged and the question is therefore whether or not the Defendant will infringe that right or have some other justification for the right not being enforceable against it.
THE YELLOW LAND
- The Defendant claims it has a right to erect a building on that part
of
the footprint
of
the Triangle Building which is coloured yellow on the sketch attached to the Amended Defence, even if it would interfere with the Claimants' rights. It claims the right to cause such interference on two alternative basis, namely on the basis
of
a provisions
of
a conveyance dated 29th May 1930 and in reliance upon section 237
of
the Town and Country Planning Act 1990.
- As the master plan showed, these arguments address a small part
of
one office on each
of
the seven floors
of
the
Property
. The consideration
of
those two defences attracted the citation
of
numerous authorities both under the relevant provisions and under the Human Rights Act. Despite that the points have been taken and have to be dealt with.
THE 1930 CONVEYANCE
- The conveyance dated 20th May 1930 is made between (1) the Ecclesiastical Commissioners and (2) The Lanston Monotype Corporation
Ltd
. and provides as follows:-
"AND the Purchaser to the intent that the covenants hereinafter contained shall bind the said hereditaments into whosesoever hands the same may come for the benefit
of
the adjoining and neighbouring lands belonging to the Commissioners hereby covenants with the Commissioners in manner following that is to say:-
(1) That the Commissioners shall have full power at all times without obtaining any consent from or making any compensation to the Purchaser to deal as the Commissioners may think fit with any
of
the hereditaments adjoining opposite or near to the said hereditaments hereby conveyed and to erect or suffer to be erected on such adjoining opposite or neighbouring hereditaments any buildings whatsoever whether such buildings shall or shall not affect or diminish the light or air which may now or at any time hereafter be enjoyed by the Purchaser or other the owners tenants or occupiers
of
the said hereditaments hereby conveyed or any part thereof
(2) That the Purchaser will not do or suffer to be done on the said herditaments hereby conveyed or any part thereof any act matter or thing whatsoever which may be or tend to the annoyance nuisance damage or disturbance
of
the Commissioners or any
of
their lessees or tenants
of
their adjoining or neighbouring
property
".
- I am satisfied that the benefit
of
that agreement extends to the Site with the phrase that is being "adjoining opposite or neighbouring hereditaments" owned by the Ecclesiastical Commissioners. The plan annexed to the 1930 conveyance shows that they owned land directly facing the land conveyed and land to the east. I accept Mr Morgan QC's submissions as summarised in his written submission which shows a deduction
of
title, which can only be sensibly explained on the basis that the Ecclesiastical Commissioners and then the Church Commissioners owned the Site and the benefit
of
the 1930 conveyance provision is now vested in the Defendant as the current owner
of
the Site.
- Although the wording is somewhat unusual in that it is framed as a covenant, it seems to me that I must construe the effects
of
the agreement according to the purpose, for which it appears to be intended. I do not think that it was intended to be a restrictive covenant as such, but was in reality an agreement in writing as between the owners
of
the respective properties which is intended to prevent the operation
of
section 3 Prescription Act 1832. There are many decisions on provisions
of
this kind; see for example Foster –
v
- Lyons [1927] 1 Ch 219 and Willoughby –
v
- Ecksten [1937] 1 Ch 167. It is quite clear that the parties intended the obligations to benefit the adjoining and neighbouring land
of
the Commissioners and similarly to burden the land thereby sold subject to the provisions. The purpose
of
the provisions was to enable the Ecclesiastical Commissioners and their successors to redevelop the Site, notwithstanding that might interfere with (inter alia) the light then or thereafter enjoyed by the Purchaser or others
of
the owners, tenants or occupiers
of
the site or any part thereof. It is clear, in my view, that the purpose was to allow development, even if it might infringe light then being enjoyed. That is an agreement between the parties in writing negativing the effect
of
the prescription as set out in section 3
of
the Prescription Act 1832. It shows that the Yellow Land was granted rights to light over the retained land on the basis that at any time the owners
of
the retained land could interfere with them. That makes the rights permissive and means that the rights cannot ripen into an absolute and indefeasible easement, because they are enjoyed on terms that they can be terminated.
- I reject Mr McGhee QC's submissions that the arrangement is that
of
a restrictive covenant, as I do not believe the true construction
of
the document leads to that conclusion. I agree with the analysis
of
the nature
of
these rights in the decision
of
Lightman J in Marlborough (West End)
Ltd
. –
v
- Wilks Head & Eve 20.12.96 (paragraph 5). It seems to me plain that the rights covered by the 1930 conveyance are in the second category as referred to in that paragraph, namely, a provision designed to authorise the servient owner at a future date to carry out works or build as he pleases unrestricted by an easement
of
light and notwithstanding any resultant injury to the light enjoyed.
- Accordingly, I am
of
the opinion that in respect
of
the Yellow Land the Defendants can rely upon the provisions
of
the 1930 conveyance to override any rights to light enjoyed by the area
of
land affected by that conveyance.
SECTION 237 TOWN AND COUNTRY PLANNING ACT 1990
- That makes it unnecessary for me, technically, to consider the effect
of
the submissions made by the Defendants asserting a right to override any easement
of
light affecting the Yellow Land by virtue
of
the provisions
of
this section. Nevertheless, as the point involves a consideration
of
an important matter
of
principle, as to the impact
of
an appropriation or acquisition under that section, I will deal with that in this judgment.
THE SECTION
- Section 237 provides as follows:-
"237 Power to override easements and other rights
(1) Subject to subsection (3), the erection, construction or carrying out or maintenance
of
any building or work on land which has been acquired or appropriated by a local authority for planning purposes (whether done by the local authority or by a person deriving title under them) is authorised by virtue
of
this section if it is done in accordance with planning permission, notwithstanding that it involves—
(a) interference with an interest or right to which this section applies, or
(b) a breach
of
a restriction as to the user
of
land arising by virtue
of
a contract.
