England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
MR JUSTICE LEWISON
[2007] EWHC 1655 (Ch)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 March 2008

Lord Justice Lloyd:

Introduction

1. In this appeal the court has to consider the correct interpretation and application of section 3 of the Prescription Act 1832. That section deals with the acquisition of a right to light by enjoyment of light over a 20 year period.
2. The right to light is unusual among easements in a number of respects. One is that it does not exist for the benefit of the dominant land generally but only as regards the access to light to defined apertures in a building, so that enjoyment cannot start until a building is constructed on the land in question with windows to and through which light can pass. Another difference, more important for present purposes, is that the acquisition of the right by prescription under the 1832 Act depends only on actual enjoyment; the enjoyment does not have to be "as of right", as it does in the case of other easements such as rights of way.
3. A consequence of this, as held by the Court of Exchequer Chamber in Frewen v. Philipps (1861) 11 CBNS 449, and confirmed by the House of Lords in Morgan v. Fear [1907] AC 425, is that a tenant can acquire a right to light over adjoining land even if that land belongs to his landlord and is let to another tenant. Common ownership is not relevant, although common occupation would be relevant.
4. Section 3 of the 1832 Act provides for one way of preventing the acquisition of the right, namely if the enjoyment of the light was by virtue of a consent or agreement. The question in this appeal is what is necessary to constitute such consent or agreement. The appeal is brought against an order of Lewison J made on 13 July 2007, by permission granted by the judge. The judge held that a particular provision in a lease of the claimant's land did amount to a consent or agreement within section 3, such as to prevent the claimant from relying on 20 years' enjoyment of light to constitute the prescriptive acquisition of a right under section 3. His judgment is at [2007] EWHC 1655 (Ch).

The facts

5. The various parcels of land which we have to consider are in Liverpool, on or near Strand Street, just south of where that road runs past the Three Graces. The claimant's land, the building on which is called Regian House, has a narrow frontage to Strand Street. The building itself is parallel to Strand Street and stretches from Redcross Street northwards to James Street, opposite James Street Station. To the north east of the claimant's property, lying between it and Derby Square, there are two buildings of peripheral relevance to the case, called Victoria House and Graeme House. To the south east of Regian House, at the corner of Strand Street and Redcross Street, is an area now occupied by a car park which belongs to the first defendant. Across Redcross Street, to the south of Regian House, and lying between Strand Street and the Queen Elizabeth II Law Courts in Derby Square, is an area belonging to the second defendant which has on it a low building called Strand House and behind that a car park.
6. Regian House seems to have been built in the 1970's. A deed dated 14 February 1978 mentions "the building recently erected" on that parcel of land. The land then belonged to Liverpool City Council. On 26 February 1980 the Council granted a 99 year lease of that land, running from 1975, to Possfund Trustees Limited. It is on that lease that the argument turns. Possfund Trustees Limited granted an underlease on the same date for the whole term less ten days. The freehold remained in the Council's ownership until May 2001 when the claimant bought it at auction. It seems that the claimant has since then bought in the interests under the lease and underlease.
7. Victoria House and Graeme House belonged to Standard Life Assurance Company and in 1978 both of them were subject to a lease to the Secretary of State for the Environment. By the deed which I have mentioned dated 14 February 1978, made between the Council, Standard Life and the Secretary of State, certain rights were granted and adjusted between the respective parties. By clause 3, express provision was made by reference to section 3 of the 1832 Act to the effect that the Council's enjoyment of any light over Victoria House and Graeme House to the windows of Regian House facing north east was on sufferance, so as to preclude the acquisition of any right to light under section 3.
8. The land now owned by the defendants also originally belonged to the Council. It remained in the Council's ownership until 1989, when it was sold to a predecessor in title of the defendants.
9. Light obstruction notices were registered by the defendants against Regian House in 2006 but, while nothing is admitted, it seems that light had been enjoyed to the many windows on the Strand Street side of Regian House for more than 20 years by then. However, for part of that period the 1980 lease was in existence and the question is whether during the subsistence of that lease, enjoyment of the light was affected by an agreement or consent within the terms of section 3.

