Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

before commencing work, as otherwise the work is a nuisance.81 Work covered falls into three categories:82 (1) New boundaries which are to be party structures require the neighbour’s consent, but notice must also be given of any new wall in sole ownership. (2) Work to existing party structures requires notice, whether a repair or a tying in. (3) Excavation within six metres of a boundary. In each case notice and counter notice procedures are laid down, with disputes resolved by an agreed surveyor.83 Work must respect the neighbour’s existing rights to light, other easements, and other property rights.84

4.Hedges

[32.15] It is estimated that there are 17,000 problem hedges in England and Wales, almost all Leylandii, a vigorous cypress growing at up to two metres a year and potentially reaching 130 feet. The High Hedges Bill 200285 aims to give councils discretion to act against evergreen trees exceeding two metres in height. A hedge is a barrier formed by two or more evergreens.86 The basis for complaint would be that the hedge was unreasonably restricting light to domestic property of residential occupiers, such as a house or garden.87 A protocol will require two written requests to the owner followed by an official notice procedure and appeal process which will bind future owners.88

E. MISCELLANEOUS AFFIRMATIVE RIGHTS

1.Storage rights

[32.16] Easements may not give exclusive rights over another’s land,89 but they may confer limited rights of storage or parking. The distinction turns on the degree of interference with the use of the burdened land by its owner. An easement to use a garden leaves the soil and its produce unaffected.90 The right to use a toilet discussed in Miller v. Emcer Products91 was clearly exclusive during actual use, but overall this exclusion was trivial.

Storage highlights this problem of allocation. Exclusion occurs while items are stored, but according to the degree it may exclude the burdened owner from his land

81Louis v. Sadiq [1997] 1 EGLR 136, CA; Sims v. Estates Co (1866) 14 LT 55 (injunction); Lehmann v. Herman [1993] 1 EGLR 172 (all joint tenants).

82Respectively Party Wall etc Act 1996 ss 1, 2, 6.

83Grounds must be stated in the award: Frances Holland School v. Wassef [2001] 2 EGLR 88, Ct Ct; it is not registrable: Observatory Hill v. Camtel Investments [1997] 1 EGLR 140, Ch D.

84S 9; Crofts v. Haldane (1867) LR 2 QB 194; Burlington Property Co v. Odeon Theatres [1939] 1 KB 633, CA (conversion of window to door refused).

85HL Bill 4; HW Wilkinson [2002] NLJ 10.

86Cl 2.

87Cl 3.

88Cls 4–9.

89See below [32.24].

90Re Ellenborough Park [1956] Ch 131, 176; Mulvaney v. Gough [2002] EWCA Civ 1078, [2002] 44 EG

91[1956] Ch 304, CA.

or it may exclude him from a defined part of a larger whole. Suitably limited, the right can be an easement.92 A burial right is one, rather final, illustration.93 Wright v. Macadam94 accepted a right to store coal in a coal cellar, following an earlier case on storage of goods awaiting shipment on a foreshore,95 but not an unlimited right of storage in a confined space.96 Leniency is appropriate since the doctrinal issue is not whether to create a proprietary burden but merely how to classify a known burden.

2.Parking

[32.17] Parking merits separate treatment only because the common law has moved so slowly to reflect the general use of cars. In Copeland v. Greenhalf 97 a garage owner failed in a prescriptive claim to have a right to use a strip of land adjoining the lane leading to his garage to store vehicles which were waiting to be repaired. Unlimited parking98 and exclusive use of a private garage would fail for the same reason. No easement can exist if the true owner is excluded from his land or his ownership has become illusory.99

However, a limited parking right can be an easement, even if easement-like status is not finally settled at appellate level.100 Indeed, few rights would be more important to the owner of a flat in a city centre than the right to park his car on nearby land. So, in Handel v. St Stephens Close101 rights to park on the access roads to a block of flats were recognised as an easement attached to the flats in the development, and the developer was prevented from interfering by marking out parking bays. Another case recognises the right to load or unload a lorry.102 Shared use of a visitors’ parking space on a flat development should occur by easement.103 More borderline is a claim by long term parking on one particular spot on a larger servient tenement – does this exclude the owner from that particular space or is it a non-exclusive use of the larger servient plot?