(2) Subject to subsection (3), the interests and rights to which this section applies are any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support.
(3) Nothing in this section shall authorise interference with any right
of
way or right
of
laying down, erecting, continuing or maintaining apparatus on, under or over land which is—
(a) a right vested in or belonging to statutory undertakers for the purpose
of
the carrying on
of
their undertaking, or
(b) a right conferred by or in accordance with the telecommunications code on the operator
of
a telecommunications code system.
(4) In respect
of
any interference or breach in pursuance
of
subsection (1), compensation—
(a) shall be payable under section 63 or 68
of
the Lands Clauses Consolidation Act 1845 or under section 7 or 10
of
the Compulsory Purchase Act 1965, and
(b) shall be assessed in the same manner and subject to the same rules as in the case
of
other compensation under those sections in respect
of
injurious affection where—
(i) the compensation is to be estimated in connection with a purchase under those Acts, or
(ii) the injury arises from the execution
of
works on land acquired under those Acts.
(5) Where a person deriving title under the local authority by whom the land in question was acquired or appropriated—
(a) is liable to pay compensation by virtue
of
subsection (4), and
(b) fails to discharge that liability,
the liability shall be enforceable against the local authority.
(6) Nothing in subsection (5) shall be construed as affecting any agreement between the local authority and any other person for indemnifying the local authority against any liability under that subsection.
(7) Nothing in this section shall be construed as authorising any act or omission on the part
of
any person which is actionable at the suit
of
any person on any grounds other than such an interference or breach as is mentioned in subsection (1)".
- The purpose
of
the section is to facilitate the proper development
of
land by providing that easements and any other rights, which might prevent such development, are overridden and extinguished subject to a right
of
compensation. Under section 237(4) the compensation is assessed as if the rights were compulsorily acquired. Thus, the measure
of
compensation payable is the diminution in value
of
the interest affected and not (for example) by reference to a reasonable price that could be extracted for the giving up
of
the right; see Stockport MBC –
v
- Alwiyah Developments [1983] 52 P&CR 278 C.A. and Wrotham Park Settled Estates –
v
- Hertsmere BC [1991] 62 P&CR 652 C.A.
- It would seem that the words
of
subsection (1) enable a successor in title to claim the benefit
of
the section and not merely the Local Authority. The developer is liable primarily to pay compensation, but there is an overriding obligation on the part
of
the Local Authority under subsection (5), making the Local Authority liable in default.
- The Yellow Land was acquired by the
City of London
by a conveyance dated 4th April 1956. It was and is a Local Authority. The land was acquired for planning purposes, namely the planning purposes shown in relation to the redevelopment unit number 18, established by the
City of London
on 15th December 1955, in accordance with report
of
the Improvements and Town Planning Committee dated 22nd November 1955. It was part
of
the regeneration
of
this part
of London
following war damage. The area
of
land acquired by the
City of London
was extensive.
- The Defendants contend that it is entitled to carry out development under the aegis
of
that acquisition as a successor in title. The appropriation initially took place under the Town and Country Planning Act 1944 (section 22 as amended by Town and County Planning Act 1947 section 44). That section in turn became section 181
of
the Town and Country Planning Act 1962 and section 127
of
the Town and Country Planning Act 1971. Nothing turns on this statutory chain
of
the requisite powers.
- Section 246(1) Town and County Planning Act 1990 provides that:-
"(b) Any reference to the appropriation
of
the land for planning purposes is a reference to the appropriation
of
it for purposes which land can be (or as the case may be could have been) acquired under [sections 226 or 227]".
- Those provisions deal with the power
of
the Local Authority to acquire land compulsorily (section 226) or voluntarily (section 227).
- Under section 232 provision is made for land acquired or appropriated for planning purposes to appropriate it for any other purpose subject to compliance with a procedure set out in that section.
- The acquisition
of
the planning purpose occurred with the acquisition in this case by the 1956 conveyance. As the Claimants have shown, the Yellow Land was appropriated in accordance with paragraph 68
of
the area number 1
City of London
statement and as I have said, the purpose (as set out in paragraph 69) was to redevelop to deal satisfactorily with extensive war damage, secure improvements in the road pattern and to provide additional public open space and allow for the extension
of
the Guildhall.
- A first review took place in 1960. It is clear by that that review the redevelopment was virtually completed; see paragraph 19. There is no connection between the Defendants's proposed development and the original acquisition purpose, which has plainly been fulfilled many years ago and the proposed redevelopment. The Yellow Land is merely being redeveloped in an area, which was previously acquired and redeveloped in accordance with that original acquisition. At first blush there appears to be no justification to allow the Defendant to rely upon an historical acquisition by the Local Authority many years before its acquisition and development proposals. It should also be appreciated that the Claimants' rights are established from 1982, i.e. nearly thirty years after the appropriation took place. The right did not exist at the time
of
the acquisition.