The 1980 lease

10. The lease was of the land now owned by the claimant, together with various rights set out in the first schedule to the lease and subject to the exception and reservation to the lessor of other rights set out in the later part of that schedule. Nothing turns on the particular rights granted to the lessee, though I note that in paragraph (e) express reference is made to the deed dated 14^th February 1978 which I have already mentioned. Among the exceptions and reservations, paragraph (h) mentions rights to the access of light and air from Victoria House and Graeme House to the windows of Regian House. That corresponds, though in slightly odd terms, to the exclusion of the existence of any such rights by the 1978 deed.
11. Paragraph (i) is central to this case. It is as follows:

"Except and reserving to the Lessor and its lessees and others entitled to the like rights … (i) the full and free right to erect build rebuild and/or alter as they may think fit at any time and from time to time any buildings or bays or projections to buildings on any land adjoining the demised property and/or on the opposite sides of the adjoining streets and access ways."

12. Clause 2 of the lease is as follows:

"Provided always that nothing herein contained shall operate to grant by way of implication or otherwise any estate right or easement not hereby expressly granted or not hereafter expressly granted by the Lessor over or in respect of any land retained by or belonging to the Lessor whether now held on lease from the Lessor or not or over any land to be hereafter acquired by the Lessor."

13. The tenant's covenants which are set out in clause 3 include one, paragraph (xviii), relating to rights of light. Paragraph (a) of this requires the tenant not to obstruct the light to any window in any building of the lessor except by buildings erected with the lessor's prior consent. Paragraph (b) requires the tenant to allow the landlord to take steps in the name of the tenant to prevent the acquisition of rights of light over the demised property.
14. Clause 4 contains provisos which include one preserving expressly the landlord's freedom to deal with its adjoining or neighbouring property free from any of the covenants contained in the lease, thus demonstrating that its ability to exploit that land was not to be impeded by any suggestion that equivalent covenants ought to be imposed.
15. The landlord's covenants in clause 5 included an indemnity covenant in respect of any action taken to prevent the acquisition of rights of light under clause 3(xviii)(b), as well as a covenant for quiet enjoyment.
16. Of these provisions, only clause 2 and paragraph (i) of the first schedule are directly relevant, but the others show that the parties had well in mind actual and potential rights of light over, or in favour of, the demised property.
17. For the appellant, Mr Bickford-Smith contended that an agreement for the purposes of section 3 must make it clear that it is to render the enjoyment of light permissive or consensual. He can point to a precedent by which this is made clear to the point of over-emphasis, in clause 3 of the deed dated 14 February 1978. This is as follows:

"3(a) In further pursuance of the said agreement and in further consideration of the rights hereinbefore granted the Council hereby admits that it has no right to the access of light from the said land edged red on the said Plan No 4 to any of the windows in the building recently erected on the land edged blue on the said Plan and that the enjoyment of any such light is and shall be on sufferance

(b) The Council shall pay to Standard Life the sum of five pence per annum on each anniversary of the date of this deed (if demanded) as an acknowledgment that its enjoyment of the access to light is not as of right but by the permission of Standard Life and the Secretary of State only Provided that the failure to demand or to make such payments from time to time shall not operate to the prejudice of Standard Life or the Secretary of State or be deemed to be an admission on their part that the said light is being enjoyed or has been enjoyed otherwise than by permission under this deed

(c) The agreement herein contained shall be deemed to be an agreement within the meaning of Section 3 of the Prescription Act 1832 and Section 1 of the Rights of Light Act 1959 and to preclude the prescriptive acquisition of a right to light in respect of the said windows over the said land edged red on the said Plan under the said statutes or otherwise"

18. The contrast, he suggested, is stark between this repetitive but certainly unequivocal provision and the relatively oblique and inferential effect of paragraph (i) of the first schedule to the 1980 lease. Given that the parties to the lease referred to the 1978 deed and therefore had clause 3 available as a model, which they could use if they wished to take advantage of the exception to section 3, he submitted that it should be inferred that, not having followed this example in any respect, they did not intend to invoke that exception.

The 1832 Act

19. Section 3 of the 1832 Act is as follows:

"When the access and use of light to and for any dwelling house, workshop, or other building shall have been actually enjoyed therewith for the full period of 20 years without interruption the right thereto shall be deemed absolute and indefeasible any local usage or custom to the contrary notwithstanding unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing."

