[1903]	109
1 Ch.

[CHANCERY DIVISION]

BOYCE v. PADDINGTON BOROUGH COUNCIL.

[1901 B. 3303.]

1902 Nov. 3, 8.

BUCKLEY J.

Burial Ground - Open Space - Hoarding to prevent Acquisition of adjoining Owner's Right to Light - "Building" - Non-joinder of Attorney-General - Metropolitan Open Spaces Act, 1877 (40 & 41 Vict. c. 35), s. 1 - Metropolitan Open Spaces Act, 1881 (44 & 45 Vict. c. 34), ss. 4, 5 - Disused Burial Grounds Act, 1884 (47 & 48 Vict. c. 72), s. 3.

A churchyard was an "open space" within the Metropolitan Open Spaces Acts, 1877 and 1881, and a "disused burial ground" within the Disused Burial Grounds Act, 1884. Under the Acts of 1877 and 1881 it was to be held for the perpetual use thereof by the public "for exercise and recreation" "in an open condition free from buildings," except (as provided by the Act of 1884) for the purpose of enlarging the existing church.

The plaintiff, shortly before action, erected buildings on land abutting on the churchyard, with windows overlooking it. The local authority (having control over the churchyard as an open space) thereupon resolved to erect a hoarding in it to obstruct the access of light to the plaintiff's windows with a view to preventing him from gaining a prescriptive right to the access of light over the churchyard, and the plaintiff brought an action for an injunction to restrain them from doing so:-

Held, (1.) that, as the plaintiff was suing either in respect of an alleged private right to the access of light, or in respect of an alleged interference with a public right from which he personally sustained special damage, he could sue without joining the Attorney-General as a plaintiff; but (2.) that

[1903]		110
1 Ch.	BOYCE v. PADDINGTON BOROUGH COUNCIL.	BUCKLEY J.

the Acts did not create any easement of light or otherwise for the benefit of adjoining owners, or any right other than a right in the public to enjoy the churchyard as an open space (subject to the right to extend the church); (3.) that the hoarding was not a building within s. 5 of the Act of 1881 or s. 3 of the Act of 1884.

The action was accordingly dismissed.

A plaintiff can sue without joining the Attorney-General in two cases, (a) where an interference with a public right involves interference with some private right of the plaintiff; and (b) where no private right of the plaintiff is interfered with, but he, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.

THE churchyard of St. Mary's Church, Paddington, was an "open space" within the Metropolitan Open Spaces Acts, 1877, 1881, and 1887, and the Disused Burial Grounds Act, 1884.

Thomas Boyce was the owner of a leasehold piece of land abutting on the churchyard, on which he had recently erected blocks of flats with windows overlooking the churchyard. The borough council of Paddington, in January, 1901, passed a resolution directing their surveyor to erect a screen or hoarding in the churchyard to obstruct the light to the windows, and the present action was brought by Boyce against the mayor, aldermen, and councilors of the metropolitan borough council of Paddington and the vicar of Paddington (in whom the soil and freehold of the churchyard were alleged to be vested, and who was also alleged to be a party to the resolution as a member of the council) for an injunction to restrain the defendants from erecting the screen.

The action came on for trial before Buckley J. on November 3, 1902.

Astbury, K.C., and Mark Romer, for the plaintiff. The churchyard is an open space within the meaning of the Metropolitan Open Spaces Acts, 1877 (40 & 41 Vict. c. 35) and 1881 (44 & 45 Vict. c. 34), and the Open Spaces Act, 1887 (50 & 51 Vict. c. 32), and is a disused burial ground within the meaning of the Disused Burial Grounds Act, 1884 (47 & 48 Vict. c. 72).

Under s. 1 of the Act of 1877 an open space, when acquired under the Act, is to be held "in trust for the perpetual use thereof by the public for exercise and recreation."

[1903]		111
1 Ch.	BOYCE v. PADDINGTON BOROUGH COUNCIL.	BUCKLEY J.