- The Defendant relies upon the decision in R –
v
-
City of London
Council & another Ex-parte Master Governors and Commonality
of
the Mystery
of
the Barbers
of London
[1996] 2 EGLR 128. In that case the relevant authority acquired land piecemeal between 1954 and 1959. Some was acquired compulsorily, the other parts pursuant to purchase notice. Thereafter, the Council granted the second respondent a building lease and they constructed a building on the Site. In 1969 the Council granted the applicants an area
of
adjoining land and by the transfer covenanted not to interfere with light or air passing through any windows
of
the Hall thereon built. Subsequently, the building leased to the Second Respondents was demolished and planning permission was granted for a redevelopment
of
the site. The Council contended that interference with the rights
of
light and air granted to the Hall by the transfer in 1969 were overridden by section 237 by virtue
of
the acquisition
of
the land between 1954 and 1959, despite the lack
of
apparent connection between the original acquisition and the proposed redevelopment. Dyson J (as he then was) held that the Council's contention was correct. In so doing Dyson J concluded that the words "for planning purposes" should not require the redevelopment to be linked to the initial purpose
of
the acquisition or appropriation. He determined that the words were quite general and were used to distinguish the case from one where an acquisition was made for other purposes. He concluded that the concept
of
initial development followed by a cyclical redevelopment
of
the site was hardly esoteric and that if Parliament had intended to apply a restriction to section 237 to the first development, then very different language would have been required. He found support for that. He drew attention to the fact that development and erection by statute were extended to redevelopment and re-erection and concluded that it must have been intended that a Local Authority should be able to develop a site which it had acquired for planning purposes from time to time whenever an occasion for redevelopment arose. He could see no rational basis for restricting the operation to the first development after acquisition or appropriation, as buildings become obsolete and have to be redeveloped from time to time, thus requiring the Local Authority to retain a power to override third party rights from time to time. He therefore concluded that the Local Authority could rely on section 237 to override rights which had arisen after the first redevelopment and which were not connected to it.
- It is to be noted that there are two very important factual differences between the present cases. First, the Local Authority claimed a continuing right to control the development
of
its own land under the aegis for the purposes for which it was acquired. Second, the Local Authority was intending to invoke the appropriation and still own the land in question. The facts therefore bear little relation to the present one, where it is not suggested that the Local Authority considered this proposed redevelopment on the site as operating under the aegis
of
its initial acquisition. The evidence (such as there is) is that the Local Authority simply granted planning permission for redevelopment in accordance with its existing planning policy. There is no evidence to show it invoked the basis for the acquisition
of
the Yellow Land after the Second World War. Third, the development is completely unconnected with that original purpose for acquisition. It is clear (see the evidence summarised above) that the original purpose for which the land was acquired was satisfied by 1960. Fourth, the Defendant did not acquire the Yellow Land from the Local Authority for the purpose
of
redevelopment in accordance with the historic appropriation. It acquired it from a different person for the purpose
of
its own redevelopment proposals for which it sought and obtained planning permission in 2004.
- There is an important part
of
Dyson J's judgment dealing with the factual scenario (which in his case was hypothetical), but which is applicable to the facts before me. I refer to page 130
of
the judgment:-
"Mr Howell also submits that the wider construction
of
section 237(1) leads to unreasonable results, which cannot have been intended by parliament. He points out that the section applies whether work is done by the local authority or by a person deriving title under a local authority. He postulates a case where: (a) a local authority acquires land for a planning purpose, say, building a shopping centre, and builds the centre; (b) the local authority disposes
of
the centre to an owner in the private sector; (c) the new owner grants rights to various shopkeepers within the centre; (d) the new owner obtains planning permission for a development which will interfere with the rights which the new owner has granted. If the new owner can override the rights that he has granted to the shopkeepers in such circumstances, says Mr Howell, that is a result which is so unreasonable that it could not have been intended by parliament.
This example also raises the second issue that arises in the present case, and to which I shall come shortly. But, leaving that aside, there are a number
of
comments to be made. As Mr Sullivan points out, first, the fact that an improbable factual example can be devised which would lead to an unexpected result is no reason to depart from the clear wording
of
an enactment. Second, having acquired the land for a planning purpose, and built the shopping centre, it is unrealistic to assume that the local authority in question would not have retained any control over the rebuilding
of
the centre, not least because they would remain potentially liable to compensation claims under section 237(5). Third, if in the circumstances
of
the example, the local authority considered it desirable that the shopping centre should be redeveloped and granted planning permission for it, in order to bring the centre up to date and preserve its vitality, then this would be entirely in accordance with section 237.
In my view, there is force in these points. I am not persuaded by examples
of
the kind given by Mr Howell that the wider interpretation may lead to results which are so unreasonable that they could not have been intended by parliament. Mr Howell placed great emphasis on the fact that successors in title to the local authority can enjoy the fruits
of
section 237(1). I do not have to consider in the case whether, as a matter
of
construction, there are any, and if so what, limits to the application
of
section 237(1) to those who derive title under the acquiring or appropriating local authority. My provisional view is that, in order to attract the immunity conferred by the subsection, the work done (whether by the local authority or the person deriving title under them) must be related in some way to the planning purposes for which the land was acquired. That would explain why, even in cases where the work is done by a person deriving title under a local authority, parliament has decided that the local authority should have a contingent liability to pay compensation.
This brings me to the final argument advanced by Mr Howell, which is based on the facts
of
the case. He submits that, since the land was acquired as begin "immediately necessary in the interests
of
the proper planning
of
the area", the planning purpose for which the site was acquired was the development that was recognised as being immediately necessary, ie the first development, and not any subsequent redevelopment. He relies on the resolution by the first respondents made on March 25 1954 to which I have already referred, and which spoke
of
the acquisition
of
the land as "immediately necessary in the interests
of
the proper planning
of
the area". These words echo the language
of
section 38(2)(a)
of
the 1947 Act. The compulsory purchase order, however, makes no reference to the acquisition being immediately necessary in the interests
of
the proper planning
of
the area. It speaks simply
of
a purchase "for the purpose
of
securing the development, or redevelopment
of
the area". This reflects the language
of
section 38(1)(a)
of
the 1947 Act. It may be that between the date
of
the resolution and the date
of
the compulsory purchase order, a development plan had become operative. At all events, it seems to me that I should look to the terms
of
the compulsory purchase order itself, rather than to the resolution that preceded it, to determine the purpose for which the land was acquired. There is nothing in the language
of
the compulsory purchase order that supports Mr Howell's submission.
