JUDGMENT
BUCKLEY L.J.
I have asked Goff L.J. to deliver the first judgment in this case.
GOFF L.J.
This is an appeal from an order of Blackett-Ord V.-C. dated October 6, 1977, whereby he refused relief by way of prohibitive and mandatory injunctions in respect of the alleged obstruction of light to the plaintiffs' greenhouse and dismissed the action.
The plaintiffs have occupied no. 13, Woodtop Avenue, Rochdale, since September 1954, first as tenants, and since December 1974 as owners in fee simple. As the photographs show, it is a pleasant detached house with a spacious garden.
The defendants are owners in fee simple of a comparable house and property to the south, no. 15, Woodtop Avenue, which they purchased in 1966 and which they have occupied ever since. The level of the plaintiffs' garden is some 26 or 28 inches lower than the defendants' and the defendants' land is supported by a low retaining wall commencing a little to the east of the greenhouse, with a low brick-built pillar.
The plaintiffs' greenhouse is of the following agreed dimensions. It is 16 feet long, 9 feet 6 inches wide, 6 feet 9 inches to the eaves, and then it has a pitched roof with the ridge 3 feet above that. It is built right up against the retaining wall. In fact that wall forms one of its walls. Two of the other three are built up to, or perhaps bonded into, the retaining wall to form a level support, and the glazed structure rises directly above these four walls. So on the south side the frame of the glass is actually resting upon, or secured to, the retaining wall itself. That wall belongs wholly to the plaintiffs; it is not a party wall.
It is clear that the greenhouse was built soon after the erection of no. 13 some time between 1939 and 1941, and user of it for the ordinary purposes of a greenhouse for at least 20 years next before action brought was duly proved. The plaintiffs complain of an infringement of a prescriptive right to light to their greenhouse, founding their claim on section 3 of the Prescription Act 1832, which is in these terms:
"... 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."
There was in this case no such consent.
Prior to 1969 there were certain buildings or structures on the defendants' land, in addition of course to their house. There was an air raid shelter a little to the west of the greenhouse, and a shed to the east of the greenhouse. After the war the air raid shelter was put to use as a coal bunker. Mr. Hubert Allen, one of the plaintiffs, gave evidence at the trial. He was cross-examined, suggesting that these buildings or structures had obstructed the light to the greenhouse, but there was an open space of some 20 feet between the air raid shelter and the garden shed, and it became clear that those structures did not cause any obstruction and that line was not pursued.
In 1969 the defendants caused the air raid shelter, or coal bunker, and the garden shed to be removed. For a time they had a car port to the west of their garage - that is, farther away from the greenhouse - and that did not cause any obstruction. At this time they also had a wall built across their land from the pillar to the house, and laid out the part of their property to the east of that wall as a patio, leaving an open tarmac space in front of the greenhouse. So there was still no obstruction. Indeed, there was no trouble of any kind until May 1974, when the defendants applied for planning permission to erect a two-storey extension at the rear of no. 15. Notice of that application was given to the plaintiffs by the borough planning officer. Mr. Allen, the first plaintiff, inspected the plans and formed the view that such an extension would interfere with the access of light to the greenhouse and to his sitting room. He, therefore, instructed solicitors, who wrote to the first defendant on August 7, 1974, saying:
"Mr. Allen has inspected the deposited plans and finds that if the proposed extension is carried out it will cause a serious diminution of the access of light to our clients' greenhouse and some diminution of light to his sitting-room. The buildings on our clients' land have been erected long enough to have acquired a right to light and, therefore, we trust that you will not proceed with the extension in such a way as to infringe the rights of our clients. Mr. Allen has felt it necessary to lodge a formal objection to your application.
"We trust that it will not be necessary for our clients to take any further steps to enforce their rights and we shall be glad to hear from
you that the matter can be amicably disposed of."
There was no reply to that letter, but shortly afterwards the defendants started to park their caravan immediately alongside the greenhouse. Prior to that it had been parked to the west of the old car port; that is, between the car port and the road, where, of course, it was not an obstruction to the greenhouse.
On August 28, 1974, the defendants put in posts, or supports, for a fence very close to the greenhouse. That fence, which is close-boarded and creosoted, was finished by September 1 from a point at the east end of the greenhouse nearly, but not quite, up to the west end. The fence was built to a height which, having regard to the difference in level of the two properties, brought it about 18 inches above the eaves.
