Excluding the right
Section 3 of the 1832 Act provides 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."
This page deals with three cases in which the proviso has been considered.
Reservation in a lease
 EWCA Civ 151
The reservation in a lease of a right to build on adjoining property prevented the tenant from acquiring a right to light by prescription over the adjoining property even though it did not expressly refer to the right to light.
Section 3 of the 1832 Act
Under section 3 the enjoyment of light does not need to be 'as of right' as that expression is generally used in the law of easements. Nor is a prescriptive right under section 3 confined to a freehold right. Thus "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." (paras 2 and 3).
The lease in this case
In this case the question was whether or not a clause in a lease that reserved to the landlord a right to build on adjoining land made clear that the tenant was not to have an absolute and indefeasible right to light and therefore operated as an agreement or consent for the purposes of s.3 of the 1832 Act.
The relevant clause in the lease reserved to the landlord "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".
It is to be noted that the reservation in the lease did not expressly refer to the right to light. Did the absence of any such express reference mean that there was no agreement within s3 of the 1832 Act? Answer: No.
The following passage appeared in para 34 the judgment of Lewison J at first instance and was approved in the CA:
- "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." (Para 45)
Consent within s3 of 1832 Act
 EWCA Civ 21
When considering whether an agreement constitutes consent to the enjoyment of rights to light, so as to invoke the proviso to s3 of the Prescription Act 1832, it must be construed in context and with regard to the surrounding circumstances. In these particular circumstances, the relevant agreement did not operate as consent under s3 of the 1832 Act and the respondent had therefore not abandoned or lost its rights of light.
This case related to rights of light enjoyed by a property (“the Brough Property”) which the respondent had occupied prior to its compulsory acquisition for the purposes of a development by the appellants. Prior to this, the first appellant had served notice under s25 of the Landlord and Tenant Act 1954 to terminate the respondent’s tenancy of other, nearby premises – in order to allow another development project to proceed. The plans for the initial project led to a "1999 Agreement” between the first appellant and respondent, in which the respondent acknowledged that the development might “have adverse effects on subsisting rights to light air support and other easements and rights belonging to or enjoyed by” the Brough Property. The respondent agreed not to take any action to enforce these rights.
After the first development project had been completed, and as part of the preparations for the second project, the first appellant applied for registration of a light obstruction notice under s2 of the Rights of Light Act 1959 against the Brough Property. The respondent issued proceedings to seek a declaration that it was entitled to a right to light in respect of the Brough Property and that the light obstruction notice should therefore be removed. In the event that its claim succeeded, the respondent was likely to receive substantially more compensation for the compulsory purchase of the Brough Property.
The issue for the Court of Appeal was whether the provisions of the 1999 Agreement meant that the light to the Brough Property had subsequently been enjoyed by consent, in which case the respondent would have lost its prescriptive right to light in accordance with the proviso to s3 of the Prescription Act 1832. (There was also an issue as to whether the first appellant was entitled to register the light obstruction notice because of other provisions of the 1999 Agreement, but this is irrelevant to this case summary.)
Decision on appeal
The Court of Appeal reviewed the case law in this area, starting with Mitchell v Cantrill up to the recent case of RHJ Limited v FT Patten (Holdings) Limited.
The court agreed with Lloyd LJ in RHJ that an agreement must be construed in context and with regard to the surrounding circumstances, but noted that the 1999 Agreement was “radically different” to the document with which the court was concerned in RHJ.
The court concluded that the respondent had not abandoned or lost its rights of light as the 1999 Agreement did not operate as consent under s3 of the 1832 Act. The court was persuaded to its decision by: (i) the acknowledgment in the 1999 Agreement of the rights to light enjoyed by the Brough Property; (ii) the lack of any express provision whereby the respondent agreed to abandon its rights of light (as it had simply agreed not to enforce them); (iii) the fact that the first development project with which the 1999 Agreement was concerned did not give rise to any actionable interference with the light to the Brough Property; and (iv) the minimal consideration received by the respondent in return for entering into the 1999 Agreement.
Did consent apply after sale by original dominant owner?
 EWHC 1594
The wording of a conveyance constituted a “consent” precluding any such right to light arising.
C owned a nine-storey property, the dominant tenement (DT), one side of which contained a number windows that faced a property that was the servient tenement (ST) owned by D. The key question was whether a right of light to DT's windows had been acquired by prescription. This gave rise to two issues:
Issue (1): Had the light been enjoyed by "consent or agreement"?
The outcome of this issue turned on the construction of the wording of a conveyance in 1967 made by a predecessor of C - the Corporation. This conveyance granted rights to build to any height on ST:
- "notwithstanding that any such building may interfere with light or air now or any time hereinafter enjoyed by the buildings for the time being erected on any adjoining adjacent or neighbouring land owned by or vested in the Corporation.”
The clause added that any light or air enjoyed by buildings on the conveyed land would be:
- “deemed to be enjoyed by the leave or licence of the Corporation or their Successors in Title as the case may be”.
The court needed to determine whether these terms constituted a “consent or agreement” by which light was enjoyed by the windows.
Issue 2: Did the consent only apply while DT was owned by the Corporation?
The second issue was whether this “consent or agreement” applied only whilst DT was owned by the Corporation, or whether it applied irrespective of the identity of the owner of the land.
Issue 1: The court pointed out that it had been established by previous case law that appropriate wording authorising or permitting building could be construed as a "consent or agreement" so as to preclude any right to light being acquired. The wording in this case did that.
Issue 2: Whether consent had been given only while DT had been owned by the Corporation? The judge noted the difference in wording between the different parts of the conveyance – in particular the reference to light being enjoyed by the conveyed land with the “leave or licence of the Corporation”. However, it was necessary to have regard to the context in which the wording was used. Ultimately, the court considered it “more probable” that the wording was intended to identify the buildings concerned by reference to their physical status or location rather than by reference to their ownership from time to time.
The right to build on ST was not therefore limited to a right against the Corporation alone. C's enjoyment of light over ST continued as a result of the “consent or agreement” granted by the 1967 conveyance, even though DT was no longer owned by the Corporation. Accordingly, the proviso to s3 was engaged so as to defeat the claim to a right to light by prescription.