Even if I am wrong about that, and the purpose for which the land was acquired was a purpose which was immediately necessary in the interests
of
the proper planning
of
the area, I would not feel able to accept Mr Howell's argument. On this hypothesis, no doubt it would be right to say that some form
of
immediate development was necessary, and it was for the purpose
of
that immediate development that the land was acquired by the first respondents. There is, however, no reason to infer that the first respondents acquired the land only for the purpose
of
carrying out that immediate development, and not for the purpose, if necessary,
of
later carrying out redevelopment. In the absence
of
words making it clear that the first respondents acquired the site only for the purpose
of
carrying out the development that was immediately necessary at the date
of
acquisition, and no subsequent redevelopment, I would hold that the purposes for which the site was acquired are not to be construed in this restricted manner".
- Mr Howell (who is in the position
of
the Claimants in the present case) raises the same points raised by Mr McGhee QC in his submissions. It is to be noted that at paragraph J, Dyson J expressed a provisional view that in order to attract immunity the work done must be related in some way to the planning purposes for which the land was acquired. That explains he observes, why even in the cases were work is done by persons deriving title under a Local Authority, Parliament has decided that the Local Authority should have a contingent liability to pay compensation.
- In my view, if a Local Authority or a successor
of
a Local Authority wishes to rely upon the power to override under section 237, where the land has been appropriated for a planning purpose, the proposed development, which it seeks to impose on adjoining owners must be related to the planning purposes for which the land was acquired or appropriated. In other words, I agree with Dyson J's provisional view. That would apply to the situation whether or not the Local Authority was the owner at the time, or whether a successor was the owner. I accept
of
course that in the case
of
a Local Authority it would be able under the statutory provisions set out above to re-appropriate the land for an appropriate purpose to facilitate the development (subject to complying with the statutory requirements) and
of
course paying the compensation. Whilst I accept Dyson J's analysis that the breadth
of
the section clearly intended a Local Authority (and its successor) to be able to redevelop or continue to redevelop a site appropriated for planning purposes from time to time, I cannot believe (or accept) that that width extends to a development taking place unconnected with the original appropriation purposes by a developer who is merely a successor in title to the original Local Authority. For that submission to be correct, for example, it would mean many hundreds
of
years in the future a developer could override rights which came into existence long after the original appropriation and long after the purpose
of
the original appropriation had been disposed
of
. I do not see that the appropriation can in effect lie in the ground to be available to spring forth fully armed to enable a future developer to pick it up when its development has no causal connection or relevance to the appropriation.
- Accordingly, in my opinion, on the facts
of
the present case as summarised above, I do not accept that the Defendant can rely upon section 237
of
the Town and Country Planning Act 1990, to redevelop the Site and override the easements
of
light in respect
of
the Yellow Land.
HUMAN RIGHTS
- My findings under the 1930 conveyance and section 237
of
the Town and Country Planning Act 1990 mean any determination under the Human Rights Act is irrelevant. I do not propose to add to the length
of
this judgment by deciding the matter on Human Rights issues, bearing in mind the vast welter
of
authorities that were cited, the academic purpose
of
such an analysis in the context
of
my decision and the modest area
of
land affected thereby. I mean no discourtesy to Counsel who submitted lengthy and detailed arguments on this, but I see no advantage gained in expressing what will be an obiter view on a fact based Human Rights issue.
- I therefore determine that save in respect
of
the Yellow Land, the Claimants have established rights
of
light and that the Defendant's development
of
the Site will affect those rights. I go on now to consider the extent
of
the infringement and what remedies, if any, ought to be awarded to the Claimants for the infringement
of
such rights.
AMOUNT
OF
INFRINGEMENT
- The Claimants both retained Ian Absolon BSC MRICS
of
Schatunowski Brooks to act for them and the Defendant retained Delva Patman FRICS, ACIARB
of
Delva Patman Associates. Both are experienced light experts. Both assessed each room on the
Property
by computer calculation to calculate the amount
of
each room, which received a light level
of
1 lumen per square foot at a set working plain
of
2 feet 9 inches (830 millimetres) taken at desk top height. 1 lumen per foot is the amount
of
light that is required for someone to be able to read without artificial light on an ordinary overcast day. The whole dome
of
the sky produces 500 lumens, so that 1 lumen may also be described as point 0.2%
of
the available sky. The combination
of
these points about a room is described as the 0.2% sky factor contour line.
- The experts agreed the 0.2% contour for each room, which described the line in a room where an individual, when seated would pass from being able to discern print by natural light to a position where artificial lighting would be required at a level
of
2 feet 9 inches above the floor level. They agreed the plans and on the plans the area shown by the red contour is the existing 0.2% line and the area shown by the green, the proposed 0.2% line and the position blue (which for the reasons I have set out above is not relevant) generated by the proposed development on the Yellow Land as a separate indication. Agreed appendix B has a table showing the existing percentage
of
the room which has the minimum level
of
light requirement and the corresponding percentage in the event that the development at the Site takes place. The reductions as regards available light are very large. Generally, all
of
the reductions reduce the percentage
of
the room to single figure percentages from percentages in excess on average
of
50% plus. One further factor is that one room on each floor has the benefit
of
double window light. In Sheffield Masonic Hall Co.
Ltd
. –
v
- Sheffield Corporation [1932] 2 Ch 17 Maugham J determined that where a room had light from another source, which also could be potentially interfered with (but not by the Defendant) the amount and interference permitted by the Defendant is only that available after an assumption that the light passing into the other window has similarly been interfered with. Mr Morgan QC accepts that authority as being one that I should follow, but reserves the right to challenge its correctness in the event that his client chooses to appeal my decision.
