CIP Property (AIPT) Ltd v Transport for London, London Undergoround Ltd, Derwent Valley Central Ltd
Claims for a negative declaration and mandatory injunction, arising from the alleged infringement of an ancient right to light for property overlooking a site on which development was proposed following the completion of the Crossrail project, had no prospect of success. The action was premature and served no useful purpose since the proposed development lacked planning permission and could not take place for at least five years.
The applicants (T, L and D) applied for summary judgment and dismissal of the claim against them issued by the respondent (C). Following authorisation of the Crossrail project and consequent compulsory purchase of land, T and L succeeded to the title of property surrounding a London Underground station. D had previously owned the land, and by a compromise agreement was granted a right of pre-emption to build above the station by an "oversite" development which, given that Crossrail would not be completed until 2016, could be exercised in 2017 at the earliest. D commenced work on a potential development scheme. C was the freehold owner of property overlooking the site and claimed to enjoy an ancient right to light which it was concerned would be infringed by the oversite development. It informed D that it was likely to claim prescriptive rights to light that it would seek to protect. Correspondence and meetings followed, in which D indicated that it had no intention for any development to take place without considering the rights of third parties. C was disappointed that D did not give any undertaking to that effect. In October 2011, D applied for planning permission for the oversite development, and it informed C that any development would not take place for at least five years, and again reassured C that it would not proceed with any development without considering the rights of third parties. C issued proceedings seeking a negative declaration that D was not entitled to erect any structure that would diminish or obstruct its ancient right to light, and a mandatory injunction restraining any development interfering with that right. T, L and D contended that C's claim was premature and bound to fail since D did not yet own the proposed development site and planning permission had not been granted, and T and L had made no proposal that would infringe any alleged right. They submitted that there was no risk that delaying the issue of proceedings would prejudice C's future rights. C argued that there was a present dispute in that D's current proposals for the development, which it had declined to alter, would interfere with its right to light, and for that interference to be avoided, D would have to reduce substantially its current plans for the proposed development.
(1) For a claimant to be entitled to a declaration, it had to satisfy the court that the defendant had done or threatened to do something which it was not entitled to do, Draper v British Optical Association (1938) 1 All ER 115 followed. The relevant questions in considering the making of a negative declaration were whether the claim was premature, whether a declaration would serve a useful purpose, and whether the issues were clearly defined so as to be properly justiciable, Arrow Generics Ltd v Merck & Co Inc (2007) EWHC 1900 (Pat), (2008) Bus LR 487 and Nokia Corp v InterDigital Technology Corp (Application to Set Aside) (2006) EWHC 802 (Pat), (2006) 29(7) IPD 29053 applied. (2) For the grant of a quia timet injunction, there had to be an immediate threat to do something which a claimant needed the court to prevent; an injunction should not be granted prematurely, Hooper v Rogers (1975) Ch 43 CA (Civ Div) followed. (3) The position of T and L was that they owned land subject to the right of pre-emption granted to D, but they had not applied for planning permission in respect of the site and there was no evidence of any proposals at all for any such development, nor had they encouraged D so as to be liable for the consequences of any development. There were, therefore, no grounds on which it was appropriate to make any declaration or injunction in respect of either T or L, as they did not threaten any right of light C might enjoy. There was no prospect of C's claim succeeding against them, and the action against them was dismissed. (4) D did not yet own the relevant land and its future ownership was conditional upon completion of the terms of the pre-emption agreement and its wish to exercise the right to purchase the land. There was no planning permission for the oversite development, and D would have to satisfy any conditions that were imposed in granting permission in any event. D had made it plain that it would not proceed with any development without having regard to the rights of third parties. The disagreement between D and C did not indicate any immediate threat to infringe any of C's rights. No immediate threat could be posed by a development that could not take place for at least five years. The proposed development was without planning permission and might change substantially before permission was granted. C's claim against D was misconceived: it was premature and served no useful purpose. The actions against D were, accordingly, summarily dismissed.
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25 Jan 2012
Sir Andrew Morritt (Chancellor)
John McGhee QC