Parking rights that are precarious cannot create easements but a more limited protection may be available in the principle of non-derogation from grant.104

92Mast v. Goodson (1772) 2 Wm Bl 848, 96 ER 500; Wood v. Hewett (1846) 8 QB 913, 115 ER 1118.

93Bryan v. Whistler (1828) 8 B & C 288, 108 ER 1050; P Sparkes [1991] Ecclesiastical LJ 133.

94[1949] 2 KB 744.

95Att-Gen for Southern Nigeria v. John Holt & Co (Liverpool) [1915] AC 599, PC; Smith v. Gates [1952] Ch 814.

96Grigsby v. Melville [1974] 1 WLR 455, CA; JR Spencer [1974] CLJ 51.

97[1952] Ch 488, Upjohn J; P Luther (1996) 16 LS 51.

98A claim to adverse possession might just have succeeded if the case had been pleaded differently; only 12 years possession is required.

99Batchelor v. Marlow [2001] 1 EGLR 119, CA; (No 2) [2001] EWCA Civ 1051, (2001) 82 P & CR 36.

100Saeed v. Plustrade [2001] EWCA Civ 2011, [2002] 2 EGLR 19, [222], Sir Christopher Slade; P & S Platt v. Crouch [2002] EWHC 2195 (Ch), [2002] 45 EG 153 (right to moor).

101[1994] 1 EGLR 70; HW Wilkinson [1994] NLJ 579; Penn v. Wilkins [1975] 2 EGLR 113, Megarry J;

London & Blenheim Estates v. Retail Parks [1994] 1 WLR 31, CA.

102Thorpe v. Brumfitt (1873) LR 8 Ch App 650.

103Patel v. WH Smith (Eziot) [1987] 1 WLR 853, CA (conceded).

104Hair v. Gillman [2000] 3 EGLR 74, CA; Saeed v. Plustrade [2001] EWCA Civ 2011, [2002] 2 EGLR

19.

3.Other miscellaneous rights

[32.18] Rights may be needed to overhang or fix to a neighbour’s land. A wall may need support from a tree,105 or a wharf from the bed of the Thames,106 and it may be necessary to hang washing over a neighbour’s yard107 or fix advertisements on his wall.108 On a grander scale, drainage and sea defences are fruitful sources of easements. Cases recognise the right to protection of a house from the sea,109 a right to enter land to open a sluice,110 and a right to have a dock kept open.111

F. EASEMENT-LIKE CHARACTER

[32.19] Cheshire set out the classical statement of the requirements for the existence of an easement, which are:112

(1)Dominant and servient tenements (that is land benefitted and land burdened);

(2)Accommodation of (that is benefit to) the dominant tenement;

(3)Separate ownership or occupation of the two tenements; and

(4)A right capable of forming the subject matter of a deed of grant.

Cheshire’s first and third points make clear that easements must comply with the neighbour principle, so that rights unattached to land are not easements,113 the principle discussed in the next chapter. Here attention is focused on the quality of the rights which are easement-like, but Cheshire’s grouping has become imbalanced because more and more sub-heads cluster around rule 4, whereas rule 2 has little substance. This book seeks a pattern which more nearly reflects the emphasis of the modern law listing a series of factors which negate a claim to the status of an easement.

1.Non-accommodation (non-relation to land)

[32.20] An easement is an right incident to and annexed to property for its more beneficial and profitable enjoyment.114 This appears as Cheshire’s requirement for it to be “accommodated”.115 Excluded are rights which merely benefit the landowner

105Hawkings v. Wallis (1763) 2 Wils KB 173, 95 ER 750; Simpson v. Weber (1925) 133 LT 46 (creeper).

106Lancaster v. Eve (1859) 5 CB (NS) 717, 141 ER 288.

107Drewell v. Towler (1832) 3 B & Ad 735, 110 ER 268.

