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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
    1. Boyce v Paddington Borough Council [1903] 1 Ch 109
    2. Gregory and Another v London Borough of Camden [1966] 2 All ER 196
    3. R v Thames Magistrates Court, ex parte Greenbaum [1957] LGR 129
    4. R v Greater London Council, ex parte Blackburn [1976] 3 All ER 184
    5. Supreme Court Act 1981
    6. Inland Revenue Commissioners and National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93
    7. R v Felixstowe Justices, ex parte Leigh and another [1987] 1 All ER 551
    8. R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 1 All ER 754
    9. R v Inspectorate of Pollution and another, ex parte Greenpeace Ltd [1994] 4 All ER 329 (No 2)
    10. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Boyce v Paddington Borough Council [1903] 1 Ch 109

BUCKLEY J:....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 consent of the Attorney-General [ie a relator action]. 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 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 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 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 (eg where an obstruction is so placed in a highway that the owner of premises abutting 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 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.