- One test applied regularly as to whether or not a room is adequately lit is the so-called 50/50 rule. A room is considered adequately lit where 50%
of
the room is adequately lit for the purpose as set out above. The majority
of
the rooms presently pass this 50/50 test, but if the development proceeds, only one room
of
the ground to sixth floor will still satisfy that test. These rooms however, only have that light level by reason
of
the non-application
of
the Sheffield Masonic test. Thus, all rooms, if the development proceeds as contemplated in respect
of
the Triangle Building will be inadequately lit on the 50/50 test.
- The Defendant accepts that the construction
of
building A on the Triangle will result in a diminution in the light to the windows
of
the
Property
. The Triangle as I have said, is only part
of
the Defendants proposed development.
INFRINGEMENT A NUISANCE?
- It is well established that the fact that light enjoyment by the relevant windows is diminished as a result
of
the proposed development, does not itself show the development constitutes a nuisance. The question to be posed is not what light is taken away, but what light is left, and whether the light is sufficient for normal purposes according to the ordinary notions
of
mankind having regard to the purposes for which the building was designed and the nature
of
that design: see Colls –
v
- Home and Colonial Stores
Ltd
. [1904] AC 179.
- Despite the apparently depressing effect
of
the agreed statement, which shows a substantial diminution
of
the minimum amount
of
natural light to all
of
the offices on the
Property
, Mr Morgan QC, with characteristic boldness submits that given the locale, one should not address this impact solely by reference to natural light.
- His argument is as follows. All
of
the rooms on the
Property
are habitually lit by artificial light whenever they are used. That has been the case as long as the present buildings have been in place and according to the evidence
of
Kendall Freeman, would be the position in the future if any refurbishment took place. This is reinforced, Mr Morgan QC submits, by the fact that the internal rooms, which receive no natural light whatsoever, are illuminated constantly by artificial light. This is despite the fact that those rooms are used by typing and ancillary staff, who would be working in circumstances where it is probably more important for them on a traditional analysis to have as much natural light as possible. Not unsurprisingly, the higher one's status is within the firm, the bigger a window that person receives. None
of
Kendall Freeman's witnesses showed that they needed natural light for the purposes
of
using the rooms. Further, none
of
them showed that in any realignment or redevelopment, that they would depart from that practice. Mr Morgan QC submits that this is in line with modern office practice where it is preferable to provide a constant level
of
light which is unchanging and this can only be achieved by permanent artificial light. That he submits, is why Kendall Freeman never use the offices with the lights off.
- Mr Morgan QC produced a guide issued by the Chartered Institute
of
Building Service Engineers, "Lighting for Offices". He submits, that in accordance with that guide, these rooms in modern practice will always require artificial light, and that is demonstrated, by the present and prospective user. Given that reduction
of
natural light is irrelevant if the lighting is really provided by the artificial light. He pointed out that this is the practice in modern offices and he was reinforced in this submission, he contended; by the fact that there had never been any light dispute in the
City
(where an injunction has been sought), because everybody knew this was the practice.
- He also submitted that the time had come to recognise this "
real
" situation and dispense with riged and unhelpful rules that had been devised in the past, such as the 50/50 rule.
- He also submitted that one should not confuse the amount
of
light required for a task with the visual purposes
of
providing a view and increasing the general brightness
of
a room. Windows serve those purposes, but the only relevant purpose
of
the window is the third possible purpose (identified in the report, paragraph 3.1.2) namely, task illumination.
- There are a number
of
potential difficulties about this submission. First, it would mean that there would never be a successful challenge to an infringement
of
light, because it could always be said, no matter how much actual light is taken away, it is always possible to fill the gap with artificial light. It is well demonstrated by the fact that the rooms in the
Property
, which have no natural light, are illuminated to the same standard by the constant electrical lighting as those, which have a natural light. No such argument so far as I am aware, has ever been put successfully or otherwise in any light case. Second, it undermines, in my view, the potential advantages that might appertain on a particular case, for natural light, which varies and might be better for specified tasks. The report itself (paragraph 3.1.2) identifies that the natural variation
of
daylight was valuable.
- I was troubled about this submission because it was not supported by any kind
of
expert evidence. Further, it does not take into account potentially varied uses. If the
Property
has a right to light (as is the case), any other reasonable use to which it would be put, which might be diminished, should also be taken into account. In the instant case, in practical terms, no use is made
of
the natural light. It is not impossible however, for the Site to be redeveloped in a way, which incorporates more use
of
the natural light. If that takes place, that would have an impact on
Midtown
's use
of
, and enjoyment
of
its freehold title. Third, the lack
of
challenge in the
City
, might simply be, that most people adopt a pragmatic view, whereas the Claimants in this case are not willing to bargain away their rights, but wish to insist on them being enforced. It would not be appropriate to require their rights to be bargained away if they did not wish to do so. One always has to be alert to ensure that developments do not override rights simply by expropriation.
- I have sympathy with the submissions. It may well be that in an appropriate case it is a right basis for challenging assumptions that have taken place as regards the preference
of
natural light to artificial light. However, on the evidence before me, I am not convinced that such a submission can be made out to challenge the case on the basis
of
no infringement. It does not follow however, that the submissions cannot be used for arguments based on remedy, i.e. refusing an injunction. I can see considerable force in that regard and I will revert to that further in this judgment.
- Given the agreed statement and the rejection
of
Mr Morgan QC's submission, I conclude that there will be a nuisance as in respect
of
the Claimants rights to light, if the Triangle is developed by building A (save in respect
of
those parts covered by the 1930 conveyance).
REMEDIES
- It is necessary to consider each Claimant separately in my opinion. Both seek as a primary remedy an injunction with damages in lieu
of
an injunction if an injunction is refused.