The plaintiffs' solicitors wrote a further letter on September 6, 1974, in the following terms:
"Further to our letter of August 7, 1974, we are now informed that you have erected a boarded fence on the boundary of your property adjacent to that of our clients' the top of which in part by reason of the difference of levels extends 9 feet above the level upon which our clients' greenhouse stands and is at a distance of approximately 5 inches from it.
"This fence naturally interferes very seriously indeed with the access of light to the greenhouse.
"We have already pointed out to you that our client has acquired a right to light by prescription in view of the fact that the greenhouse has occupied its present position for a period considerably in excess of 20 years.
"Unless therefore the fence in its present form is removed our client will institute proceedings for an order to enforce its removal without delay.
"We must therefore request you to advise us within the next seven days that this will be done."
On receipt of that letter the fence, so far as it was immediately opposite the greenhouse, was dismantled but the caravan was then again placed alongside the greenhouse. Between October 1974 and February 5, 1975, the fence was restored and extended right to the west end of the greenhouse and approximately 5 1/2 feet beyond. When first restored it came only up to eave level, but it was later raised to 18 inches above, when the plaintiffs' gardener placed boxes of seeds and young plants at about eave level to get as near to the light as possible to prevent them from getting drawn up.
The position, therefore, when the action commenced was, and it still is, that there is this fence from the east end of the greenhouse to a point some 5 feet 6 inches beyond it on the west, only about 6 inches away from the glass, with the caravan parked close up to the fence.
It was clear from Mr. Allen's evidence that the greenhouse had been used at all material times in the ordinary normal way in which such an appurtenance would be used in a private garden. He was asked:
"What use - since 1954 when you went into occupation of the house - have you made of the greenhouse?" - and he answered - "I have invariably grown tomatoes during the summer. We have raised our own plants from seed."
Then the Vice-Chancellor asked:
"Do you mean tomato plants?" - and Mr. Allen answered - "Tomato plants. Sometimes we have bought tomato plants; sometimes we have raised them from seed. Then we have geraniums, and we raise cuttings and so forth. Indeed, we are accustomed also to grow pot plants for the purpose not only of being able to see them in the greenhouse, but also when required to be able to take them inside the house. My wife is fond of plants and flowers inside the house, and I am myself for that matter. Of course, the greenhouse has served a useful purpose in that sense."
Then counsel went on:
"You have mentioned so far tomatoes, geraniums and house plants?
(A) Yes.
(Q) Do you raise any plants other than tomatoes from seeds?
(A) Oh, yes, a whole range of biannual type bedding plants that one raises from seed in the spring.
(Q) What sort of plants?
(A) Stocks, antirrhinums, various kinds of marigold, zinnias, violets, pansy - the red ones that are rather tender; that sort of plant, you see."
He also gave evidence of the disastrous effect of the obstructions, which is well illustrated by a number of photographs, and when asked: "Some things do not like too much light?" he said:
"I can put ferns there, but it is no use trying to grow flowers there, so, in effect, I am in difficulty now cultivating flowers in pots in that greenhouse, which I was able to do earlier, prior to the existence of the fence. It used to be nice to walk into the greenhouse and see flowers, and also it used to supply the house with flowering plants. (Q) What about seedlings? (A) We are able to grow some, but we are still somewhat deprived, because we cannot; we used to erect a temporary bench at the southerly side to put the seed trays on before they germinated, and just for a short time after germination. There is no point in that now. Virtually speaking, the southern half of my greenhouse is useless for what were previously its normal functions. In respect of my seedlings, when I grow them I have to bring them towards the centre of the greenhouse more than would have been necessary. The result is that there is a greater depth between the seed pans and the glazing, and there is a greater tendency for them to be drawn, and be less sturdy plants."
and then Blackett-Ord V.-C. summed up his evidence by saying: "What it boils down to is that you say that half of your greenhouse is really very little use?" to which Mr. Allen replied: "Yes."