Sect. 4 of the Act of 1881 gave power to transfer any churchyard or the control of it within the metropolis, closed for burials, to the local authority "for the purpose of giving the public access" thereto and "preserving the same as an open space accessible to the public"; and by s. 5 of the same Act the local authority is to hold and administer the property "in trust to allow, and with a view to, the enjoyment by the public of such open space, churchyard, cemetery, or burial ground in an open condition, free from buildings," and power is given to "inclose or keep the same inclosed with proper railings and gates."

By s. 3 of the Act of 1884, "it shall not be lawful to erect any buildings upon any disused burial ground, except for the purpose of enlarging a church, chapel, meeting-house, or other place of worship."

The plaintiff, as a member of the public, is entitled to the benefit of the statutes which say that this churchyard shall be kept as an open space, and if the hoarding is erected the churchyard will no longer be an open space, and he will suffer sub-stantial damage peculiar to himself by the interruption by the erection of the hoarding of the access of light over the burial ground to his windows. He is, therefore, entitled to maintain the action without joining the Attorney-General as a co-plaintiff: Winterbottom v. Lord Derby. (1)

A hoarding is a building within the meaning of the Acts of 1881 and 1884. It is the same thing as a screen, which Romer J. held to be a building: Wood v. Cooper. (2) Kekewich J. held that an advertisement hoarding was not a building within the meaning of a peculiarly worded covenant: Foster v. Fraser. (3)

[They also referred to Vicar of St. Botolph, Aldersgate Without v. Parishioners of the Same. (4)]

H. Terrell, K.C., and T. A. Nash, for the defendant council. The plaintiff has no cause of action. The only person who can bring an action if public rights are being interfered with is the Attorney-General, and he is not a party to this action. The

(1) (1867) L. R. 2 Ex. 316.

(2) [1894] 3 Ch. 671.

(3) [1893] 3 Ch. 158.

(4) [1900] P. 69.

[1903]		112
1 Ch.	BOYCE v. PADDINGTON BOROUGH COUNCIL.	BUCKLEY J.

plaintiff has no legal right to the access of light to his windows. His object in these proceedings is to prevent the windows being obstructed, so that he may acquire a prescriptive right to light. It is a case of damnum absque injuria. In order to be in a position to maintain an action for an interference with a public right, the plaintiff must shew that he has suffered some private injury beyond the damage suffered by other members of the public: Lyon v. Fishmongers' Co. (1); Stoke Parish Council v. Price (2); Ricket v. Metropolitan Ry. Co. (3)

A hoarding put up to prevent the access of light is not a building within the meaning of either Act: Wilson v. Queen's Club. (4)

[They also referred to Liverpool Corporation v. Chorley Waterworks Co. (5); Slaughter v. Sunderland Corporation. (6)]

C. A. Montague Barlow, for the vicar of Paddington.

Astbury, K.C., in reply. Lyon v. Fishmongers' Co. (1) is in our favour, for the plaintiff is suing in respect of an interference with the enjoyment of his private property. Although a public right is interfered with, inasmuch as the plaintiff thereby suffers particular damage, he can maintain an action: Iveson v. Moore. (7) Wilson v. Queen's Club (4) has no bearing on a case like this. [He also referred to Pocock v. Gilham (8); The Century Dictionary, title "Building."]

Cur. adv. vult.

Nov. 8. BUCKLEY J. When stripped of all technicality the question to be determined in this action is whether the owners of lands circumjacent to and abutting upon other land which has become an open space within the Metropolitan Open Spaces Acts, 1877, 1881, and 1887, and the Disused Burial Grounds Act, 1884, become at once, by virtue of those Acts - or must be allowed to become, after the period of the Prescription Act, by virtue of an enjoyment which cannot be excluded by the erection of a hoarding - entitled as of right to

(1) (1876) 1 App. Cas. 662.

(2) [1899] 2 Ch. 277.

(3) (1867) L. R. 2 H. L. 175.

(4) [1891] 3 Ch. 522.

(5) (1852) 2 D. M. & G. 852.

(6) (1891) 65 L. T. 250.

(7) (1698) 1 Ld. Raym. 486.

(8) (1883) 1 Cab. & E. 104.

[1903]		113
1 Ch.	BOYCE v. PADDINGTON BOROUGH COUNCIL.	BUCKLEY J.

the access of light to the windows of any buildings which they may erect contiguous to the open space.

