Rights to Light Case Law RHJ v Patten

This article on Rights to Light Case Law RHJ v Patten (2008) explains the Court of Appeal’s decision and why it matters for anyone dealing with rights to light. We set out the facts, the legal question under section 3 of the Prescription Act 1832, the Court’s reasoning, and the practical implications for developers, landlords, tenants, and advisers.

The issue in one line

Could general “landlord may build as it thinks fit” wording in a lease count as a written consent or agreement under section 3 of the Prescription Act 1832, so that a tenant’s long enjoyment of light would not turn into an absolute prescriptive right after 20 years? The Court of Appeal said yes. Appeal dismissed.

Background and facts

The case concerns properties near Strand Street in Liverpool. The claimant’s building, Regian House (shown in the image on this post), dates from the 1970s and fronts Strand Street between Redcross Street and James Street. To its south and east lay land later owned by the defendants.

In 2006 the defendants registered light obstruction notices, but by then light had been enjoyed to many Strand Street windows of Regian House for over 20 years. The question became whether earlier lease wording meant that this enjoyment was permissive/consensual and therefore could not create a prescriptive right under section 3.

Two earlier documents matter:

1978 deed (Council/Standard Life/Secretary of State): it stated the Council’s enjoyment of light to certain Regian House windows was “on sufferance,” even including a peppercorn acknowledgment. That was a textbook example of a section 3 consent blocking any prescriptive accrual.

1980 lease (Council to Possfund, later acquired by the claimant): it contained a reservation allowing the landlord and its lessees “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 also included a “no implied easements” clause. These provisions sat alongside various references in the lease to rights of light and to taking steps to prevent their acquisition.

The claimant argued the lease reservation did not amount to section 3 “consent or agreement” because it did not expressly mention light. The judge (Lewison J) disagreed. The claimant appealed.

The statutory framework

Section 3 Prescription Act 1832 provides that where access and use of light to a building has been actually enjoyed for 20 years without interruption, the right becomes 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. Unlike other easements, light under section 3 does not require enjoyment “as of right.” That unusual feature means a tenant can even acquire a right of light against land owned by the same landlord but occupied separately.

The appeal: what the Court had to decide

The Court had to interpret section 3’s proviso: what counts as a consent or agreement expressly made or given for that purpose? Must a document explicitly refer to “light,” “windows,” or section 3, or can broader language suffice if, properly construed, it makes any enjoyment of light non-absolute because the landlord can build as it wishes?

Key authorities considered

Mitchell v Cantrill (1887): an exception negating grant on the conveyance date does not of itself amount to a section 3 consent affecting future enjoyment. The court separated immediate implications of grant from later acquisition by prescription.

Ruscoe v Grounsell (1903): a stone tablet reserving a right to build within nine inches did not show a section 3 purpose on the limited wording available, but the Court did not lay down any rule that you must mention “light” expressly. Again, the task is construction.

Willoughby v Eckstein [1937]: wording allowing adjacent rebuilding “as approved by the ground landlord” was held sufficient to amount to section 3 agreement, even without an explicit reference to light, because it rendered the lessee’s enjoyment permissive during the term.

Marlborough (West End) Ltd v Wilks Head & Eve (1996, Lightman J): emphasised the same distinction: clauses that only negate implied grants are one thing; clauses that authorise future building free of light constraints can operate as section 3 agreements.

The Court of Appeal’s reasoning

1) No magic words are required

Lloyd LJ held that section 3 does not insist on the document using the word “light.” The phrase “expressly made or given for that purpose” is satisfied if, on normal principles of construction, the clause in substance renders the enjoyment of light permissive or defeasible rather than absolute. In short: if the document clearly lets the adjoining owner interfere with light in future, the enjoyment cannot mature into an absolute right by mere passage of time.

2) Construction, not formalism

The Court stressed ordinary contract-construction principles. Read the whole lease in context. Here, the landlord’s broad reservation to build or alter “as they may think fit at any time and from time to time” on adjoining land was not simply about avoiding implied easements on day one; it was prospective and operational throughout the term. In a 94-year lease, such a reservation necessarily contemplated future building that might interfere with light. To say it covered every conceivable constraint except light would be perverse given that the parties obviously understood rights of light and even cross-referenced the 1978 deed that used an explicit section 3 model.

3) The Mitchell v Cantrill distinction remains

Clauses which only negate an immediate implied grant are not section 3 consents. But combine that with a forward-looking right to build as the landlord thinks fit, and you have an agreement which makes any interim enjoyment non-absolute. That brings the clause within section 3. The Court aligned this with Willoughby v Eckstein rather than with a narrow reading of Mitchell.

4) Burden and drafting points

If something turns on proof, the party relying on the exception must show the consent or agreement in writing. In practice that will be the landlord or developer pointing to lease or deed language. Contra proferentem has a limited role ('interpretation against the draftsman' if your Latin is a little rusty). You only use it where genuine ambiguity remains after applying ordinary construction. Here, the Court found the intention clear without needing that canon.

Judgement - Rights to Light Case Law RHJ v Patten

The Court of Appeal dismissed RHJ’s appeal. The lease reservation sufficed as a section 3 consent or agreement. That meant RHJ could not rely on 20 years’ enjoyment of light to turn the Strand Street windows into an absolute, indefeasible prescriptive right against the Patten interests.