Mr. Allen was cross-examined, but the cross-examination did not shake him. and Blackett-Ord V.-C. found as follows:
"... the result, of course, is totally to exclude all sunlight from the south except to a small extent when the sun is high, and roughly half of the greenhouse gets no sun at all. ... I accept the evidence of Mr. Allen, which was very fairly given, that the use of the greenhouse for the purposes for which he was expected to use it. namely growing tomatoes and pot plants, has been seriously interfered with. ... there is, of course, plenty of light left in the greenhouse for actually carrying out any operations. If you want to pick the tomatoes, or pot some plants, or indeed if you want to get away from the family and read a book, there is plenty of light for those purposes in the greenhouse."
Blackett-Ord V.-C. further held:
"Here, of course, the structure was obviously a greenhouse, but there is no evidence that the owners of the servient tenement, the successive owners, knew the precise use which was being made of it. Some plants require more light than others."
Earlier he said: "There is ample light left in the greenhouse, I find, for everything except the special purpose of growing certain plants." It is to be observed that he did not say that there was anything special about the plants; nor indeed was there. So the ratio decidendi of the Vice-Chancellor's decision is that a greenhouse is a building which by its nature requires special light and there is no nuisance, although that purpose be defeated, so long as there is enough light to work in the place, though the work be rendered useless or seriously less effective, so long as there is sufficient light to use it as if it were a living room in a house, and not a greenhouse - at all events, unless the servient owners have some particularly detailed knowledge of the user, which the Vice-Chancellor described as "precise."
Such being the facts, the first question which arises is whether a greenhouse is a "building" within the meaning of section 3 of the Prescription Act 1832, and Clifford v. Holt [1899] 1 Ch. 698 is an express decision that it is. The defendants reserved the right to argue in this court that it was not, but they have not done so and I proceed on the basis that it is. Also, a greenhouse is not to be regarded simply as a garden under glass, but as a building with apertures, namely, the glass roof and sides: see Gale, Easements, 14th ed. (1972), p. 239.
Accordingly, the plaintiffs submit that they had, by the time they commenced their action, acquired a right of light to the greenhouse, and they say "the law will protect the dominant owner in the enjoyment of so much light as, according to the ordinary notions of mankind, he reasonably requires for all ordinary purposes for which the building is adapted," and further that the evidence shows, as it does, that the user throughout the 20 years has been the normal and ordinary use of a greenhouse in a private garden. Therefore, the plaintiffs submit, they are entitled to such light as is reasonably required for the continuation of that use, as being light required for the ordinary use of that type of building. Alternatively, they say that as they have in fact so used the greenhouse for the full period of 20 years, they are entitled to such light as is required for the normal use of the greenhouse, even though that use should be regarded as one which calls for a specially high degree of light.
The defendants, on the other hand, say that the plaintiffs are, at the least, claiming a specially high degree of light, which they cannot have because, it is submitted, one can only prescribe for light which is required for ordinary residence, or ordinary business, in the tenement in question; and they say that ordinary business means a business requiring an ordinary amount of light, not necessarily to be measured by the business in fact being carried on there or the business for which the tenement is adapted.
But the defendants' objection goes much deeper than that, for they say that in any event one can only prescribe a right to light, whether ordinary or special in degree, for purposes of illumination, not a right to the direct rays of the sun, or to heat, or to other beneficial properties from the sun's rays. In effect they submit that the plaintiffs are out of court because of the finding, which I have read, as to the amount of light remaining in the greenhouse. They argue that the plaintiffs are not claiming light for human purposes or activities, but for its beneficial effect upon the plants or, looking at it another way, for the purpose of carrying out some chemical process. By analogy with a factory or workshop they submit that there is no actionable wrong if there be enough light to enable the workman to see what he is doing, even if he is carrying out some process which itself requires light and there is insufficient to make it work.
The starting point for the resolution of these contending arguments must be in Colls v. Home and Colonial Stores Ltd . [1904] A.C. 179, which does, as it seems to me, establish the basic principle that the measure of the light to which right is acquired, of which it has to be seen whether there is such diminution as to cause a nuisance, is the light required for the beneficial use of the building for any ordinary purpose for which it is adapted.
