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The vagaries of how buildings are used continue to pose occasional challenges to the venerable topic of rights of light, writes Sue Lindsey. Last year the court heard arguments about whether it was relevant that a modern office block was continuously artificially lit (Midtown v City of London Real Property Company; AJ 17.02.05).

This year a claimant argued that it had the right of light through windows in an entrance lobby, even though the fitting-out of the lobby meant that the windows had been obscured by panelling throughout the 20-year prescription period.

The building with the blocked entrance-lobby windows stands in Vincent Square in Westminster, facing on to an open space used as playing fields by Westminster School. Its neighbour, owned by the defendant, is a three-storey building which replaced the single-storey Rochester Row Magistrates Court and Police Station.

The evidence was that light 'streams' into the entrance lobby by means other than the blocked windows.

The claimant argued that a right to light had been acquired by light entering the windows and illuminating the back of the panelling that lines the lobby. Disagreeing, the judge focused on the precise terms of Section 3 of the Prescription Act 1832, that light 'shall have been actually enjoyed therewith?'. The judge concluded that while the claimant's land could have used the light that would have come through its windows, it had not used it at all, and so no right was acquired.

Although that disposed of the claim, the judge went on to consider whether, if there had been a right, the new three-storey building infringed it. The claimant ran two arguments, both of which were rejected by the judge, to try to overcome the fact that the lobby was otherwise very well lit.

The first was that there might in future be an alternative arrangement of the lobby, such that the windows (if unblocked) would become a crucial rather than subsidiary source of daylight. The judge agreed with the claimant that the proper test was what might objectively be expected as a reasonable future use on the basis of what could be deduced by looking at the outside of the building. However, he rejected the claimant's proposed alternative future arrangements because he found that they were speculative, and not backed up by evidence.

The claimant's second argument was that in deciding whether there was an infringement, the court had to take into account the possibility that the playing fields in front of the building might one day be built upon. The defendant's expert had shown that a building on the playing fields would not adversely affect the blocked windows. So the claimant went further, and asked the judge to consider the potential infringement on the basis that the owners of the open space might build right up to the middle of the road, separating the building from the playing fields; the presumption being that the adjoining owner's land extends that far. The judge dismissed this possibility as far-fetched and utterly remote.

The telling aspect for experts to note on these examples of future use is that the judge focused on what were real possibilities supported by cogent evidence. He also reminded experts that it was his job, and not theirs, to comment on what was, and was not, an actionable loss.

Sue Lindsey is a barrister at Crown Offi ce Chambers in London. Visit www.crownofficechambers. com

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