20. In order to fall within the exception introduced by the word "unless", it is necessary to find a provision, contained in a deed or other writing, amounting to a consent or agreement, by virtue of which the light was enjoyed, that provision being "expressly made or given for that purpose".
21. At paragraph 9 of his judgment the judge observed:

"While the reference to "consent" envisages a permissive enjoyment of light, I do not think that the word "agreement" necessarily does. The function of the agreement is to prevent the enjoyment of light from being deemed to be "absolute and indefeasible". If, therefore, an agreement provides for the enjoyment of light not to be absolute and indefeasible it will, in my judgment, be sufficient to prevent the deeming provision from taking effect."

22. As the judge noted at paragraph 10 of his judgment, and as is common ground, a right to light may be acquired by grant, either express or implied, as well as by prescription, and a grant may arise under section 62 of the Law of Property Act 1925 or under the rule in Wheeldon v. Burrows (1879) 12 ChD 31. Acquisition by grant, in the case of a lease, takes effect on the date of the lease whereas acquisition by prescription depends on enjoyment for 20 years thereafter.

Counsel's submissions

23. For the Appellant, Mr Bickford-Smith set out his submissions under four headings. He argued that the judge's decision below was inconsistent (1) with authority, (2) with the words of the statute, (3) with principle and (4) with relevant conveyancing precedents. As regards the first point his argument was that the decision of the Court of Appeal in Mitchell v. Cantrill (1887) 37 ChD 36, bound the court to decide in his favour on the terms of the 1980 lease. On the second point he argued that the section requires an express reference to light in one way or another. The principle which he invoked for his third point was that a lease should not readily be construed as cutting down in favour of the landlord rights which would otherwise be granted to, or which might eventually be acquired by, the tenant as a result of its execution. For the fourth point he showed us some precedents which deal with the point explicitly.
24. Mr Francis for the Respondents submitted that the judge was right for the reasons given. He argued that the "purpose" referred to in section 3 was that of preventing the enjoyment of light becoming absolute and indefeasible by the mere fact of enjoyment over 20 years and that, once the first task of construing the relevant provision had been carried out, the resulting interpretation would be that which was expressed by the document, in terms of the statute.

Previous decided cases

25. In Marlborough (West End) Limited v. Wilks Head and Eve (unreported 20 December 1996) Lightman J said this:

"Whether or not a document constitutes such a consent or agreement is a question of construction. In this context, care must be taken to distinguish between provisions designed to protect the servient owner by negativing the implication of a grant of an easement or the grant of analogous rights under the doctrine of non-derogation from grant or to establish by agreement the existing legal rights of the parties; and provisions designed to authorise the servient owner at a future date to carry out works or build as he pleases unrestricted by any easement of light in favour of the dominant land and notwithstanding any resultant injury to the light enjoyed. Provisions of the former character do not constitute either consents or agreements by the servient owner licensing or consenting to the future enjoyment of the access to light and accordingly do not prevent acquisition of light by prescription (see Mitchell v Cantrill (1887) 37 Ch D 36); but provisions of the latter character may be construed as consents or agreements permitting the enjoyment of light during the interim period and accordingly (as provided in Section 3) preclude any easement arising by prescription under the Act (see Willoughby v Eckstein [1937] Ch 167)."

The judge thus drew attention pertinently to the difference between acquisition by grant at the date of the disposition and acquisition by prescription based on actual enjoyment after that date.

26. Counsel deployed before us, as they had before the judge, such reported cases as can be found in which the question has arisen whether the prescriptive acquisition of light was excluded by a consent or agreement. Since, as Lightman J said, the question is always one of construction, less turns on the actual result of each case than on statements of principle.
27. The first relevant case was an appeal to the Court of Appeal from the Chancery of the County Palatine of Lancaster sitting at Liverpool: Mitchell v. Cantrill (1887) 37 Ch D 36. The dispute arose between two adjacent lessees from the same lessor. Each lease contained (so far as the report shows) only one relevant provision namely an exception out of the demise of "rights, if any, restricting the free use of any adjoining land or the conversion or appropriation at any time thereafter of such land for building or other purposes". At first instance the judge concluded that this exception was an agreement or consent within section 3 and dismissed an application for an interlocutory injunction. The Court of Appeal disagreed, and held that the only effect of the exception was to prevent any immediate right to light arising on the grant directly or by reference to the principle of non-derogation from grant.
28. Cotton LJ giving the first judgment, having referred to section 3, said at pages 59-60:

"Now does this clause which I have read bring it within that? In my opinion it does not. It is not an agreement given for the purpose of the enjoyment of the light, but it is simply an exception out of the grant made of appurtenances and rights, so as to prevent the lessee from urging as against the landlord or anybody claiming through him, before a right had been obtained under the statute, that the landlord could not derogate from his own grant either by his building or granting to anybody else a right to build so as to interfere with the Plaintiff's lights. That is the reasonable, and I think, the only meaning of this clause. It was in effect saying, "If I grant this house to you without protecting myself, you will say, if I build up any adjoining house, that is derogating from my own grant; and this clause is to prevent any such contention being made." But if independently of the grant the lessee has enjoyed the use of these windows for twenty years he will have the same right as against the adjoining lessee as against a stranger. There was certainly no case referred to in the argument to shew that such claim as is contended for by the Plaintiff exists. But he has the right simply by the effect and operation, not of the grant, but of the statute, and in my opinion he is entitled to enforce that.

Then there was another point which was suggested, that this must be considered an agreement between the landlord and the lessee, that the landlord should be at liberty if he thought fit to do anything, even although it would operate so as to interfere with his right to light; but I do not think that is the true meaning of it. If you had an express proviso in the contract between the parties that, notwithstanding the grant to the Plaintiff, the landlord should be at liberty to build so as to interfere with his right, that would be another point, but that is not the express form of it, and in my opinion the fair and clear meaning of this clause, construing it without reference to the consequences to one party or the other, is not anything of that sort."

29. Lindley LJ said at page 62:

"The last words in the section mean that when you find an agreement under which the light is enjoyed you must look at that agreement and see what, if any, right to light is expressly given by it. Here the Plaintiff falls under the words of the statute, and it appears to me the contention of the Defendant is not warranted by the words at the end of the section. There is nothing except the grant coupled with the words which Cotton LJ has alluded to, and which obviously are for the purpose of preserving to the lessee a right, until an adverse right is acquired, of doing what he likes with the adjoining property. Under the grant he could deal with that property as he liked within the twenty years, and within that period he might have blocked up all these lights; but after the Plaintiff has enjoyed them without interruption for twenty years the statute confers upon him the right to their future enjoyment. I think therefore this appeal should be allowed."

30. Lopes LJ likewise construed the exception as directed only to acquisition by the original grant, rather than by subsequent enjoyment. As to the argument that the exception was a consent or an agreement within section 3 he said "for the reasons which have already been given I am clearly of opinion that cannot be brought within those words". Those reasons already given were that the exception excluded grant but not prescription.
31. The basis of the decision, therefore, was that the express provision negated any immediate acquisition of a right to light, whether by implied grant or by the effect of the covenant for quiet enjoyment or the principle of non-derogation from grant, and did not on its true reading constitute an agreement or consent relating to the future enjoyment of light. The end of the passage quoted from the judgment of Cotton LJ is valuable as an illustration of his thinking but is not part of the ratio of the decision. Moreover, taking that last sentence as a whole, Cotton LJ appears to me to say that the court's first task is to construe the particular provision on ordinary principles, without reference to the consequences of any particular construction for either party, but so as to determine its true meaning, and then to consider whether it comes within the terms of the section.
32. Mr Cozens-Hardy QC having been Counsel in that case, by 1903 as Cozens-Hardy LJ he sat in the Court of Appeal on the next occasion when this court had to consider section 3. The other members of the court were Lord Halsbury LC and Lord Alverstone LCJ. The case is Ruscoe v. Grounsell (1903) 89 LT 426. The court had to consider whether a stone tablet set into the wall of a building in 1816 amounted to an agreement or consent within section 3. The tablet said "this stone is placed by John Atkin [the purchaser] to perpetuate John Musgrave's [the vendor and owner of adjoining land] right to build within nine inches of this and any other building." The court held that it did not come within section 3. Mr Stewart-Smith KC for the appellant had submitted that the consent or agreement referred to in the proviso must be one expressly made for the purpose of preventing the acquisition of a prescriptive right to light and it must expressly refer to the use or enjoyment of light. The court did not proceed on that basis. Lord Halsbury said this at page 427:

"Enjoyment of light for twenty years would prima facie, under section 3 of the Prescription Act 1832, give a right to the light. Those who deny that the right has been acquired must show that the right has been cut down by the proviso to section 3. Looking at what has been done in this case, I will assume that the stone tablet contained an agreement and that it was in writing. But the question still remains whether that which appears upon this stone is an express agreement relating to light and made for that purpose. Looking at the possible reasons why the parties may have agreed to this inscription, I am wholly unable to say that it is so. I cannot say why the parties agreed to put this tablet up. If I were to do so, I should be doing that which the tablet itself has carefully avoided doing. I cannot come to the conclusion that it was in the minds of the parties that this tablet was intended to be a reservation as to the acquisition of a right to light. I can imagine it possible that the parties desired to preserve the boundary, when we see the statement as to "nine inches." I cannot, then, come to the conclusion that the right to obstruct the access of light to the windows of these houses was expressly reserved by an agreement expressly made for that purpose."

33. Thus, the court decided the case on the ground that, from the extremely limited materials available, it could not be said that the purpose of the inscription, assuming it to be an agreement in writing, was to deal with the enjoyment of light. At the very least, therefore, that is not a decision in favour of Mr Bickford-Smith's contention that a reference to light is indispensable for the section. Instead it proceeded on the basis that it is a question of the proper construction of the particular provision in question. In that respect the decision is entirely consistent with Mitchell v. Cantrill.
34. Accordingly, it is not useful to devote time considering other cases decided on other documents. I will therefore pass over the cases of Haynes v. King [1893] 3 Ch 439, Hyman v. Van den Bergh [1907] 2 Ch 516 and Foster v. Lyons & Co Limited [1927] 1 Ch 219, in each of which there was an express reference to light in the particular text.
35. I must however consider Willoughby v. Eckstein [1937] Ch 167, decided by Luxmoore J, in which the text was closer to that of the present case and did not refer in terms to the enjoyment of light in relation to the future. The parties were adjoining tenants of the same landlord, the Grosvenor Estate. The plaintiff sought to restrain the defendant from obstructing the plaintiff's windows and the question was whether the plaintiff had enjoyed light to those windows by virtue of a relevant consent or agreement. 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."

36. The judge noted that any immediate right of light was expressly excepted out of the demise. He reviewed the principal cases. At page 171 he said this:

"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 his review of the authorities he said this at page 173:

"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."

37. Applying that approach to the document in question in that case, and having referred in particular to the words about rebuilding or altering the adjacent buildings, he concluded as follows, at page 174:

"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 he held that the agreement did come within the terms of section 3.

38. I do not consider it necessary to examine any later case before the decision under appeal. I have already quoted from the judgment of Lightman J in Marlborough (West End) Limited v. Wilks Head and Eve. The deed in question in that case did refer expressly to the enjoyment of light to given windows.
39. Having considered the cases in the Court of Appeal, I cannot accept Mr Bickford-Smith's first submission, that the previous authorities compel a decision in favour of the appellant. In Mitchell v. Cantrill the only provision in question was equivalent to clause 2 in the present lease. Quite apart from the general point that a decision on one document is not binding as to the meaning of another in different terms, there is nothing in the judgments in the Court of Appeal in that case which casts light either way, as a matter of decision, on a document which includes both a provision excluding an immediate implied grant and another which is directed at the position in the future.

Must the provision refer expressly to light?