I think this emerges clearly from the speech of Lord Davey, with which Lord Robertson agreed, and from that of Lord Lindley. Lord Davey, at p. 198, approved a passage from the judgment of James L.J. in Kelk v. Pearson (1871) L.R. 6 Ch.App. 809, 811, which is in these terms:
"... I am of opinion that the statute has in no degree whatever altered the pre-existing law as to the nature and extent of this right. The nature and extent of the right before that statute was to have that amount of light through the windows of a house which was sufficient, according to the ordinary notions of mankind, for the comfortable use and enjoyment of that house as a dwelling house, if it were dwelling house," - and now come the important words -
"or for the beneficial use and occupation of the house, if it were a warehouse, a shop, or other place of business. That was the extent of the easement - a right to prevent your neighbour from building up on his land so as to obstruct the access of sufficient light and air, to such an extent as to render the house substantially less comfortable and enjoyable."
Lord Lindley approved a similar passage in City of London Brewery Co. v. Tennant (1873) L.R. 9 Ch.App. 212, 216-217, and said, at p. 208:
"That doctrine, as stated in City of London Brewery Co. v. Tennant, is that generally speaking an owner of ancient lights is entitled to sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment of his house as a dwelling house, if it is a dwelling house, or for the beneficial use and occupation of the house if it is a warehouse, a shop, or other place of business. The expressions 'the ordinary notions of mankind,' 'comfortable use and enjoyment,' and 'beneficial use and occupation' introduce elements of uncertainty; but similar uncertainty has always existed and exists still in all cases of nuisance, and in this country an obstruction of light has commonly been regarded as a nuisance, although the right to light has been regarded as a peculiar kind of easement."
Those passages, do, in my judgment, tie the measure of the light to the nature of the building and the purposes for which it is normally adapted. Mr. Baker relied considerably on a dictum of Bray J. in Ambler v. Gordon [1905] 1 K.B. 417 where he said, at p. 422:
"I think that the word 'ordinary' is used solely with reference to light, and an ordinary user or ordinary business means a user or business which in fact requires only an ordinary amount of light,"
and he submits that there is only one standard which does not vary with the type of building. That case, of course, is not binding upon us, and I confess for my own part that I do not wholly understand the conception of "an ordinary amount of light" in the abstract. It seems that what is ordinary must depend upon the nature of the building and to what it is ordinarily adapted. If, therefore, the building be, as it is in this case, a greenhouse, the normal use of which requires a high degree of light, then it seems to me that that degree is ordinary light. Therefore, subject to the defendants' argument, to which I shall refer as the overriding argument, and which I shall consider later in this judgment, that the light of which the plaintiffs have been deprived is not, on the findings, required for illumination but for the process of raising and growing plants, I would hold that in the case of a greenhouse, light required for its normal use is ordinary and is, therefore, acquired under the Act by 20 years' enjoyment.
But lest I be wrong on that, I turn to consider, still subject to the overriding argument, whether, assuming it is a specially high degree of light, the right to it is acquired by 20 years' user to the knowledge of the servient owners.
Blackett Ord V.-C. said that Ambler v. Gordon [1905] 1 K.B. 417 was "a clear decision that no claim of right by prescription for an extraordinary amount of light lies when the servient owner is unaware of the use being made of the dominant tenement."
That I accept and apply, but the Vice-Chancellor went on, as I have already read, to say that there was no evidence that the owners of the servient tenement knew the precise use which was being made of it.
In my judgment, however, with all respect, that was an error. It is an irresistible inference from the photographs that the defendants and their predecessors, owners successively of no. 15, must have been fully aware at all times of the way in which the greenhouse was being used. As Buckley L.J. said in argument, the contrary is inconceivable. There is no suggestion in this case that the greenhouse is now, or ever has been, used for any exotic purposes.
The problem, therefore, is whether a right to a specially high degree of light can be acquired by known enjoyment of that specially high degree for the full period of 20 years. Strangely enough, there is no decision on this question, although there are conflicting dicta.
The first is that of Malins V.-C. in Lanfranchi v. Mackenzie (1867) L.R. 4 Eq. 421, where he said, at p. 430:
"I intend to decide this case on broad general principles, and my view of the law is this, that if there be a particular user, and the quantity of light claimed for that is such as would not belong to the ordinary occupations of life, a person who claims that extraordinary quantity of light cannot establish his right to it unless he can show that he has been in the enjoyment of it for 20 years. If a man cannot establish a right within 20 years to an ordinary quantity of light, how can he establish in a less period the right to an extraordinary quantity? All he can establish is the right to the quantity of light he would be entitled to for ordinary purposes. If he has been in the enjoyment of an extraordinary user for 20 years, that would establish the right against all persons who had reasonable knowledge of it."
