Cases - Salvage Wharf Ltd v G & S Brough Ltd
Record details
- Name
- Salvage Wharf Ltd v G & S Brough Ltd
- Date
- [2009]
- Citation
- EWCA Civ 21
- Legislation
- Keywords
- Rights of light
- Summary
-
The appellants sought to undertake development works. The respondent owned a commercial property that had enjoyed rights of light for many years. The proposed development would take place in the immediate vicinity of the respondent’s property. The appellants entered into an agreement in 1999 with the respondent providing amongst other things that the respondent would not take any action to enforce any rights of light enjoyed by the property.
The development was carried out but a building that was to have been built behind the respondent’s property was not erected and the appellants instead sought planning permission for a major development which would have consequences beyond those envisaged in the agreement. The appellants applied for and obtained a light obstruction notice. The respondent applied to cancel the notice. The trial judge duly did so.
On appeal the appellants argued that the agreement to refrain from taking action in relation to the original development was an abandonment of any claim to rights to light and that from the date of the agreement, such rights were enjoyed with the consent or agreement of the servient owner.
Accordingly it was said that the respondent could not rely upon section 3 of the 1832 Act to establish 20 years use in the period immediately preceding the commencement of the action. The appeal was dismissed.
On a true construction of the agreement it acknowledged that the respondent had rights to light but provided that he would not enforce them. That was not an abandonment of rights. Further the agreement related to a specific development that would not have substantially affected the respondent’s rights. The respondent was not agreeing to a completely different development that would block all light passing through his property’s windows.
The implications are that agreements that purport to grant consent to an interference with the enjoyment of a right to light must be construed in their context and having regard to the surrounding circumstances.
When drafting a clause in a development agreement attempting to avoid claims for infringement of rights to light, it is necessary to make it clear that enjoyment of the right is not absolute and indefeasible. Consent to a specific development might not enable the servient owner to carry out works extending beyond those specified in the agreement.