Summary

There was no need for a claimant to demonstrate an imminent infringement of a legal right before the court would make a declaration concerning the relevant right. The court therefore granted a declaration concerning a claimant's right of light where the defendant had not infringed the right, but had failed to acknowledge it.

Facts

The claimants (P) sought a declaration that their property enjoyed a right to light.

The defendants (H) owned a house adjoining P's property and had obtained planning permission to build a two-storey extension. P obtained a surveyor's report and asserted that H's proposed development would infringe their right to light. H disputed that evidence. Extensive correspondence ensued for the next three years. P made it clear that they would issue proceedings for an injunction to prevent H commencing work. H then gave an undertaking not to begin work without giving 14 days' notice. The undertaking was without prejudice to H's contention that the development would not affect P's rights. P issued proceedings for a declaration to protect their position. H stated that "at least for the foreseeable future" they were prepared to proceed on the assumption that P's expert's analysis was correct.

H submitted that no practical purpose would be served by granting a declaration, as there was no imminent threat to P's rights.

Held

(1) The circumstances in which the court would be prepared to make a declaration were summarised in Rolls-Royce Plc v Unite the Union [2009] EWCA Civ 387, [2010] 1 W.L.R. 318. There was nothing in those general statements requiring an actual or an imminent infringement of a legal right before a declaration would be made. The willingness of the courts in appropriate cases to make declarations regarding rights which might arise in the future, or which were academic as between the parties, suggested that the court's jurisdiction was not so tightly constrained, Rolls-Royce applied and Milebush Properties Ltd v Tameside MBC [2011] EWCA Civ 270, [2011] P.T.S.R. 1654 considered. The fact that P did not need to show an imminent threat of the infringement of the rights of light enjoyed by their property did not mean that a declaration should be made. The issue was whether the circumstances were such as to make it appropriate for the court to grant a declaration, and whether there was a real dispute between the parties, Financial Services Authority v Rourke (t/a JE Rourke & Co) [2002] C.P. Rep. 14 applied (see paras 22-25, 28, 39-40 of judgment). (2) There was clearly a very real dispute in the period leading up to the issue of proceedings. H had for some considerable time vigorously asserted that P's property enjoyed no relevant right to light, and that the proposed development would not in any event interfere with such a right. H's position had changed, but only to the extent of offering not to proceed with the development save on 14 days' notice. H had not acknowledged P's rights, or acknowledged that their proposed development would interfere with those rights. H's undertaking had been given without any admission, and without prejudice to H's rights. The terms of the defence and the undertaking given before the issue of proceedings could not be said to have laid to rest the very sharp dispute which existed. At best, H had put the dispute into abeyance, but reserved the right to revive it at their discretion. The declaration sought by P was directed to an issue which had not been resolved. In those circumstances, it would be just, and would serve a useful purpose, to grant declaratory relief because it would bring resolution and finality to the issue (paras 41-52).

Declaration granted in favour of claimants