108Hoare v. Metropolitan Board of Works (1874) LR 9 QB 296; Moody v. Steggles (1879) 12 Ch D 261;

Francis v. Hayward (1882) 22 Ch D 177 (house name plate).

109Philpot v. Bath (1905) 21 TLR 634.

110Simpson v. Godmanchester Corp [1897] AC 696, HL.

111Morton v. Snow (1873) 29 LT 591, PC.

112Cheshire & Burn (16th ed), 570–574; Re Ellenborough Park [1956] Ch 131, 163, Evershed MR; Ward

v.Kirkland [1967] Ch 194, 222, Ungoed-Thomas J.

113See below [33].

114Mounsey v. Ismay (1865) 3 H & C 486, 499, 159 ER 621, Martin B.

115Keppell v. Bailey (1834) 2 My & K 517, 537, 39 ER 1042, Brougham LC; Re Ellenborough Park [1956] Ch 131, 169, Evershed MR.

personally.116 Increase in value of the land is indicative of a benefit to the land, but is not alone sufficient. A right of free entry to Lords Cricket Ground might enhance the value of a house in south London but could not be easement. In Re Ellenborough Park,117 a mid-Victorian development in Weston-super-Mare was laid out around a central railed garden, shared in common by the owners of all the houses round the park. Enjoyment of this communal garden was annexed to neighbouring houses,118 pleasure being incidental,119 though rights cannot be easements if they are “mere rights of recreation, possessing no quality of utility or benefit”.

Hill v. Tupper120 concerned a rural idyll in the unlikely setting (to modern eyes) of the Basingstoke Canal. The tenant of a piece of land adjoining the canal had the exclusive right of letting pleasure boats for hire on the canal. He sued a publican who had placed his own boats on the canal, but failed. No doubt the canal company would have succeeded, and they may have been liable for allowing the publican to infringe the exclusive contract they had given. Direct action by the grantee of this right against the intruder depended on the existence of an easement. Only an estate in the site of the canal could bind someone outside the contractual relationship.121 The plaintiff failed, according to Evershed MR’s later rationalisation,122 because he:

“was trying to . . . set up, under the guise of an easement, a monopoly which had no normal connexion with the ordinary use of his land, but which was merely an independent business enterprise.”

Businesses can of course make use of recognised easements. In Moody v. Steggles,123 a long established pub successfully claimed the right to fix a pub sign on the adjoining house. Accommodation only becomes an issue with marginal rights. Loss of the benefit should end the easement.124

2.Precariousness

[32.21] An easement must create a right, and so use of a feature that is dependent on the whim of the burdened owner cannot be an easement.125 A right of way fails if it is only available when gates are open and when the way is not required for the landlord’s business,126 as does a claim to take water if and when available127 or to parking at the landlord’s discretion.128

116Benefit to other land is no problem: Bailey v. Stephens (1862) 12 CB (NS) 91, 142 ER 1077; Simpson

v.Godmanchester Corp [1897] AC 696, HL.

117[1956] Ch 131, CA; RE Megarry (1956) 72 LQR 16; RN Gooderson [1956] CLJ 24.

118At 175, Evershed MR; Mulvaney v. Gough [2002] EWCA Civ 1078, [2002] 44 EG 175.

119At 164, 172, 178–179; Mounsey v. Ismay (1865) 3 H & C 486, 159 ER 621 (horse racing).

120(1863) 2 H & C 121, 159 ER 51; Ackroyd v. Smith (1850) 10 CB 164, 138 ER 68.

121At 128, Martin B.

122Re Ellenborough Park [1956] Ch 131, 175.

123(1879) 12 Ch D 261, Fry J; Copeland v. Greenhalf [1952] Ch 488, Upjohn J.

124Huckvale v. Aegean Hotels (1989) 58 P & CR 163, CA; G Kodilinye [1990] Conv 292.

125Arkwright v. Gell (1839) 5 M & W 203, 151 ER 87; Brett v. Clowser (1880) 5 CPD 376, 383, Denman J.

126Green v. Ashco Horticulturalist [1966] 1 WLR 889, Cross J; S Roberts (1966) 29 MLR 574.