The open space in question is the disused burial ground of St. Mary's, Paddington. The plaintiff is a person who has recently erected a large block of flats immediately abutting upon that open space, with numerous windows overlooking it. The defendants contend that they are entitled to erect a hoarding in front of those windows, so as to prevent the plaintiff from prescribing for rights of light. The plaintiff says they are not so entitled, and rests his case upon two grounds. He says, first, that he, as a member of the public, is entitled to insist that the space shall be an open space, from which it results that there will be free access of light to his windows; and, secondly, that, whether this is so or not, the defendants cannot erect a hoarding so as to prevent his becoming entitled by prescription, because they are by the relevant Acts of Parliament forbidden to erect any building, temporary or movable, except for the purpose of enlarging the church. A hoarding erected for the purpose of preventing the acquisition of a prescriptive right to light is, he says, a building.

The defendants have raised the contention that the plaintiff cannot maintain the action without the concurrence of the Attorney-General. This contention, to my mind, cannot succeed. The plaintiff is suing either in respect of an alleged right to the free access of light to his windows over the open space, or in respect of a public right to have the space maintained as open and without the erection of a hoarding, which he calls a building. In the former case he is suing upon an alleged private right; there is no public right of access of light to private property. In the latter he is suing in respect of an interference with a public right from which he personally sustains special damage. In either case he can sue without joining the Attorney-General.

The public are not the owners of lights overlooking the space, and there is no public right to access of light to any such windows. The public right is to have the open space so kept as to allow the enjoyment by the public of the space in

[1903]		114
1 Ch.	BOYCE v. PADDINGTON BOROUGH COUNCIL.	BUCKLEY J.

an open condition, free from buildings. That right the plaintiff is entitled to as a member of the public; but any right of access of light to the windows of his property is not a public right. It is not a right which he enjoys as one of the public, or which any member of the public enjoys in common with himself. If, therefore, he claims upon the footing that he has a right to the access of light to his windows, he is suing in respect of a private, and not a public, right, and the Attorney-General is not a necessary party.

Further, if he is suing in respect of his right as a member of the public to say no building shall be put on the land, and if this hoarding is a building, there he would be suing in respect of a public right, and the Attorney-General would be a necessary party but for the further fact that the plaintiff personally (upon this hypothesis) suffers special damage from the breach of a public right, and, if he do so suffer, then he can sue without joining the Attorney-General.

A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right. The former proposition, I think, is to be deduced from Lyon v. Fishmongers' Co. (1) and Fritz v. Hobson (2), and was one which I had to consider in Chaplin & Co. v. Westminster Corporation (3); while the latter is to be found in Iveson v. Moore (4), Hart v. Basset (5), Benjamin v. Storr (6), and Winterbottom v. Lord Derby. (7) I think, therefore, that the action is well constituted,

(1) 1 App. Cas. 662.

(2) (1880) 14 Ch. D. 542.

(3) [1901] 2 Ch. 329.

(4) 1 Ld. Raym. 486.

(5) (1681) 4 Vin. Abr. 519.

(6) (1874) L. R. 9 C. P. 400.

(7) L. R. 2 Ex. 316.

[1903]		115
1 Ch.	BOYCE v. PADDINGTON BOROUGH COUNCIL.	BUCKLEY J.

and I pass on to consider whether the plaintiff has the right which he claims.

At the outset it would seem to be an extraordinary proposition that, because an open space is devoted to the public for enjoyment in an open condition, free from buildings, for exercise and recreation (see Metropolitan Open Spaces Act, 1877, s. 1, Act of 1881, s. 5), the result should be to give immediately, or by the unavoidable operation of the Prescription Act, to the circumjacent owners, as matter of right, an easement of light which theretofore they had not enjoyed. I may point to one case in which such a construction certainly is not admissible.

A disused burial ground which is so dealt with as to become an open space under these Acts may nevertheless be used for the purpose of enlarging a church, chapel, meeting-house, or other place of worship: see the Act of 1884, s. 3. If the plaintiff's proposition were true, the owner of the adjoining land would, after the Prescription Act had run, become (without any power on the part of the owners of the open space to prevent his becoming) entitled to rights of light over the open space which might prevent the subsequent erection of such an enlargement as that Act allows.