Lord Davey, however, threw some doubt upon that in Colls' case [1904] A.C. 179, where he said, at pp. 203-204:
"If the plaintiffs had intended to claim and rely on a special easement of that description, it was for them to state their claim and prove the facts to support it. It is unnecessary to say, therefore, whether such a claim would be good in law. Malins V.-C. thought it could be sustained if the special user was had with the knowledge of the owner of the servient tenement. I will only say that I see some difficulties in the way, and reserve my opinion."
In Ambler v. Gordon [1905] 1 K.B. 417 Bray J. went further and specifically disagreed with Malins V.-C., saying, at p. 424:
"I am, however, prepared to go further, and to hold that even 20 years' enjoyment to the knowledge of the servient tenement will not give a larger right."
With all respect to Lord Davey, who after all merely reserved his opinion, and to Bray J., I would adopt Malins V.-C.'s dictum. It is clear that a right to a greater degree of light than such as is normally obtained by prescription could be the subject of a valid grant, and in my judgment, therefore, it is capable of being acquired by prescription. That being so, provided it is enjoyed for the full period of 20 years to the knowledge of the servient owners, I fail to see any ground upon which it should be held not to have been acquired by prescription.
Of course, where the operation which needs special light is carried on indoors it may be very difficult in fact to prove sufficiently precise knowledge, but here the user was completely obvious. Blackett-Ord V.-C. decided this point against the plaintiffs on the ground that there was no evidence that the owners of the servient tenement knew the precise use which was being made of the greenhouse, but with all respect to him, in my judgment, the evidence was amply sufficient to prove knowledge, and sufficient knowledge.
In my judgment, therefore, the crux of this case at the end of the day is the overriding argument, which I must now consider.
The defendants argue on this as follows. (1) In Colls' case [1904] A.C. 179 the House of Lords was seeking to limit, or restrict, the extent of the right to light, so as to prevent undue restrictions on the development or improvement of surrounding land or buildings, and the court should be very chary of any extension of the right. (2) Although the standards prescribed by the speeches in Colls' case are expressed in terms susceptible of a wider interpretation, in their context they must be taken as referring to illumination only. (3) In all cases, at least since Colls, the right to light has been tested or measured in terms of illumination only. They refer, for example, to Mr. Waldram's calculations and the theory of the "grumble point:" see Charles Semon & Co. Ltd. v. Bradford Corporation [1922] 2 Ch. 737, 746-747, and to Hortons' Estate Ltd. v. James Beattie Ltd. [1927] 1 Ch. 75, where the question was whether the extent of the right to light should vary according to locality, and Russell J. said, at p. 78: "The human eye requires as much light for comfortable reading and sewing in Darlington Street, Wolverhampton, as in Mayfair." Mr. Maddocks on the defendants' behalf, in his supporting argument, referred also to Warren v. Brown [1900] 2 Q.B. 722, 725, where the test was stated to be "all ordinary purposes of inhabitancy or business," and to the test applied by the Court of Appeal in Ough v. King [1967] 1 W.L.R. 1547, ordinary notions of contemporary mankind. These, however, I think, are at best neutral and possibly tell the other way, since a greenhouse is perfectly normal and ordinary in private gardens. So far as the last case is concerned, however, Mr. Maddocks relied upon the fact that this court approved of the county court judge having had a view, which again, he suggests, points to illumination as the test, though that I take leave to doubt.
(4) In no case since Colls' [1904] A.C. 179 has the right to light been established, save on the basis of what is required for illumination. That is true, but in Lazarus v. Artistic Photographic Co. [1897] 2 Ch. 214 Kekewich J. expressly extended the right to light for photography, which is not simply illumination but extra light required to effect a chemical process. That case was wrongly decided, because he held that such a right could be acquired though the special light required for the purpose had been enjoyed for part only of the 20 years, but nevertheless it has, I think, some value as a negation of the defendants' argument. Moreover, in Colls' case itself [1904] A.C. 179, 203, Lord Davey instanced a photographic studio, True, he was there saying that one could not increase the burden on the servient tenement by changing over to such user within the 20 years, but at least he clearly envisaged a claim to light for such a purpose as a possibility.