MIDTOWN![](/images/contextdown.png)
Midtown
called one witness, Mr Lamont, a director. He provided three witness statements. From that evidence and the cross examination I determine that the
Property
was purchased by the Claimant as a speculative investment.
Midtown
certainly, on his evidence, appears to have taken no serious professional advice as to its value or its developability.
Midtown Ltd
holds the
property
for the benefit
of
various (unidentified) individual shareholders scattered around the globe with some in Northern Ireland. As Mr Lamont said, its purpose was to enable people with high net worth to invest to create wealth. Its only asset appears to be the
Property
.
- It is difficult to see how
Midtown
had any interest in the
Property
other than purely financial. It plainly harbours plans to redevelop. These plans received an apparent rebuff from the council, although it is equally clear that
Midtown
received advice
of
some sort, paradoxically, to the effect that the Defendant's proposal at the Site would enhance redevelopment prospects
of
the
Property
. Mr Morgan QC was concerned to establish that in reality,
Midtown
had put any redevelopment proposals on hold with a view to extracting money from the Defendant against a supposed infringement
of
easements
of
light and would then subsequently seek to redevelop the
Property
entirely anyway. This was denied by Mr Lamont, but I found the answers he gave to Mr Morgan QC's questioning about their redevelopment proposals unconvincing. One
of
the examples
of
this was his inability to expand on the letter dated 30th June 2004 sent by planning experts, in effect on behalf
of Midtown
to the planning department, about proposed developments
of
the
Property
. It sought to pray in aid for example, the Defendant's proposed development
of
the Site. This reflected advice given by letter dated 18th June 2004, from Blue Planning Hughes McMichael, which (on a desk top analysis) apparently expressed the view that there would only be a less than 50% prospect
of
successfully achieving planning permission for the scheme. No further exploration has apparently taken place, which Mr Morgan QC was rightly sceptical about. It seems to me (and I so find) that in reality,
Midtown
do have redevelopment proposals and they have merely put them on hold for the duration
of
this litigation.
Of
course, any redevelopment proposals might involve the retention
of
the existing building, but this is extremely unlikely if the building can be demolished. The building is now old fashioned by modern office standards. In my view refurbishment
of
the offices is a last resort only.
- If an injunction were granted it would be unfortunate if the
Property
was subsequently redeveloped and the windows and the right enjoyed by those windows were no longer used. An injunction would put
Midtown
in a very strong bargaining position vis-à-vis the Defendant. Faced with that Mr McGhee QC submitted that the Defendant would be in a position to apply to the court for a discharge
of
any such perpetual injunction. I pointed out to Mr McGhee QC that Lord Hoffman in Co-operative Insurance –
v
- Argyle Stores [1998] AC 1 at page 18 had said as follows:-
"Mr Smith who appeared for CIS said that if the order became oppressive (for example because Argyle were being driven into bankruptcy) or difficult to enforce they could apply for it to be varied or discharged. But the order would be a final order and there is no case in this jurisdiction in which such an order has been varied or discharged except when the injuncted activity has been legalised by statute".
- Whilst that observation is obiter (and may even be per incuriam); see page 7
of
the arguments and the case
of
Jordan –
v
- Norfolk County Council [1994] 1 WLR 1353, it shows the difficulties
of
granting a perpetual injunction in this case. Mr McGhee QC in final repost, submitted that it could be dealt with by an undertaking on the part
of
the Claimants to agree to have any perpetual injunction discharged in the event that they no longer wished to use the easements
of
light protected by such an injunction. That too is fraught with difficulties to my mind.
- Mr McGhee QC submitted that where a
property
right is infringed, the victim is entitled to an injunction virtually as
of
right. I agree that that is one factor that is to be borne in mind, namely that a person's rights if they genuinely need to be protected by way
of
injunction ought to be given that protection. It is not absolute however; see the overriding
of
contractual rights in CIS –
v
- Argyle above. Also an injunction has been refused, despite protests, when other rights have been infringed; see for example Bracewell –
v
- Appleby [1975] Ch 405. Equally, injunctions have been refused where it was established that the person was plainly "only wanting money"; see Fishenden –
v
- Higgs [1935] 153 LT 128 and Gafford –
v
- Graham [1993] 3 EGLR 75. A case at the opposite end
of
this spectrum is the well known case
of
Pugh –
v
-Howells [1984] 48 P&CR 298 C.A., where the court ordered a building to be demolished were the development was speeded up to present the person with a fait-accompli. Equally in some cases the failure to apply for interim relief can be a factor (although Mr Morgan QC did not argue that against the Claimants here).
- Interestingly, in the Colls case, Lord MacNaghten (at page 193) said this:-
"But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the Court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his
property
against his will, or to have the value
of
his
property
diminished, without an Act
of
Parliament. On the other hand, the Court ought to be very careful not to allow an action for the protection
of
ancient lights to be used as a means
of
extorting money. Often a person who is engaged in a large building scheme has to pay money right and left in order to avoid litigation, which will put him to even greater expense by delaying his proceedings. As far as my own experience goes, there is quite as much oppression on the part
of
those who invoke the assistance
of
the Court to protect some ancient lights, which they have never before considered
of
any great value, as there is on the part
of
those who are improving the neighbourhood by the erection
of
buildings that must necessarily to some extent interfere with the light
of
adjoining premises".
