Plaintiff having but not using compulsory purchase powers to carry out hospital development – Plaintiff unable to proceed without realigning road subject to defendants’ right of way and risking proceedings to enforce restrictive covenant – Defendants’ intentions undeclared – Whether plaintiff entitled to declaration excluding possibility of adverse claims for injunctive relief – Declaration granted
In 1995 the plaintiff trust acquired the site of the former Queen Elizabeth Military Hospital, Greenwich, in order to build a new national health hospital under the government private finance initiative. The site included Baker Road, which linked the hospital to the main highway, Shooters Hill Road. Under an agreement, concluded with the planning authority under section 106 of the Town and Country Planning Act 1990, the plaintiff undertook to create a new junction with Shooters Hill Road, which it could only do by realigning part of Baker Road so that it would pass, some 15 yds from its existing route, over a further piece of land (the key land) which the plaintiff had arranged to acquire without resorting to compulsory purchase.
The realignment posed two problems. Seven of the eight defendants enjoyed rights of way over Baker Road. Second, all the defendants were arguably entitled to the benefit of a restrictive covenant limiting the use of the Key land to car parking. Although none of the defendants had objected to the development, the lack of an unequivocal consent on their part had caused concern to the two government bodies charged with the financing. In April 1998 the plaintiff was informed that approval would not be given unless clearance had been obtained from the court by May 27 1998. On April 29 1998 the plaintiff issued a writ claiming a declaration to the effect that the presence of the easement and the restrictive covenant would not impede the development. The court directed an expedited trial.
Held The declaration was granted.
1. The restrictive covenant was not enforceable because the plaintiff had the power, if it so wished, to acquire the key land by compulsory purchase. The only remedy available to third parties having rights affecting the land was to claim statutory compensation: see Brownv Heathlands Mental Health National Service Trust [1996] 1 All ER 133.
2. Unless empowered by the grant, a servient owner had no right to alter the route of the easement: see Deacon v South Eastern Railway Co (1889) 61 LT 377; Gormley v Hoyt (1982) 43 NBR (2d) 75. Nevertheless, the court was satisfied that any attempt to enforce the easement would result in an award of damages in lieu of an injunction, given: (i) that no reasonable objection could be made to the realignment, which amounted to an improvement, particularly as regards safety; (ii) that no objections had been raised despite the invitation to do so; (iii) the need to achieve an object of substantial public and local importance. It was consequently unnecessary to consider whether the realignment would amount to a substantial interference with the easement.
3. A declaration that a person was not liable in an existing or possible action could be made in special circumstances: see Camilla Cotton Oil Co v Granadex [1976] 2 Lloyd’s Rep 10 per Lord Wilberforce, at p14; Patten v Burke Publishing Co Ltd [1991] 1 WLR 541. Moreover, in a rare case like the present where it was necessary to avoid a period of damaging (or indeed paralysing) uncertainty, there could be no objection to a declaration which, while not extending to the defendants’ proprietary rights, nevertheless denied him a particular remedy.
George Laurence QC and Nicholas Terras (instructed by Dibb Lupton Alsop) appeared for the plaintiffs; Joseph Harper QC (instructed by Nabarro Nathanson) appeared for the eighth defendant, Annington Property Ltd; the first to seventh defendatns did not appear and were not represented.