127Burrows v. Lang [1901] 2 Ch 502; International Tea Stores v. Hobbs [1903] 2 Ch 165, 171–172, Farwell J; Schwann v. Cotton [1916] 2 Ch 120; Wright v. Macadam [1949] 2 KB 744, 750, Jenkins LJ; Goldberg v. Edwards [1950] Ch 247, 255–256, Evershed MR.

128Saeed v. Plustrade [2001] EWCA Civ 2011, [2002] 2 EGLR 19.

3.Uncertainty

[32.22] Any easement must be precisely defined, so that the parties can tell whether or not it has been infringed. Limiting the width of possible rights ensures that ownership of land cannot be completely negated by the grant of an easement,129 reasoning which applies with equal force to documentary and to prescriptive easements. Case-law examples give a feel for the test. A right to wander at pleasure is accepted if confined to a specific garden,130 but not over a much wider area such as a park or golf course. A right to light on a whole building is not accepted, but to a particular window it is.131

Uncertain rights have a different jizz.132 No wonder that a right to an unlimited current of air has been rejected, however important it was for the paper drying industry,133 when contrasted with the well recognised easement of drawing air through a precisely defined ventilation shaft.134 Rejected for vagueness are rights to privacy, to a view, and to protection from the weather by an adjoining house. Lord Denning MR has said such an easement would unduly restrict a neighbour in his enjoyment of his own land and hamper legitimate development,135 though curiously the same restriction could be imposed as a covenant.136

4.Positivity

[32.23] Expense incurred by the burdened owner is a bar to the recognition of a putative right since easements of all kinds (with the sole exception of fencing) must be negative in nature.137

5.Exclusivity

[32.24] This rule is concerned with the allocation of burdens between different legal categories. Exclusive possession may be conferred by a freehold estate, a lease or a licence.138 Easements operate as a burden on other ownership rather than as an ownership right in the land used. The distinction turns on the degree of interference with the use of the burdened land by its owner. An easement to use a garden leaves the soil and its produce unaffected.139 The right to use a toilet discussed in Miller v. Emcer Products140 was clearly exclusive during actual use, but this was a trivial exclusion

129 Copeland v. Greenhalf [1952] Ch 488, Upjohn J; Dyce v. Hay (1852) 1 Macq 305, 312, Lord St Leonards LC; Re Webb’s Lease [1951] Ch 808, 815, Evershed MR.

130Re Ellenborough Park [1956] Ch 131, 177–187, Evershed MR. Earlier authorities on the jus spatiendi were mixed: Duncan v. Louch (1845) 6 QB 904, 115 ER 341; Keith v. 20th Century Club (1904) 20 TLR 462;

International Tea Stores Co v. Hobbs [1903] 2 Ch 165; Att-Gen v. Antrobus [1905] 2 Ch 188, Farwell J.

131See below [32.28].

132A term applied to birds which, without any overt distinguishing characteristics, seem different to an observer.

133Webb v. Bird (1862) 13 CB (NS) 841, 143 ER 332; Chastey v. Ackland [1897] AC 155, HL.

134Bass v. Gregory (1890) 25 QBD 481; Wong v. Beaumont [1965] 1 QB 173, CA.

135Phipps v. Pears [1965] 1 QB 76, 83E.

136At 83D; Webb v. Bird as above; EH Bodkin (1971) 35 Conv (NS) 324.

137See below [32.49], [36.27].

138Statutory rights can be proprietary: Taff Vale Rly Co v. Cardiff Rly Co [1917] 1 Ch 299, 316, CA.

139Re Ellenborough Park [1956] Ch 131, 176.

140[1956] Ch 304, CA.

overall. Storage and parking provide most of the case law illustrations of these principles.141

G. NOVEL AFFIRMATIVE RIGHTS

[32.25] Easements were once thought to form a closed category.142 Novel burdens might reduce the market value of land or render it completely unsaleable or, as Pollock CB put the same argument in Hill v. Tupper:143

“New rights or incidents of property cannot be created at the pleasure of the owners. . . .

[T]he owner of an estate must be content to take it with the rights and incidents known to and allowed by the law.”

