Summary

Grant of an interim injunction, requiring access to be allowed in order to construct a road, refused.

Facts

The claimant and the defendant entered into an agreement in respect of the construction of a power station on the claimant's land, and the construction of a business park on an adjoining piece of land owned by the defendant. Important to the construction of the power station was the creation of an access road, including across a strip of land owned by the defendant. The agreement granted the claimant access onto the defendant's land in order to construct the road. The agreement contained various provisions and alleged pre-conditions in relation to the construction of the road. The claimant began the construction of the road, and the defendant did not object to the work. Subsequently, however, the defendant alleged that a number of the alleged pre-conditions had not been complied with, and that, as a result, the claimant had no right under the agreement to enter upon the defendant’s land in order to construct the road. The defendant then erected fences in order to prevent further work to the road from being carried out. The claimant sought an interim injunction requiring the removal of the fences, and to allow the construction of the road to continue. The claimant contended that: (a) on the true construction of the agreement, the alleged pre-conditions were not in fact pre-conditions to the existence of the licence; alternatively, (b) it had complied with alleged pre-conditions and/or the defendant had waived the right to rely upon them as conditions to the existence of a right to enter upon the defendant’s land in order to construct the road.

Held

The right of access granted by the agreement was dependent upon the claimant's compliance with provisions set out in the agreement. Unless and until those conditions had been complied with, no licence came into existence.

In respect of the claimant's alternative cases, there existed a real issue to be tried between the parties. However, if the injunction was granted, damages would not be an adequate remedy for the defendant, were it subsequently successful at trial. Conversely, were the claimant to succeed at trial, damages would be an adequate remedy for the difficulties caused to it by the defendant’s barring of its access.

Application dismissed.