- This was followed in Fishenden at page 139, where the court declined an injunction in respect
of
an infringement
of
easement
of
light and awarded damages in lieu, even though the damages would be substantial. In Kennaway –
v
- Thompson [1981] QB 88 the Court
of
Appeal applied the principals
of
Shelfer –
v
-
City of London
Electric Lighting Co. [1895] 1 Ch 287 as to when a court would not grant an injunction for an infringement
of
light. Although Snell (paragraph 45-28) suggests that this is a reaffirmation
of
a rule where there is a continuing nuisance, I do not with respect see how it can override the observations, in particular in the House
of
Lords in Colls as applied in Fishenden (which authorities were also referred to in that relevant paragraph) when applied to easements
of
light.
- The last word on the question
of
discretion to grant an injunction is Jaggard –
v
- Sawyer [1995] 1 WLR 269. In my view the judgments establish a willingness on the part
of
the courts to depart from the strict requirements
of
the four requirements set out in Shelfer in an appropriate case. That appears (for example) from the judgment
of
Millett LJ at page 287, as follows:-
"It has always been recognised that the practical consequence
of
withholding injunctive relief is to authorise the continuance
of
an unlawful state
of
affairs. If, for example, the defendant threatens to build in such a way that the plaintiff's light will be obstructed and he is not restrained, then the plaintiff will inevitably be deprived
of
his legal right. This was the very basis upon which before 1858 the Court
of
Chancery had made the remedy
of
injunction available in such cases. After the passing
of
Lord Cairns's Act many
of
the judges warned that the jurisdiction to award damages instead
of
an injunction should not be exercised as a matter
of
course so as to legalise the commission
of
a tort by any defendant who was willing and able to pay compensation. In Shelfer
v
.
City of London
Electric Lighting Co. [1895] 1 Ch 287, 315-316 Lindley L.J. said:
"But in exercising the jurisdiction thus given attention ought to be paid to well settled principles; and ever since Lord Cairns's Act was passed the Court
of
Chancery has repudiated the notion that the legislature intended to turn that court into a tribunal for legalizing wrongful acts; or in other words, the court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict."
And Buckley J. said in Cowper
v
. Laidler [1903] 2 Ch 337, 341:
"The court has affirmed over and over again that the jurisdiction to give damages where it exists is not so to be used as in fact to enable the defendant to purchase from the plaintiff against his will his legal right to the easement."
The plaintiff is, therefore, in good company when she says in her skeleton argument (prepared when she was acting in person):
"What Judge Jack has in effect done in his judgment is to grant Mr. and Mrs. Sawyer a right
of
way in perpetuity over my land for a once and for all payment. I do not understand how the court can have power to produce such a result as it effectively expropriates my
property
. . . Ashleigh Avenue is a private roadway and Judge Jack has turned it into a public highway. Surely he does not have the jurisdiction to do this?"
It will be
of
small comfort to her to be told that the jurisdiction is undoubted, though it is to be exercised with caution. What does need to be stressed, however, is that the consequences to which the plaintiff refers do not result from the judge's exercise
of
the statutory jurisdiction to award damages instead
of
an injunction, but from his refusal to grant an injunction. Lord Cairns's Act did not worsen the plaintiff's position but improved it. Thenceforth, if injunctive relief was withheld, the plaintiff was not compelled to wait until further wrongs were committed and then bring successive actions for damages; he could be compensated by a once and for all payment to cover future as well as past wrongs.
Of
course, the ability to do "complete justice" in this way made it easier for the courts to withhold the remedy
of
an injunction, and it was therefore necessary for the judges to remind themselves from time to time that the discretion to withold it, which had existed as well before 1858 as after it, was to be exercised in accordance with settled principles; that a plaintiff who had established both a legal right and a threat to infringe it was prima facie entitled to an injunction to protect it; and that special circumstances were needed to justify withholding the injunction.
Nevertheless references to the "expropriation"
of
the plaintiff's
property
are somewhat overdone, not because that is not the practical effect
of
withholding an injunction, but because the grant
of
an injunction, like all equitable remedies, is discretionary. Many proprietary rights cannot be protected at all by the common law. The owner must submit to unlawful interference with his rights and be content with damages. If he wants to be protected he must seek equitable relief, and he has no absolute right to that. In many cases, it is true, an injunction will be granted almost as
of
course; but this is not always the case, and it will never be granted if this would cause injustice to the defendant. Citation
of
passages in the cases warning
of
the danger
of
"expropriating" the plaintiff needs to be balanced by reference to statements like that
of
Lord Westbury L.C. in Isenberg
v
. East India House Estate Co.
Ltd
.(1863) 3 De G. J. & S. 263, 273 where he held that it was the duty
of
the court not
"by granting a mandatory injunction, to deliver over the defendants to the plaintiff bound hand and foot, in order to be made subject to any extortionate emand that he may by possibility make, but to substitute for such mandatory injunction an inquiry before itself, in order to ascertain the measure
of
damage that has been actually sustained."".
- Similarly, the judgment
of
Sir Thomas Bingham MR (as he then was) to my mind indicates a willingness to refuse an injunction even though substantial damages are likely to be payable; see his approval
of
Bracewell at page 279 and his analysis
of
the damages at page 283 G. It is clear that he considered the damages small, but nevertheless as a matter
of
principal was plainly
of
the view that in an appropriate case an injunction could be refused when more than nominal damages could be awarded assessed by reference to a reasonable price to be obtained for a relaxation
of
the rights. It is self evident that in some cases like that the compensation is likely to exceed the first requirement
of
the Shelfer case that the damages be small.
- Millett LJ summarised it at page 288, as follows:-
"In considering whether the grant
of
an injunction would be oppressive to the defendant, all the circumstances
of
the case have to be considered. At one extreme, the defendant may have acted openly and in good faith and in ignorance
of
the plaintiff's rights, and thereby inadvertently placed himself in a position where the grant
of
an injunction would either force him to yield to the plaintiff's extortionate demands or expose him to substantial loss. At the other extreme, the defendant may have acted with his eyes open and in full knowledge that he was invading the plaintiff's rights, and hurried on his work in the hope that by presenting the court with a fait accompli he could compel the plaintiff to accept monetary compensation. Most cases, like the present, fall somewhere in between".