Land must not be carved up into infinite number of tiny use rights.

This principle remains accepted law for restrictive (negative) easements144 but a more relaxed view is now taken of claims to new affirmative (positive) easements.145 Novel rights were once considered by analogy to existing ones. A wayleave for telephone wires is similar to the old easement to run a washing line across a yard and recognised on that analogy, but this inherently conservative principle was a hit or miss way of dealing with new technological developments. Lord Evershed MR broke the mould in Re Ellenborough Park by deciding in favour of the new easement (to use a private garden) without establishing the analogy of the jus spatiandi (a right for perambulators to wander about), or similarity to any other existing right. Once a new easement right passes the hurdles set out above for easement-like character, the presumption shifts in favour of recognising it. Technological innovation is so rapid that the courts must be able to adapt property law to cope. Railways, canals, telegraphs and telephones have all required new rights. The challenges have moved on to helicopters, hi-tech cables and parking, and there are new ones as yet undreamt of to come.146

H. LICENCES

[32.26] Other easement-like rights may create licences, because of informality,147 charitable instinct,148 lack of some essential characteristic of an easement,149 or lack

141See above [32.16ff].

142Keppell v. Bailey (1834) 2 My & K 577, 39 ER 1055; Ackroyd v. Smith (1850) 10 CB 164, 138 ER 68.

143(1863) 2 H & C 121, 127, 159 ER 51.

144Phipps v. Pears [1965] 1 QB 76, CA; see below [32.33].

145[1956] Ch 131, 140, Dankwerts J.

146Dyce v. Hay (1852) 1 Macq 305, 315, St Leonards LC.

147Fentiman v. Smith (1803) 4 East 102, 102 ER 770; Hyde v. Graham (1862) 1 H & C 593, 158 ER 1020; Winter v. Brockwell (1807) 8 East 308, 103 ER 359; Tayler v. Waters (1816) 7 Taunt 374, 129 ER 150; Duke of Devonshire v. Eglin (1851) 14 Beav 530, 51 ER 389.

148Wallis v. Harrison (1838) 4 M & W 538, 150 ER 1543.

149Use of the word “licence” is not decisive: IDC Group v. Clark [1992] 2 EGLR 184, CA; HW Wilkinson (1993) 143 NLJ 1544.

of authority to grant an easement.150 The licence may be revocable at will,151 contractual, or have proprietary force with the support of an estoppel.152 After sale of the burdened land, a licence will not do and it is necessary to discover a proprietary right.153

I.RESTRICTIONS

[32.27] Restrictions affecting a neighbour’s land might be:

rights to light (but there is no wider category of restrictive easements); rights created to prevent a derogation from grant; or

restrictive covenants.

These require treatment in turn.

J.RIGHTS TO LIGHT

1.Light requires acquisition as an easement

[32.28] A landowner does not have a right to receive light on to his garden or open land,154 but light can be acquired as an adjunct to an adjoining building,155 or more precisely under Colls v. Home & Colonial Stores156 for the benefit of a particular window.157 When a new window is made, the neighbour may build to block light getting to it,158 but his right to block it is lost after the 20 year prescription period.159

2.Measure of light

[32.29] Should the owner of a window be entitled to continue to enjoy the light previous enjoyed by his window? This is the maximum possible quantum of light for

150Evans v. Cynon Valley BC [1992] EGCS 3, CA.

151LPA 1925 s 54(1); Liggins v. Inge (1831) 7 Bing 682, 131 ER 263.

152R v. Horndon on the Hill (1816) 4 M & S 562, 105 ER 942; Armstrong v. Sheppard & Short [1959] 2 QB 384, CA; Ward v. Kirkland [1967] Ch 194; ER Ives (Investments) v. High [1967] 2 QB 379, CA; Crabb

v.Arun DC [1976] Ch 179, CA; Dance v. Triplow [1992] 1 EGLR 190, CA; JE Martin [1992] Conv 197; Handel v. St Stephens Close [1994] 1 EGLR 70 (parking, passive inducement).

