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Midtown Ltd v City of London Real Property Company Ltd; ChD 20 Jan 2005

References: [2005] EWHC 33 (Ch), Times 14-Feb-2005, [2005] 14 EG 130
Links: Bailii
Coram: The Honourable Mr Justice Peter Smith
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 right of light had been acquired. The sky contour diagrams projected that the reductions in available light as a result of the development would be very large. In general, the percentages would be reduced to single figures from figures prior to development which were in excess of 50%.
Held: The claimant had failed to establish sufficient enjoyment of the light to establish a right. Where a Local Authority relied 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. The authority could not rely upon the 1990 Act to override easements. It was argued that since modern offices would always be lit artificially, older standards of light level should be disregarded. This was rejected because it took no account of possible varying uses.
Statutes: Prescription Act 1832 3, Law of Property Act 1925 62, Town and County Planning Act 1990 237
This case cites:

  • Cited – Gayford v Moffatt ([1868] 4 Ch App 133)
    The enjoyment of a light or any other easement by a tenant is in law the enjoyment of the landlords. . .
  • Cited – Pugh v Savage CA ([1970] 2 QB 373, Bailii, [1970] EWCA Civ 9, [1970] 2 WLR 634, [1970] 2 All ER 353, (1970) 21 P & CR 242)
    The enjoyment of an easement by a succession of tenants is sufficient to create a right by prescription for the landlord. . .
  • Cited – Morgan v Fear HL ([1907] AC 425, 76 LJ Ch 660, 51 Sol Jo 702)
    Two adjoining tenants held of the same landlord. One enjoyed access and use of light over the adjoing tenanted premises for a period in excess of twenty years and without interruption.
    Held: An absolute right of light was acquired as against . .
  • Cited – Fear v Morgan CA ([1906] 2 Ch 406)
    . .
  • Cited – Colls v Home and Colonial Stores Ltd HL ([1904] AC 179, 73 LJ Ch 484, 90 LT 687, 53 WR 30, 20 TLR 475, Bailii, [1904] UKHL 1)
    The courts below had concluded that the defendant had infringed the plaintiff’s right to light, and had awarded an injunction.
    Held: the appeal succeeded. The House set out the requirements for establishing the existence of a right to light. . .
  • Cited – Tapling v Jones ([1865] 11 HLC 290)
    The land owner had a building with three stories. Each had a window with established rights of light. He extended the windows in the ground and first floor, and added two new stories. The neighbour built on his own land to an extent sufficient to . .
  • Cited – Maridive & Oil Services (SAE) and Another v CNA Insurance Company (Europe) Ltd CA (Bailii, [2002] EWCA Civ 369, [2002] 2 Lloyd’s Rep 9, [2002] 2 LLR 9, [2002] 1 All ER (Comm) 653)
    The Civil Procedure Rules have allowed the Courts to accept an amendment to introduce a cause of action arising out of facts occurring subsequent to the commencement of the proceedings. There is no absolute rule of law or practice which precludes an . .
  • Cited – Halliard Property Co Ltd v Jack Segal Ltd ([1978] 1 WLR 377, [1978] 1 All ER 1219)
    The court considered a proviso for re-entry that: ‘forfeiture on the bankruptcy of the lessee is considered as a case of breach of condition.’
    Held: It was clearly a condition rather than a mere covenant of the original protected tenancy that . .
  • Cited – Foster v Lyons & Co ([1927] 1 Ch 219, 96 LJ Ch 79)
    The lease contained a reservation which would allow the freeholder to build upon his neighbouring land whether or not it obstructed any rights of light in the demised premises.
    Held: The reservation was effective to prevent a right of being . .
  • Cited – Willoughby v Eckstein ChD ([1937] 1 Ch 167, [1936] 1 All ER 650)
    The parties were adjoining tenants of the same landlord, the Grosvenor Estate. 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 . .
  • Cited – Marlborough (West End) Ltd v Wilks Head & Eve ChD (Unreported, 20 December 1996)
    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.
    He said: . .
  • Cited – Regina v City of London Corporation and Another Ex Parte Mystery of the Barbers of London QBD (Times 28-Jun-96, [1996] 2 EGLR 128)
    The authority acquired several plots of land at different times, some compulsorily, and others pursuant to purchase notice. It granted a lease to the second respondent who built on it. In 1969 the Council granted the applicants an area of adjoining . .
  • Cited – Stockport Metropolitan Borough Council v Alwiyah Developments CA ([1983] 52 P&CR 278)