40. Willoughby v. Eckstein is the only previous case in which it has been held that a provision which does not refer to light in some way did amount to a consent or agreement for the purposes of section 3. In Ruscoe v Grounsell it was submitted to the Court of Appeal that such a reference was necessary, but the court relied on other reasons for holding that the provision did not qualify as a consent or agreement under the section. Mr Francis did not go so far as to submit that Ruscoe v. Grounsell is a binding authority that a reference to light is not necessary, though if the court had accepted Mr Stewart-Smith's contention, that there must be an express reference to the use or enjoyment of light, it could have decided the case in even more succinct terms than it did.
41. Mr Bickford-Smith's argument on the point is based on taking the statutory phrase "expressly made or given for that purpose" as a whole, and tying the word "expressly" to the reference to the purpose. That phrase appears also at the end of each of sections 1 and 2 of 1832 Act, but for reasons to do with the different considerations arising in relation to rights of light as compared with other easements and with profits, the phrase seems not to have had judicial consideration except in relation to section 3.
42. He argued that some such reference is necessary in order that the agreement or consent should come within the statutory phrase "expressly made or given for that purpose", that is to say for the purpose of rendering consensual the continued enjoyment of light to any window. He referred to Cotton LJ's words "an agreement given for the purpose of the enjoyment of light" and to his later words "an express proviso that the landlord should be at liberty to build so as to interfere with his right [that is, right to light]." He also referred to Luxmoore J's words "there must be an express written agreement under which the actual enjoyment of light by a lessee is permissive", and submitted that Luxmoore J's decision failed to give effect correctly to the reasoning that he had himself expressed.
43. Notwithstanding these various observations, it seems to me that nothing in the cases supports this argument. If the submission were correct then, however clear it might be as a matter of the true interpretation of a provision that its intended effect was that the enjoyment of light should be permissive or consensual, so that it should not become absolute and indefeasible after 20 years, that provision could not take effect in accordance with normal principles of construction for want of some word or phrase referring in terms to light, or to windows, or in some other way pointing specifically to section 3 of the 1832 Act.
44. In my judgment that proposition cannot properly be drawn from the terms of section 3. I consider that the phrase "expressly made or given for that purpose" can be satisfied by an express provision in the relevant document which, on its true construction according to normal principles, has the effect of rendering the enjoyment of light permissive or consensual, or capable of being terminated or interfered with by the adjoining owner, and is therefore inconsistent with the enjoyment becoming absolute and indefeasible after 20 years.
45. Lewison J, having considered most of the cases to which I have referred, and some others, rejected the proposition that there must be an express reference to light as being unsupported by authority and inconsistent with Willoughby v Eckstein. He drew from the cases the same distinction to which Lightman J referred, namely between dealing with the position as at the date of the lease and dealing with the position in the future. He said at paragraph 34:

"Clauses of the second kind may prevent the acquisition of a right of light by prescription if what they authorise would interfere with light. If, on a fair reading of the clause they do, then it is not necessary, in my judgment, for the clause to use the word "light". Nor, in my judgment, is it necessary, in my judgment, for the clause to provide that the enjoyment of light is "permissive". What is needed is that the clause makes it clear that the enjoyment of light is not absolute and indefeasible. The court must "find out the substance of the contract": in other words it is a question of interpretation of the clause in question. Once the clause has been interpreted, that interpretation will have been "expressly" agreed. A clause in a lease which authorises the landlord to build as he pleases is likely to satisfy the test."

He then applied that approach to the facts of the case and found paragraph (i) did constitute an agreement within section 3.

46. In my judgment he was correct to reject this submission on the part of Mr Bickford-Smith. I agree with him that Luxmoore J was not wrong in his decision in Willoughby v. Eckstein, as to the meaning and effect of section 3, and in particular as to the absence of any requirement for an express reference of any kind to light.

The correct approach to interpretation of a relevant provision

47. I therefore come to Mr Bickford-Smith's third proposition, directed to the interpretation of a provision relied on for these purposes. He contended that if a clause in a lease which is relied on for the purposes of the section is capable of being read as referring to something other than light, then it must be so read and should therefore not be held to satisfy the section, since otherwise it would wrongly cut down rights which the tenant might in future acquire by virtue of his occupation for the premises under the lease. That seems to me to be an artificial approach, inconsistent with general principles as to the construction of documents, and also with what was said on this particular point by Cotton LJ in Mitchell v. Cantrill.
48. In principle, the question whether any particular document satisfies the exception in section 3 must depend upon the true construction of the document, in the relevant surrounding circumstances, taking the document as a whole, although of course focusing particularly on that part of the text which is said to constitute the agreement or consent. No doubt, as Lord Halsbury said in Ruscoe v. Grounsell, if anything turns on the burden of proof, it lies on the party who seeks to set up the agreement or consent, though since it must be in a document it seems unlikely that the burden of proof will often be relevant. There may be circumstances in which a contra proferentem approach can properly be adopted, but that is only appropriate if there is genuine doubt or ambiguity as to the meaning of the provision. I can see no basis for a special rule, applicable to leases, that a provision in the lease must be construed narrowly against the landlord, rather than according to normal principles. That is supported by what was said both in Mitchell v Cantrill and in Ruscoe v Grounsell.
49. For those reasons, I would reject Mr Bickford-Smith's third proposition.