153Re Ellenborough Park [1956] Ch 131, 159, Evershed MR; Wong v. Beaumont [1965] 1 Ch 173, CA.

154Potts v. Smith (1868) LR 6 Eq 311.

155Statutory prescription is linked to a “dwelling house, workshop or other building”; Att-Gen v. Queen Anne Garden & Mansions Co (1899) 60 LT 759, Kekewich J; Hyman v. Van den Bergh [1908] 1 Ch 167, CA (cowshed); Clifford v. Holt [1899] 1 Ch 698 (church); Allen v. Greenwood [1980] Ch 119, 125 (greenhouse).

156[1904] AC 179, HL.

157Tapling v. Jones (1865) 11 HLC 290, 305, 11 ER 1344, Westbury LC; Dalton v. Henry Angus & Co (1881) 6 App Cas 740, 794, Selborne LC, 824, Lord Blackburn; Levet v. Gas Light & Coke Co [1919] 1 Ch 24 (not doors); Easton v. Isted [1903] 1 Ch 405 (conservatory); Allen v. Greenwood [1980] Ch 119 (panels in greenhouse). It may benefit other rooms: Colls at 204, Lord Davey; Carr Saunders v. Dick McNeil [1980] 1 WLR 922; S Bridge [1987] CLJ 26.

158Subject to planning and building controls; conversely Building Acts permitting party walls do not justify darkening light: Wells v. Ody (1836) 1 M & W 452, 150 ER 512

159Colls [1904] AC 179, 186, Lord Macnaghten.

prescriptive claims and for those created impliedly on division of the land,160 and usually also for express grants.161 However, in Colls v. Home & Colonial Stores the House of Lords rejected the argument that there was an entitlement to this maximum.162 Instead they adopted a rule, less logical but more practical, which ensures that building work is possible and towns can continue to grow:163 an interference with light is actionable only if it creates a nuisance.164 The test is not what light was previously received, but rather whether enough light is left from all sources for comfortable use of premises.165 This standard varies with the locality and may increase as general living conditions improve,166 but ignore subjective factors affecting an individual occupier.167 Partial blockage gives no cause of action,168 unless the light is reduced to a level at which the premises cannot be used with ordinary comfort.169 Despite improvements in scientific technique170 there is no precise test.

Colls has been applied to an express easement171 though it fits more comfortably with prescriptive rights.

Different levels of light can be demanded for a dwelling, an office, a factory,172 and a church.173 In Allen v. Greenwood174 a domestic greenhouse had been in use for 20 years before the neighbour erected a fence, leaving insufficient light for growing plants which is the ordinary use of a greenhouse. The owner obtained an injunction for the removal of the fence to avert that ultimate middle class nightmare, the inability to ripen his tomatoes. A point which remains open is whether a specially high level of light175 can be prescribed for by special use of a building. Can a house which is used for 20 years176 to grow plants acquire the level of light appropriate to a greenhouse? Both Goff and Buckley LJJ felt that this was allowed if the extraordinary use was

160Leech v. Schweder (1874) LR 9 Ch App 463; Corbett v. Jonas [1892] 3 Ch 137.

161Eg Newnham v. Lawson (1971) 22 P & CR 852, though an express deed could define its own level of

light.

162[1904] AC 179, 182, Lord Halsbury, 195, Lord Davey; Kine v. Jolly (No 1) [1905] 1 Ch 480, 489.

163[1904] AC 179, 182, Lord Halsbury.

164Att-Gen v. Nichol (1809) 16 Ves 338, 33 ER 1012, Eldon LC.

165[1904] AC 179, 204, Lord Davey; Higgins v. Betts [1905] 2 Ch 210, 215–216, Farwell J. In Jolly v. Kine [1907] AC 1 the House of Lords divided 2:2 on similar facts, but the CA decision thus confirmed is surely wrong. Also Paul v. Robson (1914) 30 TLR 533, 534, Lord Moulton; Gamble v. Doyle (1971) 219 EG 310, Ungoed-Thomas J.