- Looking at it from
Midtown
's point
of
view, it seems to me that it is not appropriate for
Midtown
to obtain an injunction. First, it was only interested in the
Property
from a money making point
of
view. If the value
of
the
Property
has been diminished, it can be compensated and is capable
of
calculation. Second, there is probably no present loss, because
of
the existing lease in its favour, which will be unaffected by the infringement
of
the easements
of
light in respect
of
the windows. Third, it seems to me that it has in mind redevelopment proposals
of
its own, which would likely make the injunction academic. Fourth, I am quite satisfied on the correspondence that the Defendants behaved reasonably and openly in flagging up the issue and suggested meetings to discuss matters and were rebuffed unreasonably by both
Midtown
and Kendall Freeman. That appears clearly from the correspondence repeatedly addressed to both
of
them and unanswered. I say nothing about negotiations, because
of
course, I have no evidence before me
of
any such negotiations having taken place. In addition, it would be oppressive to the Defendants to be prevented from pursuing a worthwhile and beneficial development for that area (which might actually benefit
Midtown
). Mr Morgan QC accepts that if the remedy is damages only, part
of
those damages can possibly include a compensatory payment by reference to a reasonable price or possibly (and I say nothing about this for obvious reasons) based on a sharing in the Defendant's profits in accordance with the above cases and AG –
v
- Blake [2001] 1 AC 268. However, I have that for determination on the assessment
of
damages.
- For all
of
those reasons, I reject
Midtown
's claim for an injunction and determine that it is entitled to damages to be assessed for infringement
of
its right to light.
KENDALL FREEMAN
- Most
of
the above arguments are applicable to Kendall Freeman. They too, did not respond to the open approach by the Defendants. Their rights, if infringed, will suffer even less damage that that
of Midtown
. First, they have no clear capital interest that will be diminished in value. Second, the proposed development does not affect in any way their existing use
of
the
Property
, nor on the evidence any use to which they will put it in the light
of
any refurbishment or redevelopment. Indeed, such refurbishment plans were produced, suggested that there would be even larger open plan areas with less access to natural light.
- Kendall Freeman did produce a number
of
partners and employees who stressed in their evidence how valuable they regarded the natural light.
Of
course, such subjective views are not relevant in assessing objectively whether a right to light has been infringed; see Carr-Saunders –
v
- Dick McNeil Associates
Ltd
. [1986] 1 WLR 922 at page 925. That authority
of
course provides good guidance as to the need to approach easements
of
light infringement with flexibility. Thus Millett J rejected a rigid application
of
the 50/50 rule (page 927) and reiterated that the diminution also has to be assessed by reference to potential users to which the dominant owner may reasonably be expected to put the premises in the future. Thus on a redevelopment, for example, as I have already said in regard to the
Midtown
issue, there maybe a loss
of
opportunity for development, which involves user
of
the natural light in a way in which it is not presently used. No such consideration
of
course applies to Kendall Freeman, as their evidence showed they had no present or future intention to use the
Property
in any way different from that in which they currently used it. Although the witnesses stressed in vague and subjective ways
of
the advantages
of
natural light, as opposed to artificial light, they could not give any coherent answers to Mr Morgan QC's cross-examination in that regard. What they were talking about was in reality the view and airiness, which are not factors that are relevant. I found the answer as to why they never worked with the lights off (because the switches were in a central bank) as being disingenuous. At one stage, Mr Morgan QC put to one
of
the witnesses that his evidence was "twaddle". This with hindsight, probably ought to have attracted an adverse judicial comment (see St Edmundsbury Board
of
Finance –
v
- Clarke (No. 2) [1973] 3 All ER 902 at page 931 (cp the non reference in the Weekly Law Reports). Nevertheless, I can well understand Mr Morgan QC's frustration. I found the evidence
of
the apparent delight in the unused enjoyment
of
the natural light somewhat unpersuasive. The reality is that modern offices do use artificial light to maintain a constant light. However, for the reasons I have set out earlier in this judgment that does not mean that that principle can be used to override a right to light in respect
of
natural light. It plainly does go however, to an injunction and this is an additional factor, which I take into account against Kendall Freeman, when I determine that they are not entitled to injunctive relief. The only factor missing from the
Midtown
analysis is
Midtown
's future losses potentially, when the present lease falls in. That is absent from Kendall Freeman's position, but it is but one factor that counts against
Midtown
. They have no need for an injunction, as the development on the Site will not affect their current use and enjoyment
of
the
Property
. I doubt whether they have suffered any capital diminution and their damages will be limited, I would have thought (although I leave this question open) to the right to participate in the extraction
of
compensation for giving up rights as a measure
of
damages. This case is one that if I were to grant an injunction to Kendall Freeman, like
Midtown
, would be oppression
of
the type that the House
of
Lords cautioned against in the Colls cases and which features in later authorities (such as Jaggard).
- For all
of
those reasons I therefore decline to grant Kendall Freeman an injunction also.
- It follows form the above that I will direct an inquiry as to damages. I will hear submissions as to the mode and forum
of
such an inquiry. One point that must be considered is how the damages (if any) based by reference to a reasonable price for release for the rights is going to be assessed. It seems to me that the Defendants cannot be required to pay the same sum twice over to the Claimants. It seems to me that there will be a one off payment, to be divided between the Claimants as they agree. If they cannot agree, then the court will determine the proportionate share
of
the Claimants by reference to their interest in the
Property
.
Of
course if the Claimants separately can identify separate heads
of damages, which are attributable only to their interests, those will be claimable in addition.
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