(5) A distinction must be drawn between the heat and other properties of the sun and the light which emanates from it, and, the defendants say, having regard to the judge's findings, the only complaint that the plaintiffs can have is loss of heat or radiant properties, and they postulate the example of a swimming pool, part of which is fortuitously warmed by sunlight coming through a south window. They say, and I have no doubt rightly, that the owners could have no cause of action against one who, whilst leaving fully adequate light for the complete enjoyment of the swimming pool, so shaded the sun as to deprive it of this chance warmth. That, I think, is a very different case from the present. (6) In reality or in substance the injury here is not deprivation of light, but of heat or other energising properties of the sun and it is the plant life and not the human beings who are deprived.
I do not think this last point is in any case wholly accurate, as plants need light as well as heat, but it seems to me, with all respect to Blackett-Ord V.-C. and to counsel, to lead to an absurd conclusion. It cannot, I think, be right to say that there is no nuisance because one can see to go in and out of a greenhouse and to pot plants which will not flourish, and to pick fruit which cannot properly be developed and ripened, still less because one can see to read a book.
The plaintiffs answer all this simply by submitting that they are entitled, by virtue of their prescriptive right to light, to all the benefits of the light, including the rays of the sun. Warmth, they say, is an inseparable product of daylight, and they stress the absurd conclusion which I have already mentioned, to which the contrary argument inevitably leads. This reply commends itself to me, and I adopt it.
So the overriding argument, in my judgment, does not prevail, and for the reasons I have already given the plaintiffs are right. both on their primary and their alternative case, and I would allow this appeal.
Subject to any observations of my brethren or of counsel, I would grant an injunction on the following lines: restraining the defendants by themselves. their servants, contractors, workmen or otherwise from continuing to keep the caravan and fence in such a position on the defendants' property as to obstruct or diminish the access of light to the southerly and south-easterly walls and glass roof of the said greenhouse to such an extent as to cause a nuisance. Secondly, a mandatory order that the defendants do forthwith remove the said caravan and fence from such a position as so to obstruct or diminish the access of light to the said southerly and south-easterly glass walls and glass roof of the said greenhouse.
I desire, however, to add one important safeguarding proviso to this judgment. On other facts, particularly where one has solar heating (although that may not arise for some years) it may be possible and right to separate the heat, or some other property of the sun, from its light, and in such a case a different result might be reached. I leave that entirely open for decision when it arises. My judgment in this case is based upon the fact that this was a perfectly ordinary greenhouse, being used in a perfectly normal and ordinary manner, which user has, by the defendants' acts, been rendered substantially less beneficial than it was throughout the period of upwards of 20 years before action brought, and if necessary upon the fact that all this was known to the defendants and their predecessors for the whole of the relevant time.
ORR L.J.
I agree that this appeal should be allowed for the reasons given by Goff L.J., and I, too, would reserve for a case in which they require a decision the problems which may arise in relation to solar heating.
BUCKLEY L.J.
I entirely agree with the judgment of Goff L.J. I only add some observations of my own, first, because we are differing from Blackett-Ord V.-C. and, secondly, because this is a point which has not hitherto been directly covered by authority and it is one which may have a fairly wide application, for the number of domestic greenhouses in this country must be very large.
It is unnecessary for me to recapitulate the facts or restate the nature of the argument which has been presented to us; those matters have already been fully covered by Goff L.J.
The authority which must now be regarded as the leading case on this topic is undoubtedly the decision of the House of Lords in Colls v. Home and Colonial Stores Ltd [1904] A.C. 179, from which I think the following formulation of the principle can be distilled: the amount of light to which a dominant owner is entitled under a prescriptive claim is sufficient light, according to ordinary notions, for the comfortable or beneficial use of the building in question, again according to ordinary notions, for such purposes as would constitute normal uses of a building of its particular character. If the building be a dwelling house, the measure must be related to reasonable standards of comfort as a dwelling house. If it be a warehouse, a shop or a factory. the measure must be related to reasonable standards of comfort or beneficial use (for comfort may not be the most appropriate test in the case of such a building) as a warehouse, a shop or a factory as the case may be. These may very probably differ from the standards which would apply to a dwelling house. If the building be a greenhouse, the measure must, in my opinion, be related to its reasonably satisfactory use as a greenhouse.
