Rights to Light Case Law Brough v Salvage Wharf

This article unpacks the Court of Appeal decision in Brough v Salvage Wharf and explains why it matters for developers, owners and advisers working with rights to light. It follows a practical structure aligned to a blog optimisation checklist and uses the keyphrase “Rights to Light Case Law Brough v Salvage Wharf” throughout. The judgment confirms that a carefully worded collaboration agreement will not, by itself, wipe out long-acquired easements of light, and it clarifies when a Light Obstruction Notice (LON) actually works.

The Site, the Parties and the Backdrop

G & S Brough Ltd was a long-standing manufacturer operating at 25–29 Commercial Street, Birmingham, in premises with high-level windows on the north and east elevations. To the rear lay the Birmingham and Worcester Canal; to the east a passage known as Brough’s Passage and an area called Salvage Wharf. The British Waterways Board (BWB) owned the canal-side land and Salvage Wharf. Birmingham Mailbox Ltd (BML) sought to redevelop the former Royal Mail Sorting Office and adjoining land, with associated companies later formed to advance phases of the scheme.

In 1998–99, the developer promoted a mixed-use scheme including “The Mailbox,” a hotel and canal-side residential blocks. Planning permission issued on 18 March 1999. The Brough factory’s north and east windows had enjoyed daylight for decades, and the redevelopment raised obvious rights of light tensions as the canal-side plots came forward.

The 1999 agreement: cooperation, not capitulation

On 23 March 1999 Brough and the first developer entered a written agreement. It did a few key things:

Granted oversailing rights for cranes for three years and until one month’s notice thereafter.

Required demolition of a stilted building and rebuilding of Brough’s rear gable wall for £9,000 (netted off against compensation for early termination of Brough’s leases of adjacent buildings).

Most critically, clause 6 acknowledged Brough’s “subsisting rights to light” and recorded that the developer’s “Project” might adversely affect them; Brough agreed not to enforce those rights to the extent necessary for that Project, but did not abandon the rights.

The “Project” was identified by schedules and plan: broadly the BWB canal strip and Washington Wharf/Foundry (edged blue), linked to the original Mailbox-era development. It did not extend to any later wholesale redevelopment.

The Cube and the Light Obstruction Notice

Years later a successor company promoted a bold second-phase scheme, “The Cube,” spanning the entire strip between Commercial Street and the canal. That would require acquiring and demolishing Brough’s property. In June 2006, the first developer applied to register a Light Obstruction Notice under section 2 of the Rights of Light Act 1959, drawing a notional, unlimited-height wall along the Brough boundaries to simulate an obstruction in law. Registration followed on 12 June 2006. Shortly after, the Council completed a compulsory purchase of Brough’s property and transferred it to the developer. Brough issued proceedings to confirm its rights of light and to cancel the Notice.

At first instance, HHJ Purle QC declared that Brough had an easement of light by prescription, that clause 6 had not extinguished it, that the 1999 “Project” did not include The Cube, and that the LON should be set aside. The developer appealed.

The issues on appeal

The Court of Appeal distilled matters to two core questions:

Did Brough lose its rights of light because, after the 1999 agreement, it only enjoyed light by “consent or agreement” within the proviso to section 3 of the Prescription Act 1832?

Was the developer entitled to register the Light Obstruction Notice under section 2 of the 1959 Act in the circumstances?

Everything else, including some contractual drafting oddities, was ultimately secondary.

Section 3 Prescription Act 1832: When “Consent” kills Prescription

Section 3 of the Prescription Act 1832 makes 20 years’ uninterrupted enjoyment of light “absolute and indefeasible,” unless it appears the enjoyment was “by some consent or agreement expressly made or given for that purpose by deed or writing.” The Act also tells the court to look at the 20 years immediately preceding the action. In Brough’s case, that was 3 May 1987 to 2 May 2007, a period during which light entered the factory windows without interruption. The LON did not alter that because less than a year elapsed between registration and the claim being issued.