The true construction of the 1980 lease

50. I turn therefore, last, to the proper interpretation of the relevant provisions of the 1980 lease to see whether they do have the effect which the judge considered them to have, so as to amount to an agreement for the purposes of section 3. I have mentioned or quoted the various relevant parts of the document. Clause 2 excludes any immediate grant so that the question is whether, in context, paragraph (i) of schedule 1 deals with the future enjoyment of light as well as other matters in the future.
51. Mr Bickford-Smith is entitled to argue that the lease contains several express references to rights of light, or the enjoyment of light which might mature into a prescriptive right: see schedule 1 paragraph (h), clause 3(xviii) and clause 5(a). It also has the express reference in schedule 1 paragraph (e) to the 1978 deed which contains an example of a clear express provision excluding prescriptive acquisition for the future. Such a technique could have been used instead of the general words of paragraph (i). He submits, by reference to these provisions, that the absence of reference to light in paragraph (i) should be taken to signify that the parties were not concerned with light in that paragraph.
52. I find that argument unconvincing. The parties were plainly well aware of the importance of rights of light, as appears for example in clause 3(xviii)(b) and (d), and of the process of acquisition of rights of light. The lease had a prospective duration of 94 years. The existence of rights to light in favour of the demised property over adjoining property retained by the landlord (a) was legally and practically possible, and (b) would plainly be one of the more significant constraints on the landlord's ability to build as it might think fit on its property in the vicinity. In the light of all these factors, it seems to me that it would be a perverse construction of paragraph (i) to read it as directed to all other possible constraints on the landlord's freedom of action but not to the possible acquisition of rights to light in favour of windows in the demised premises over adjoining property of the landlord.
53. Mr Bickford-Smith also made submissions by reference to conveyancing precedents. That argument does not seem to me to have any greater weight than his point that the parties did make express provision about light elsewhere and had a clear example of how to make an express provision under section 3, and nevertheless did not refer to light in paragraph (i). For the reasons already given I cannot accept that this argument allows the paragraph to be read as relating to everything except light. To read it in that way would make nonsense of its express terms and its manifest intention.
54. Accordingly, in my judgment the judge came to the right conclusion and for the right reasons. I would dismiss this appeal.

Lord Justice Lawrence Collins

55. I agree that the appeal should be dismissed for the reasons given by Lloyd LJ.
56. The lease excepted and reserved to the lessor (and its lessees) "the full and free right to erect build rebuild and/or alter as they may think fit at any time and from time to time any buildings or bays or projections to buildings on any land adjoining the demised property and/or on the opposite sides of the adjoining streets and access ways." The crucial phrase in section 3 of the 1832 Act is: "unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing."
57. Whether there was a consent or agreement expressly given or made for that purpose is a question of construction of the document, and no express reference to light is necessary. That emerges from the passage in the judgment of Cotton LJ in Mitchell v. Cantrill (1887) 37 Ch D 36, at 60, where he said:

"Then there was another point which was suggested, that this must be considered an agreement between the landlord and the lessee, that the landlord should be at liberty if he thought fit to do anything, even although it would operate so as to interfere with his right to light; but I do not think that is the true meaning of it. If you had an express proviso in the contract between the parties that, notwithstanding the grant to the Plaintiff, the landlord should be at liberty to build so as to interfere with his right, that would be another point, but that is not the express form of it, and in my opinion the fair and clear meaning of this clause, construing it without reference to the consequences to one party or the other, is not anything of that sort."

58. That approach is confirmed by Ruscoe v. Grounsell (1903) 89 LT 426, which proceeded on the basis that the question is one of construction, and that no express reference to light as such is required. Lord Halsbury LC is reported as having said (at 427): "But the question still remains whether that which appears upon this stone is an express agreement relating to light and made for that purpose. Looking at the possible reasons why the parties may have agreed to this inscription, I am wholly unable to say that it is so."
59. The approach of Luxmoore J in Willoughby v. Eckstein [1937] Ch 167, and of Lewison J in the present case, is, therefore, the right one, and for the reasons given by Lloyd LJ I am also satisfied that paragraph (i) in the exceptions and reservations satisfies the requirement of section 3 of the 1832 Act.

Lord Justice Mummery

60. I agree with both judgments.