In the present case the plaintiffs have not used their greenhouse otherwise than for such purposes as a domestic greenhouse would normally be used - purposes for which domestic greenhouses have been used for many generations. Accordingly, no question arises of their claiming an amount of light which would be extraordinary for a greenhouse. It is true that the satisfactory use of a greenhouse may require a freer access of light than a room in a dwelling house, just as the comfortable use of a dwelling house may require more light than the satisfactory use of a warehouse; but this, in my view, is of no significance. It would, in my judgment, and with deference to those who have suggested otherwise, be ridiculous to say that a greenhouse had enough light because a man could read a newspaper there with reasonable comfort. A north light may be very good for an artist's studio and may do very well for a sitting room in a dwelling house, but may be quite inadequate for a greenhouse.
Counsel for the defendants have developed an interesting and ingenious argument to the effect that all reported cases on easements of light relate exclusively to the use of light for purposes of illumination, whereas, as they say, in a greenhouse light is used not merely for illumination but for its chemical effects upon the plants in the greenhouse. It is true that we have been referred to only one case relating to a greenhouse, Clifford v. Holt [1899] 1 Ch. 698, in which Kekewich J. held that a greenhouse was a building for the purposes of the Prescription Act 1832. It had been in existence for more than 25 years. It was not suggested in that case that the use of the light in a greenhouse had any special characteristic which might exclude it from ordinary considerations applying to easements of light, although it was argued that a greenhouse was not ejusdem generis with a dwelling house or workshop. Of course, where illumination has been the sole or predominant significance of the light, it is natural that no reference has been made to other possible aspects of its enjoyment. It seems to me that in the case of a dwelling-house it might well be argued (I do not say with what degree of success, for this must depend upon expert evidence) that adequate light was important not only for illumination but also for health and hygiene. I feel unable to accept this argument of the defendants' counsel. In my judgment, it involves an unjustified and undesirable qualification of the principle which, as I have indicated, has in my view been established by the authority of Colls v. Home and Colonial Stores Ltd. [1904] A.C. 179. Prescription, in accordance with that principle, is not dependant upon actual use but upon enjoyment for the prescriptive period of the ability to enjoy the measure of light indicated by the formula. So it is not dependant upon the servient owner's knowing what actual use the dominant owner is making of the building. This is not inconsistent with the dominant owner's obtaining by prescription a right to an extraordinary amount of light requisite for a particular use of the dominant tenement if the servient owner has throughout the prescriptive period been aware that the dominant owner has throughout that period been using the dominant tenement in that way, provided, no doubt, that the enjoyment of light for that particular use has not been permissive.
If, contrary to my primary view, a right to the access of such light to a domestic greenhouse as is necessary for successful cultivation of the kinds of plants normally cultivated in such a greenhouse is not capable of being acquired by prescription as a right to an ordinary amount of light, can it be acquired as an extraordinary amount of light? I feel no doubt that such a right could be acquired by express grant. Why, I ask, should such a right not be acquired by a presumed grant or by prescription? There appears to be no decisive authority on the point.
In Lanfranchi v. Mackenzie, L.R. 4 Eq. 421, 430 Malins V.-C. expressed the view, obiter, that 20 years' use for a special purpose would establish a claim to an extraordinary amount of light against all who had knowledge of such use. In Colls v. Home and Colonial Stores Ltd. [1904] A.C. 179, 202, Lord Davey approved the decision in Lanfranchi v. Mackenzie, but, at p. 204, reserved his opinion on prescription to an extraordinary amount of light. Lord Lindley said, at p. 209:
"The decision in Kelk v. Pearson, L.R. 6 Ch.App. 809 has a far-reaching effect. If there is no absolute right to all the light which comes to a given window, no action will lie for an obstruction to that light unless the obstruction amounts to a nuisance. If there is no right of action, a fortiori there is no right to an injunction to prevent a permanent diminution of light unless it amounts to a nuisance. But, in considering what is an actionable nuisance, regard is had, not to special circumstances which cause something to be an annoyance to a particular person, but to the habits and requirements of ordinary people, and it is by no means to be taken for granted that a person who wants an extraordinary amount of light for a particular business can maintain an action for a diminution of light if only his special requirements are interfered with."