The key dispute was whether clause 6 of the 1999 agreement counted as the requisite “consent or agreement” that renders the enjoyment merely permissive, preventing prescriptive rights from maturing. The developer said yes; Brough said no.

The Case Law the Court of Appeal relied on

Mitchell v Cantrill (1887): wording negating an implied grant at the outset is not the same as a forward-looking permission that keeps enjoyment permissive. Mitchell did not trigger the proviso.

Willoughby v Eckstein [1937] 1 Ch 167: express future-facing liberty to rebuild to a height or in a manner that may cut out light does operate as a “consent or agreement,” preventing prescription.

Marlborough (West End) Ltd v Wilks, Head & Eve: similar principle; clauses positively authorising future interference can be “consent.”

RHJ Ltd v FT Patten (Holdings) Ltd [2008] Ch 341: the Court of Appeal endorsed the distinction: provisions that simply negate present implied grants do not block prescription; provisions that positively authorise future interference can render subsequent enjoyment permissive.

Applying those principles to clause 6

The Court of Appeal held that clause 6 did not create a permissive regime for future enjoyment of light. It acknowledged Brough’s subsisting rights and recorded an agreement not to enforce them only to the limited extent necessary to carry out the Project described in the schedules and plan. That temporary forbearance was not a surrender, and it was not a general licence to the developer to extinguish the light. On a fair reading, the clause was cooperation for a defined scheme, not a blanket consent; it did not render all subsequent enjoyment “by consent” within section 3.

Jackson LJ added a commercial reality point: if clause 6 had wiped out valuable rights of light, one would expect meaningful consideration in return. There was none to speak of. The bargain makes sense only as a narrow non-enforcement promise to facilitate the specific 1999 Project. The court therefore rejected the developer’s primary argument: Brough did not lose its rights to light under the 1832 Act.

Carnwath LJ’s concurrence on section 3

Carnwath LJ agreed and explained the doctrinal line: the cases distinguish provisions that deal with rights as at the date of the instrument (which do not engage the section 3 proviso) and those that positively authorise future interference (which can). The 1999 agreement was not a lease or conveyance needing to negate implied easements; it confirmed existing rights and imposed a purpose-limited restriction on enforcement. That stance did not convert Brough’s ongoing daylight into a permissive enjoyment that would defeat prescription.

The Light Obstruction Notice: what it can and cannot do

Sections 2 and 3 of the Rights of Light Act 1959 allow a landowner to register a Light Obstruction Notice to simulate the legal effect of an obstruction of specified dimensions for a period, thereby interrupting the accrual of prescription or, where necessary, teeing up a court determination of entitlement. It is a clever device to avoid building and demolishing “spite walls,” but it still depends on the would-be servient owner having an entitlement to obstruct in the first place.

Why the LON failed

The court gave four decisive reasons:

The notional wall bore no relationship to the 1999 Project set out in the agreement.

By June 2006 the earlier development north and east of Brough was substantially complete and did not involve any such wall.

On a fair construction, Brough had agreed to tolerate some diminution of light from the Project, not total extinguishment by an entirely different obstruction.

The agreement contemplated completion within three years; the LON arrived seven years later, well outside the contemplated project window.

Because the developer could not lawfully erect the “wall” as at June 2006, the LON could not validly simulate that obstruction. The Court of Appeal therefore upheld the order cancelling the Notice.

Was “The Cube” part of the 1999 “Project”?

No. The Cube was a later redevelopment, which would demolish recent works, push beyond the plan attached to the 1999 agreement, and require the compulsory purchase and demolition of Brough’s property. It started well after the three-year horizon implied by the oversailing provisions. On five separate grounds, the court agreed with the judge that The Cube fell outside the Project. That conclusion anchored both the section 3 analysis and the LON outcome.

A footnote on drafting: clause 7.1

The only point the developer won was a tidying-up of clause 7.1’s wording. The court accepted that, read sensibly, the benefit and burden of clauses 4–6 were meant to enure for the developer and successors. That drafting fix did not change the outcome on rights of light or the LON.

