Leech v Schweder (1874) LR 9 Ch App 463
Court: Court of Appeal in Chancery.
The case concerned whether a tenant could stop a neighbouring development merely because it reduced the light reaching the tenant’s premises. The court held that an ordinary covenant for quiet enjoyment did not give the tenant a wider right to light than the ordinary easement recognised by law.
Facts
Leech and Dodwell manufactured cigars in a warehouse in St Mary Axe, London. The Skinners Company had leased the premises to William Haynes, who subsequently granted the plaintiffs a sublease. The headlease included lights and easements belonging to the premises, together with a covenant for quiet enjoyment.
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A large skylight supplied light to the first floor and, through openings in the floors, to the ground floor and basement. There were also windows at the back. The earlier building on the site had received light in the same way for more than forty years.
Schweder obtained an agreement for a lease of adjoining land from the Skinners Company. His building works raised a party wall beside the warehouse. The plaintiffs said that the wall obstructed their skylight and back windows. Schweder disputed the obstruction and intended to build the wall higher.
The issue
The Master of the Rolls granted an injunction after finding an appreciable interference with the light. He considered that the grant and covenant meant that the plaintiffs did not have to establish the substantial injury required in an ordinary claim for obstruction of light.
On appeal, the question was whether acquiring a right to light through a grant, accompanied by a covenant for quiet enjoyment, gave greater protection than acquiring the ordinary right through twenty years’ use.
The court’s reasoning
Mellish LJ held that the extent of the ordinary right to light was the same in either situation. It did not protect every ray that had previously entered the windows. An actionable interference required a material effect on the comfortable enjoyment of the premises or, for business premises, on carrying on the business as before.
The reference to lights among the lease’s general words conveyed that ordinary right. It did not promise that the existing quantity of light would remain entirely unchanged. Nor did the covenant for quiet enjoyment enlarge the grant: it protected enjoyment of what had been granted and provided an additional remedy if that right was infringed.
The court distinguished a covenant creating a special restriction, such as an express promise to preserve an uninterrupted view. Equity could enforce such a promise against a person bound by it even though the interference would not infringe an ordinary easement. The plaintiffs’ lease contained no such special promise. James LJ agreed that an ordinary quiet enjoyment covenant did not increase the rights granted.
Decision and outcome
The appeal court rejected the legal basis on which the Master of the Rolls had granted the injunction. The plaintiffs had an ordinary right to light and had to establish the interference required to enforce that right.
That did not resolve the factual effect of the wall at its proposed height. Schweder offered to limit its height on terms. The court allowed time for the parties to agree; otherwise, a temporary screen was to be erected at the proposed height and a surveyor appointed to report on its effect. Further inquiry, and argument about costs, would then be needed.
Significance
The distinction is between a covenant protecting an existing right and one creating a wider right. The words of the ordinary quiet enjoyment covenant did not turn every reduction in light into a breach justifying an injunction. The decision nevertheless left the plaintiffs able to establish that the proposed construction materially infringed their ordinary right.