166Jolly v. Kine [1907] AC 1, HL; Fishenden v. Higgs & Hill (1935) 153 LT 128; Ough v. King [1967] 1 WLR 1547, 1552G, Lord Denning MR.

167Colls [1904] AC 179, 209, Lord Lindley.

168Fishmongers’ Co v. East India Co (1752) 1 Dick 163, 21 ER 232; Charles Semon & Co v. Bradford Corp [1922] 2 Ch 737.

169Martin v. Headon (1866) LR 2 Eq 424.

170Ecclesiastical Commissioners for England v. Kino (1880) 14 Ch D 213, CA (45 degree rule); AH Hudson (1960) 24 Conv (NS) 424; Ough v. King [1967] 1 WLR 1547, CA (Waldram method); Gamble v. Doyle (1971) 219 EG 310 (sky visibility and grumble line tests); Deakins v. Hookings [1994] 1 EGLR 190, Ct Ct; HW Wilkinson [1994] NLJ 875.

171Frogmore Developments v. Shirayama Shokusa [2000] 1 EGLR 121, Ch D.

172Colls [1904] AC 179, 202, Lord Davey; Allen v. Greenwood [1980] Ch 111, 130, Goff LJ, 135, Buckley LJ.

173Newham v. Lawson (1971) 22 P & CR 852.

174[1980] Ch 119; FR Crane [1979] Conv 298.

175On poor light see: EH Bodkin (1974) 38 Conv (NS) 4; AH Hudson [1984] Conv 408.

176Lanfranchi v. Mackenzie (1867) LR 4 Eq 421; Ecclesiastical Commissioners for England v. Kino (1880) 14 Ch D 213; Warren v. Brown [1900] 2 QB 722.

known to the servient owner.177 Prescription should be allowed of a right to solar heating as well as for illumination.178

3.Acquisition of light

[32.30] Although rights to light may be created expressly this is unusual, and the usual methods of creation are by implied grant on physical division179 and by prescriptive long use.180

K. NOVEL RESTRICTIVE EASEMENTS

1.Restrictive easements

[32.31] In Phipps v. Pears, Lord Denning MR drew a distinction between the class of affirmative easements such as rights of way, which give the owner of land a right himself to do something on or to his neighbour’s land and another class:

“negative easements, such as a right of light, which gives him a right to stop his neighbour doing something on his (the neighbour’s) own land.”181

In this book this second category are called restrictive easements, to highlight their analogy to restrictive covenants. Like all easements they must be negative in nature, imposing no duty to expend money.182

2.No easement of weatherproofing

[32.32] New restrictions would prevent desirable development and stunt the growth of towns.183 In Phipps v. Pears184 two buildings in Market Street, Warwick, were built so as to touch but with the two walls not bonded together. The ownerships were separated in 1931 and in 1962 the council ordered the demolition of No 14, leaving the flank wall of No 16 exposed to the weather. Damp penetrated, the water froze, and this caused cracking. An action for damages failed, since protection from the weather was not a right known to law, though the However, since an express covenant is valid185 it can be seen that the real objective is to limit the kinds of restriction which

177Allen v. Greenwood [1980] Ch 119, 131B, 136C; Colls [1904] AC 179, 203, Lord Davey (hostile); Ambler v. Gordon [1905] 1 KB 417, Bray J; Warren v. Brown [1900] 2 QB 722, 733 (approved in Colls); Newham v. Lawson (1971) 22 P & CR 852, 859, Plowman J.

178Allen v. Greenwood [1980] Ch 119, 134D, Goff LJ.

179See below [35.26].

180See below [36.28ff].

181[1965] QB 76, 83E.

182See above [32.23].

183Att-Gen v. Doughty (1752) 2 Ves Sen 453, 28 ER 290, Hardwicke LC.

184[1965] 1 QB 76, CA; RE Megarry (1964) 80 LQR 318; MA Peel (1963) 28 Conv (NS) 450; K Scott [1964] CLJ 203; HW Wilkinson (1964) 27 MLR 614; Bond v. Nottingham Corp [1940] Ch 429; Marchant v.

Capital & Counties Property Co [1982] 2 EGLR 156, CA.