That seems to me to be a carefully guarded statement on the part of Lord Lindley.
After Lanfranchi but before Colls, Kekewich J. had held in Lazarus v. Artistic Photographic Co. [1897] 2 Ch. 214 that a photographer was entitled to protection of an extraordinary amount of light for his business, although he had not enjoyed it for as much as 20 years. That decision could not now, I think, be upheld, because of lack of enjoyment of the extraordinary amount of light for a sufficient period. In Warren v. Brown [1900] 2 Q.B. 722 Wright J. had to consider a case in which a building had been used for a purpose requiring an extraordinary amount of light for less than the statutory prescriptive period. He held that the plaintiff was not entitled to protection of an extraordinary amount of light in those circumstances.
In Ambler v. Gordon [1905] 1 K.B. 417, decided after the decision of the House of Lords in Colls' case [1904] A.C. 179, Bray J. had to deal with office premises which seem to have been suitable for any normal kind of office use, but had in fact been used in part by an architect as a drawing office and in part by a cloth merchant for examining and matching cloth, both uses which required exceptionally good light. There was no evidence that the occupiers of the servient tenements were aware of these special uses. Bray J. said, at pp. 421-422:
"First, what is meant by the expressions which are to be found in this special case and in the judgments in Colls' case - 'ordinary user,' or 'ordinary business,' or 'ordinary purposes'? I think that the word 'ordinary' is used solely with reference to light, and an ordinary user or ordinary business means a user or business which in fact requires only an ordinary amount of light."
With regard to that citation I would associate myself with what Goff L.J. has said in his judgment. Bray J. said, at p. 424:
"I am, however, prepared to go further, and to hold that even 20 years' enjoyment to the knowledge of the servient tenement will not give a larger right."
That observation was obiter, but was supported by reference to a passage in Lord Davey's speech in Colls' case [1904] A.C. 179, 203, in which Lord Davey had said:
"If the actual user is not the test where the use falls below the standard of what may reasonably be required for the ordinary uses of inhabitancy and business, why (it may be asked) should it be made a test where the use has been of a special or extraordinary character in excess of that standard?"
But it must be borne in mind that Lord Davey expressly reserved his opinion on that point in the course of his speech.
We have been referred to no other relevant authority or observation. Accordingly there is, I think, no decision directly in point.
In the case of an easement of way, the extent of the use to which a claim can be established, whether on foot only or with animals or vehicles, depends, whether under the doctrine of lost grant or prescription, on the nature of the user which has been enjoyed as of right for a sufficient period. By analogous reasoning it seems to me that the same principle should apply to an easement of light. If in any case it could be shown that a use of the dominant tenement for a period and in circumstances justifying the implication of a lost grant has been such as to make an exceptional amount of light necessary for the particular use to which the tenement has been put, I can see no reason why a lost grant of such an exceptional amount of light should not be presumed. If in any case it can be shown that there has been such a use of the dominant tenement for 20 years or upwards before action brought, I see no reason why a prescriptive right should not be obtained in respect of the dominant tenement to such an exceptional amount of light as may be necessary to the satisfactory enjoyment of that use; but the use, to demonstrate a claim as of right to the exceptional amount of light, must be one which, according to ordinary notions, reasonably requires such an exceptional amount of light and must be known at all material times to the occupier of the servient tenement. Whether the use must be continuous throughout the period is not a question which arises in the present case, for it is not disputed that in this case the greenhouse has been used by the occupiers of no. 13 as an ordinary domestic greenhouse throughout the 20 year period.
Accordingly, I agree with Goff L.J. that if the plaintiffs' claim is not good on the basis of the ordinary use of light for a building of the character of a greenhouse, it succeeds as a claim to an extraordinary amount of light enjoyed as of right to the knowledge of the occupiers from time to time of no. 15 throughout the period of upwards of 20 years before action brought.
For these reasons, in addition to all the reasons which have been developed by Goff L.J., I would allow this appeal.
ORDER
Appeal allowed with costs.
Leave to appeal refused.
Crown Copyright acknowledged
These cases are provided freely for use by anybody by lawindexpro. Visit lawindexpro.co.uk
http://www.swarb.co.uk/c/hl/ .html
Date:
