Shining A Light On Interpretation

Rights of light are often an issue for property owners keen to preserve the value of their assets by protecting the right to develop. In the recent case of CGIS City Plaza Shares 1 Limited & Anr v Britel Fund Trustees Limited [2012] EWHC 1594 (Ch),the court was asked to examine the extent to which successors to the original owner of a property were permitted to interfere with light received by the neighbouring property and the operation of rights to light arising a result of coincidence between old and new apertures.

Background facts

The claimants in this case owned a nine storey property, City Plaza on Cannon Street in Birmingham. The property was built between 1987 and 1988 and the original windows were in place by February 1988. One side of City Plaza – containing 69 apertures - faced the defendant's properties at Temple Row on Cannon Street.

In May 2008, the defendant's predecessors-in-title had registered a temporary light obstruction notice against City Plaza under section 2(3)(b) of the Rights of Light Act 1959. A definitive certificate was registered in September 2008. The claimants sought an order to cancel the certificate and a declaration that City Plaza enjoyed a right to light pursuant to the Prescription Act 1832.

The issues

The key issue in the case centred around the language used in a conveyance dated 6 June 1967 made between the Corporation of Birmingham on the one hand and the Governor and Company of the Bank of England on the other. Put shortly, the question was whether the 1967 conveyance gave the owner of the defendant's property the right to build on its land and interfere with the light or air to City Plaza only whilst City Plaza was owned by the Corporation, or whether this protection continued irrespective of the identity of the owner of City Plaza. In the event that the right only endured whilst City Plaza was owned by the Corporation, the defendant accepted that 62 of the 69 apertures on the relevant façade (plus some other minor apertures) would have acquired rights to light by prescription due to long use.

Another important issue in the case related to the remaining windows within the façade of City Plaza facing the defendant's property. Five of these windows had been altered in around 2006 and the defendant argued that these alterations meant that the windows did not enjoy any right to light. The parties were agreed that a finding on the first issue (i.e. relating to the construction of the 1967 conveyance) in the defendant's favour meant that the second issue would become irrelevant, but the judge was asked by both parties to express a view on the issue in any event.

History of ownership

At the time of the 1967 conveyance, part of the defendant's site was already owned by the Bank. The remainder of the defendant's property affected by this dispute was acquired through a purchase from the Corporation as documented by the 1967 conveyance. At that time, the Corporation retained its freehold interest in the land on which part of City Plaza now stands.

Clause 1 of the 1967 conveyance granted rights to the Bank, including the right for the Bank and its successors in title to build to any height on its land "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."

There was then a proviso to clause 1, which reserved certain rights to the Corporation. These included certain rights of support and the right to build without regard to any interference with light or air in respect of the buildings on the land conveyed. 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".

In order to assess the buildings potentially affected by the 1967 conveyance, the court heard historical evidence as to the ownership of...