Why RHJ v Patten matters for practice

Developers and Landowners

Future-proofing by reservation: Broad, forward-looking reservations to “build/rebuild/alter as [you] think fit” on adjoining retained land can be enough to prevent prescriptive rights of light accruing to the demised premises during the lease term, even without naming “light.” That can preserve development flexibility across an estate without executing bespoke light-permission deeds for each boundary.

Not just day-one grant: You need more than a “no implied easements” clause. You need a clause that authorises future works that may interfere with light. If the clause truly looks ahead and empowers you to build notwithstanding effects on the let building’s light, it can operate as section 3 consent.

Evidence and consistency: Courts will read the document in context. If elsewhere the lease shows the parties knew about light and took steps to manage it, a wide building reservation is less likely to be read as everything-but-light. The more coherent your drafting set, the better.

For tenants and occupiers

Don’t assume long enjoyment equals a right: In rights to light, 20 years’ actual enjoyment usually does the trick, but not if your lease includes a section 3-effective reservation/consent. Read your lease before relying on prescription.

Negotiation leverage: If the landlord wants a very broad right to build, tenants may push for explicit protections, compensation mechanisms, or carve-outs identifying “no interference with specified apertures.” The absence of “light” language does not necessarily save you.

For surveyors and legal advisers

Diagnose document risk early: Before modelling or negotiating, review titles, headleases, underleases, side letters and estate documents for any Willoughby/RHJ-style reservations. They can neutralise prescriptive claims and change settlement dynamics.

Strategy with LONs: Light Obstruction Notices still have a role, but if section 3 consent already neutralises prescription across the relevant period, a LON may be belt-and-braces rather than decisive. In RHJ, LONs were later in time and not determinative once the lease construction point was resolved.

Drafting lessons

Use forward-looking building rights. Language giving the landlord or estate owner the full and free right to build, rebuild or alter on adjoining land at any time helps evidence that light enjoyment is non-absolute.

Consider whether to name “light.” RHJ confirms you don’t have to, but an explicit reference can avoid argument. The 1978 deed showed the “gold-plated” model that leaves nothing to inference.

Coordinate clauses. A “no implied easements” clause handles the day-one position; a separate reservation handles future development. Together they track the Mitchell/Willoughby distinction the Court endorsed.

Think estate-wide. Where multiple plots are in play, consistent reservations across leases avoid patchwork constraints emerging via prescription. The Court read the RHJ lease against the parties’ evident awareness of light issues.

How RHJ fits with the older cases

Mitchell v Cantrill: Still good law on the difference between clauses that only negate implied grant and those that speak to future enjoyment. RHJ doesn’t replace Mitchell; it shows where Mitchell stops and Willoughby begins.

Ruscoe v Grounsell: Confirms construction is king; absence of the word “light” is not fatal if purpose is clear, but if wording is too vague (as a bare boundary tablet was) it won’t do. RHJ builds on that approach.

Willoughby v Eckstein: RHJ aligns with Willoughby. The effect of properly drafted reservations is that the tenant’s enjoyment is permissive for section 3 purposes throughout the term.

Worked example: what the RHJ lease did

The lease both excluded implied rights and reserved a broad future right to build on adjoining land “as [the landlord] may think fit” at any time. Reading that in a 94-year term, the Court said the parties cannot have intended light to be an untouchable, absolute future constraint on the landlord. The clause therefore operated as a section 3 agreement that kept the tenant’s light enjoyment non-absolute, preventing prescriptive accrual. Appeal dismissed.

Key takeaways - Rights to Light Case Law RHJ v Patten

Construction governs. Courts read the whole document to see whether it expressly achieves the section 3 purpose in substance, not whether it uses talismanic words.

No mandatory “light” label. You don’t have to name “light” for section 3, provided the clause clearly authorises future building that can interfere with light so that enjoyment is not absolute.

Differentiate day-one and future. Clauses negating implied grants handle the grant date. Separate reservations that authorise future works do the section 3 heavy lifting.

Estate drafting matters. Consistent reservations across leases can stop prescriptive light rights from developing across your estate.

Tenants beware. Long enjoyment is not enough if the lease makes your enjoyment permissive/defeasible via an effective reservation. Check the documents before asserting rights.

Practical implications for projects

For developers/landlords: Audit existing leases on retained land. If they include RHJ-style reservations, you may already have protection against prescriptive claims from your own tenants’ windows. If not, consider updating precedent suites for new lettings.

For occupiers/tenants: When negotiating leases in urban locations, scrutinise building reservations and seek bespoke protections where day-lighting matters operationally. Consider alternatives: compensation regimes, specified protected apertures, or design-stage coordination.

For advisers: Treat section 3 as a document-first analysis. Don’t jump straight to 20-year timelines and Waldram grids; check titles and lease suites for section 3-effective wording early.

Conclusion - Rights to Light Case Law RHJ v Patten

Rights to Light Case Law RHJ v Patten confirms that rights turn on what the paper says, not on whether it namechecks “light.” If, read sensibly, the lease or deed expressly preserves the adjoining owner’s freedom to build in future even if doing so would interfere with light, then the tenant’s enjoyment during the term is not absolute, and section 3 does not convert it into an indefeasible right after 20 years. For occupiers, it means reading those reservations with care before staking a prescriptive claim. For surveyors and lawyers, it means starting every rights to light dispute with a documents audit rather than a contour drawing.

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Rights to Light Case Law - Resources

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Contact : Rights to Light Case Law RHJ v Patten

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