Boyce v Paddington Borough Council  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.