185Phipps v. Pears [1965] 1 QB 76, 83, Lord Denning MR; Webb v. Bird (1862) 13 CB NS 841, 143 ER

332.

can be created by prescription.186 The decision itself is largely superseded by the decision in Rees v. Skerrett187 which recognises a common law duty to weatherproof a neighbour’s wall in the ordinary law of tort, without any need for acquisition of a right as an easement. One property in a terrace was demolished leaving a neighbour’s end wall exposed to damage, and it was held that the common law would recognise a duty to do what was reasonable in the circumstances to minimise damage to neighbouring property, and there is also a limited duty of care to prevent loss of support by natural causes where a defect is patent.

All of these cases concern adjoining freeholds, but this line of authority has been extended in Abbahall v. Smee188 to flying freeholds, so as to compel the owner of the upper floor to repair the roof so as to avoid damage to the ground floor flat. An occupier must do what it is reasonable to expect of him189 though the test is objective and does not depend upon the parties’ means.190

3.Policy against novel restrictions

[32.33] Negative easements are anomalous.191 What is in theory a class actually consists of rights to light, with the arguable addition of rights of support.192 Such easements remain a closed category,193 so pure restrictions must be created by covenant194 or by non-derogation. Recognition of new restrictions would substantially hinder future development and might reduce the market value of land or render it completely unsaleable.

Numerous cases show that it a person is entitled to build on his own land subject to planning requirements. Interference with his neighbour is irrelevant, even one seriously detrimental to the amenity of his land.195 Cases have rejected claims to a right to a view,196 since light is a necessity whereas a prospect is a delight.197 Similar rejection faced claims to receive a flow of air,198 (unless in a defined ventilation shaft199) or to

186Phipps at 84A, Lord Denning MR.

187[2001] EWCA Civ 760, [2001] 1 WLR 1541; Goldman v. Hargrave [1967] 1 AC 645; Holbeck Hall Hotel v. Scarborough BC [2000] QB 836, CA; (No 2) [2000] Times March 2nd, CA. The claim failed on the facts.

188[2002] EWCA Civ 1831, [2002] Times December 28th.

189At [13], Munby J.

190At [56], Munby J.

191Hunter v. Canary Wharf [1997] AC 665, 726F–H, Lord Hope.

192Colls [1904] AC 179, 186, Lord Macnaghten; Phipps v. Pears [1965] 1 QB 76, 82E, Lord Denning

MR.

193Keppell v. Bailey (1834) 2 My & K 577, 39 ER 1055; Ackroyd v. Smith (1850) 10 CB 164, 138 ER 68; Hill v. Tupper (1863) 2 H & C 121, 159 ER 51.

194Woodhouse & Co v. Kirkland (Derby) [1970] 1 WLR 1185, Plowman J.

195Hunter v. Canary Wharf [1997] AC 665, 685D–F, Lord Goff, 709B, Lord Hoffmann, 724D–F, Lord Hope. Planning permission is not itself a defence: Wheeler v. JJ Saunders [1996] Ch 19.

196Richardson v. Taylor (1694) Comb 242, 90 ER 454; Att-Gen v. Doughty (1752) 2 Ves Sen 453, 28 ER 290; Fishmongers’ Co v. East India Co (1752) 1 Dick 164, 21 ER 232; Butt v. Imperial Gas Co (1866) LR 2 Ch App 158; Smith v. Owen (1860) 35 LJ Ch 317; P Polden [1984] Conv 429.

197Dalton v. Henry Angus & Co (1881) 6 App Cas 740, 823–824, Lord Blackburn, 794, Selborne LC.

198Bland v. Mosely (1587) 9 Co Rep 58a, 77 ER 817; Webb v. Bird (1862) 13 CB NS 841, 143 ER 332;

Bryant v. Lefever (1879) 4 CPD 172; Chastey v. Ackland [1897] AC 155, HL; Hunter v. Canary Wharf [1997] AC 665, 709B, Lord Hoffmann.

199Bass v. Gregory (1890) 25 QBD 481; Wong v. Beaumont [1965] 1 QB 173, CA.