The proposition for which the plaintiff contends is evolved from the premiss that because the space is to be an open space, therefore there must be free passage of light over it to the windows of houses built on the adjacent land. This begs the question and assumes that a hoarding cannot be erected. The Acts do not contemplate the statutory creation of any such consequential rights in the neighbouring owners. The space is to be open for the public purposes for which it is to be enjoyed - that is, for exercise and recreation. It is not to be open so as to create rights in favour of adjoining landowners. The statute is not dealing with the creation of easements or the creation of any right other than a right in the public to enjoy the space as an open space for the purposes indicated in the Acts. As an adventitious advantage the owner of the adjoining land would, no doubt, in most cases in fact obtain the benefit of air and light. But he is not, I think, entitled to

[1903]		116
1 Ch.	BOYCE v. PADDINGTON BOROUGH COUNCIL.	BUCKLEY J.

it as a matter of right. The rights created are public rights. There is no public right to have free access of light to windows on the land surrounding the open space, or any part of it. The plaintiff's contention really is that he has that right which would be a private right because there is another and a different public right.

But then the plaintiff says, "Assume that by virtue of the statute I do not immediately acquire an easement, still, as a member of the public, I have a right to insist that no building shall be put upon the open space, and if no building (which I say includes a hoarding for the purpose of preventing a prescriptive right) is put up I shall, under the Prescription Act, get a right in time, and the effect of the Acts is that matters must be so left as that I shall acquire that right." This argument is rested upon a contention that a hoarding put up for the purpose of preventing the plaintiff prescribing under the Prescription Act is a building. Several cases have been referred to as to whether a hoarding is a building. In Pocock v. Gilham (1) and Wood v. Cooper (2) it was held that a hoarding or a screen was, and in Slaughter v. Sunderland Corporation (3), Wilson v. Queen's Club (4), and Foster v. Fraser (5) that it was not, a building.

From these cases I can derive no principle other than this - that a hoarding may or may not, according to the context, be a building. If the building spoken of be one which it is contemplated shall have a stuccoed front and a slate roof - Foster v. Fraser (5) - or a building to be erected under a building lease - Wilson v. Queen's Club (4) - a hoarding will not be a building. If the question arises under a lessee's covenant not to put up a building, and he does put up a hoarding which affects the adjoining occupier - Pocock v. Gilham (1) and Wood v. Cooper (2) - it may be a building. What I have to consider is whether such a hoarding as the defendants would put up to prevent the plaintiff from acquiring prescriptive rights would be a building within the Acts with which I have to deal. In

(1) 1 Cab. & E. 104.

(2) [1894] 3 Ch. 671.

(3) 65 L. T. 250.

(4) [1891] 3 Ch. 522.

(5) [1893] 3 Ch. 158.

[1903]		117
1 Ch.	BOYCE v. PADDINGTON BOROUGH COUNCIL.	BUCKLEY J.

my opinion it would not. It would be an erection, put up not for any purpose of building, but as an erection necessary to prevent the acquisition of a prescriptive right. The word in s. 5 of the Act of 1881 occurs in the connection that the land is to be enjoyed "in an open condition free from buildings." I think this means such buildings as would preclude or diminish its enjoyment in an open condition for exercise and recreation (Act of 1877, s. 1). In s. 3 of the Act of 1884 the erection of any buildings upon a disused burial ground is forbidden except for the purpose of enlarging a church. I think the word "buildings" there means erections which would cover some part of the ground, as the enlargement of a church would do. It does not refer to something in the nature of a fence or barrier to prevent the acquisition of prescriptive rights to light.

Upon these grounds I come to the conclusion that the plaintiff has not by virtue of the Acts acquired such an easement as he seeks to enjoy, and that the defendants are not by the Acts precluded from erecting such a hoarding as is necessary to prevent him from obtaining the benefit of the Prescription Act.

I think, therefore, that the action fails, and I dismiss it with costs.

Solicitors for plaintiff: Cheston & Sons.

Solicitor for defendants: John H. Hortin.

F. E.