    There was to be a development of six flats on land subject to a restrictive covenant. The developer began without a modification being sought. The benefit of the covenant was attached to adjoining land owned by the local authority, which they . .
  • Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA (Ind Summary 12-Apr-93, [1993] 33 RVR 56, [1993] 2 EGLR 15, [1991] 62 P&CR 652)
    Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
  • Cited – Sheffield Masonic Hall Co Ltd v Sheffield Corporation ([1932] 2 Ch 17)
    In considering whether a right to light was infringed, and 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 . .
  • Cited – Douglas Gafford v A H Graham and Grandco Securities Limited CA (Gazette 20-Oct-99, Times 01-May-98, Gazette 28-May-98, Bailii, [1998] EWCA Civ 666, [1998] 3 EGLR 75, [1999] 41 EG 159, [1999] 77 P&CR 73)
    A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his . .
  • Cited – Co-Operative Insurance Society Ltd v Argyll Stores HL (Times 26-May-97, House of Lords, Bailii, [1997] UKHL 17, [1997] 2 WLR 898, [1998] AC 1, [1997] All ER 297, [1997] 1 EGLR 52, [1997] CLC 1114, [1997] NPC 79, [1997] EG 81, [1997] 23 EG 141)
    The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
    Held: . .
  • Cited – Fishenden v Higgs & Hill Ltd CA ([1935] 153 LT 128)
    An injunction had been refused an injunction in respect of an infringement of an easement of light and awarded damages in lieu, even though the damages would be substantial because it had been shown that the plaintiff was plainly ‘only wanting . .
  • Cited – Bracewell v Appleby ChD ([1975] Ch 408)
    The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
    Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
  • Cited – Kennaway v Thompson CA ([1980] 3 All ER 329, [1981] QB 88, Bailii, [1980] EWCA Civ 1)
    The plaintiff’s property adjoined the defendant’s boating lake over which the defendant had, over several years, come to run more and more motor boat sports events. The trial judge had found that the noise created by the racing was an actionable . .
  • Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v City of London Electric Lighting Co CA ([1895] 1 Ch 287, [1891-4] All ER Rep 838, (1895) 64 LJ Ch 216, (1895) 72 LT 34, (1895) 12 R 112)
    The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
    Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
  • Cited – Jordan v Norfolk County Council ChD (Times 25-May-94, Ind Summary 20-Jun-94, Gazette 03-Aug-94, [1994] 4 All E R 218, [1994] 1 WLR 1353)
    An order to replace trees ‘as reasonably practical’ was to include cost considerations, and it could be varied where the costs exceeded those expected. The mandatory order was varied. When considering what was meant by ‘reasonably practical’ ‘. . . . .
  • Cited – Pugh v Howells CA ([1984] 48 P&CR 298)
    The court ordered a building to be demolished were the development had been speeded up and completed over a bank holiday weekend in order to present the plaintiff with a fait-accompli, having been warned that the proposed works would infringe a . .
  • Cited – Cowper v Laidler ([1903] 2 Ch 337)
    Buckley J said: ‘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 . .
  • Cited – Isenberg v East India House Estate Co Ltd ((1863) 3 De G J & S 263)
    The court refused a mandatory injunction to compel the defendant to pull down part of a new building which interfered with the plaintiff’s light and exercised instead the Court of Chancery’s recently-acquired jurisdiction under the 1858 Act to order . .
  • Cited – St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA ([1975] 1 WLR 468, [1973] 3 All ER 902)
    When looking at a contract ‘one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.’
    The contra preferetem rule can only come into play . .
  • Cited – Jaggard v Sawyer and Another CA (Ind Summary 22-Aug-94, [1995] 1 WLR 269, Bailii, [1994] EWCA Civ 1, [1995] 13 EG 132, [1995] 2 All ER 189, [1995] 1 EGLR 146, [1994] EGCS 139)
    The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
    Held: The appeal failed. A . .
  • Cited – Carr-Saunders v Dick McNeill Associates ([1986] 2 All ER 888, [1986] 1 WLR 922)
    The claim was for interference with the plaintiff’s right to light.
    Held: There is a need to approach infringements of easements of light with flexibility. The plaintiff’s subjective views as to the loss of light were not to the point. When . .

This case is cited by:

  • Cited – Regan v Paul Properties DPF No 1 Ltd and others ChD (Bailii, [2006] EWHC 1941 (Ch))
    The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
    Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .

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