Cases - Bowring Services Ltd v Scottish Widows Fund and Life Assurance Society

Record details

Name

Bowring Services Ltd v Scottish Widows Fund and Life Assurance Society

Date

[1995]

Citation

1 EGLR 158

Legislation

• Prescription Act 1832
• Rights of Light Act 1959

Keywords

Rights to light - creation by prescription - interruption of enjoyment of light for a year - light obstruction notices - when the one-year period began to run under the Rights of Light Act 1959 - whether the enjoyment of light had been interrupted for a year - whether a right to light had been acquired - Prescription Act 1832, s. 3, s. 4 - Rights of Light Act 1959 - creation of right to light by lost modern grant - whether Custom of London prevented the creation of a right to light by lost modern grant

Summary

A claim was brought by a long lessee of Bowring Building in the City of London to rights of light over the defendant's building in Lower Thames St, London EC3.

The defendant had registered a light obstruction notice (LON) against the claimant's building based on a temporary certificate. A definitive certificate followed.

More than a year after registration of the light obstruction notice based on the temporary certificate, the claimant issued its writ. Within a year of this document's being issued, the defendant made a permanent entry of the light obstruction notice.

The court sought to answer the following questions:

(1) From what date did the year prescribed by section 3 of the Rights of Light Act 1959 run? Was it from the date of the light obstruction notice registered under the temporary certificate, or from the date of the later registration of the light obstruction notice based on the definitive certificate?

(2) If the former date applied, so that a claim under the Prescription Act 1832 was barred, did the Custom of London prevent a claim based on Lost Modern Grant?

The court found that the start date of the year during which an action had to be brought to challenge the light obstruction notice under section 3 of the Rights of light Act was the date of the registration of the light obstruction notice based on the temporary certificate. The claimant's writ was therefore out of time and ineffective to assert a claim to light under section 3 of the Prescription Act 1832.

It further ruled that the alternative claim based on Lost Modern Grant could not be asserted, as the Custom of London, which covered the City of London, applied in this case.

An alternative claim based on common law prescription requiring proof of the apertures back to 1189 failed, owing to the clear evidence that the claimant's building was not in existence before the 1960s. The claimant's action was therefore struck out.

It should be noted that this case also refers to the law on the proper method of challenge to certificates issued under the Rights of light Act by the Lands Tribunal, and the question of whether the proper method of challenge is by judicial review or ordinary civil action. In this case, it found that the former was more appropriate.