Why Rights to Light Case Law Brough v Salvage Wharf matters

For practitioners and project teams, this case is a crisp warning against over-reading cooperation clauses. If you want an adjoining owner to give up prescriptive rights, you need clear, forward-looking language that authorises future interference as a matter of right, and you will probably need to pay for it. If you merely record that rights exist and agree not to enforce them for a defined project, you have not converted the owner’s continuing enjoyment into permissive enjoyment under section 3.

On LONs, timing and entitlement matter. A LON can be powerful, but only if it mirrors an obstruction you are entitled to erect at that time. A notice that postulates a fantasy wall untethered to any real permission or contractual right risks being struck out, as here.

Practical implications for developers and owners

Define the “project” precisely. If you intend to phase or upscale later, the initial agreement should say so. Otherwise, a later, bigger scheme may fall outside the cooperation bargain, as The Cube did.

If you need to preserve development headroom, use explicit language that authorises future building to specified envelopes, heights or massing even if light is reduced. Avoid vague non-enforcement clauses that leave “subsisting rights” intact.

Use LONs correctly. A LON is not magic paper. It must simulate an obstruction you could lawfully build now, or that is otherwise permitted by an extant right. If it overreaches, expect a cancellation order.

Mind the statutory clock. The 20-year look-back under the 1832 Act and the one-year interruption rule require careful calendar management. Mis-timed notices can be irrelevant.

Commerciality counts. Courts look at whether a party plainly gave up valuable rights for consideration. If the economics make no sense, you probably have not drafted an abandonment.

Key passages from the judgment distilled

Clause 6 did not trigger s.3’s proviso. It recognised existing rights and limited enforcement only for the 1999 Project; it was not a prospective consent to extinguish light. Result: the prescriptive easement survived.

The Cube was not part of the 1999 Project on multiple independent grounds, including different land take, demolition of recently completed works, and the compulsory purchase of Brough’s site.

LON: invalid where the putative obstruction is one the developer is not entitled to build at the time of registration.

Carnwath LJ’s analysis reaffirms the doctrinal split: clauses negating implied grants differ from clauses authorising future interference. The 1999 agreement sat in the former category.

Key takeaways

Acknowledgement is not abandonment. Wording that recognises existing rights and contains a purpose-limited non-enforcement promise will not, without more, defeat prescription under section 3 of the 1832 Act.

Be explicit if you mean to authorise interference. To block the accrual of rights by making enjoyment “permissive,” instruments must positively authorise future building that could reduce light, akin to Willoughby and RHJ.

Project definition is strategic. Later, larger schemes are unlikely to be smuggled inside an earlier cooperation agreement unless the agreement says so. The Cube was outside the 1999 Project.

LONs have limits. A Light Obstruction Notice only works if it mirrors an obstruction you could lawfully erect then. If your notice imagines a wall you have no right to build, it invites cancellation.

Timing matters. The court looks at the immediately preceding 20 years for prescription, and less than a year’s “interruption” does not count. Sloppy timing undermines strategy.

Commercial common sense influences construction. If the deal reads like a party gave up valuable rights for nothing, the court is unlikely to find an implied abandonment.

Conclusion - Rights to Light Case Law Brough v Salvage Wharf

Rights to Light Case Law Brough v Salvage Wharf provides a clear, Court of Appeal-level reminder that cooperation agreements must be read in context. Here, clause 6 did not convert Brough’s ongoing daylight into a permissive privilege, so prescriptive rights remained intact. The later attempt to deploy a Light Obstruction Notice based on a notional, unlimited-height wall failed because the developer had no present entitlement to erect that wall, and because the notice bore no proper relationship to the original, tightly defined “Project.” The upshot is practical: draft with precision, align your LONs with real entitlements, and do not assume that a limited non-enforcement promise will neuter hard-won easements. The Court of Appeal dismissed the appeal and upheld cancellation of the Notice.

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Rights to Light Case Law - Resources

What are Rights to Light : A Complete Guide

What is a Light Obstruction Notice?

Bankside Yards Rights to Light Judgement

Landmark Cases that Shaped Rights to Light

Contact : Rights to Light Case Law RHJ v Patten

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