Declaration – Rights of light – Defendants proposing extension to their property – Claimants alleging that development would breach rights to light enjoyed by their adjoining property – Dispute continuing for several years – Claimant bringing claim for declaration and injunction – Defendants serving defence indicating that they would not pursue development for foreseeable future – Whether claimant still entitled to declaration – Whether declaration serving useful purpose – Claim allowed
The claimants and the defendants owned adjoining properties. In 2005, the defendants obtained planning permission to build a two-storey extension at the rear of their property and a one-storey extension at the front. In 2009, a surveyor instructed by the claimants carried out a rights of light assessment; he informed the defendants that their proposed development would infringe rights of light enjoyed by the claimants’ property and invited them to undertake not to carry out that development.
In extensive correspondence on the issue between 2009 and 2012, the defendants contended that the claimants’ property did not benefit from rights of light over their property but gave various undertakings to give 14 days’ notice before carrying out certain works. In response to the threat of proceedings by the claimants, they gave a further undertaking, in more extensive terms than before, not to carry out further works to implement the development without giving 14 days prior notice.
The claimants issued a claim by which it sought a declaration as to its rights of light and an injunction restraining interference with those rights. By their defence, the defendants admitted that the claimants’ property enjoyed prescriptive rights of light over their property, on the assumption that the assessment of the claimants’ surveyor was accurate. They further accepted that the development would interfere with those rights and stated that they did not intend to carry out the development, or any other development that would interfere with the claimants’ rights of light, at least for the foreseeable future.
In light of the defendants’ admissions, the claimant no longer sought an injunction, but he continued to claim a declaration as to his rights. The defendants contended that the court should not make a declaration since it would serve no practical purpose. They contended that in a “quia timet” action, where no infringement of the claimants’ rights had yet occurred, the court should grant an injunction or make a declaration only if the defendants were threatening or intending to act unlawfully; they submitted that the claimants could not establish any imminent threat to their rights of light.
Held: The claim was allowed.
The court’s statutory jurisdiction to grant a binding declaration, under section 19 of the Senior Courts Act 1981, could be exercised whether or not any other remedy was claimed: see CPR 40.20. It was a matter for the court’s discretion whether to grant a declaration in the circumstances of any particular case, although that judicial discretion was to be exercised in accordance with general principles. There should generally be a real and present dispute between the parties as to the existence or extent of a legal right between them, although in appropriate cases the courts would make declarations as regards rights that might arise in the future or were academic as between the parties: Gouriet v Union of Post Office Workers [1978] AC 435, Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387; [2010] 1 WLR 318 and Milebush Properties Ltd v Tameside Metropolitan Borough Council [2011] EWCA Civ 270; [2012] 1 P&CR 3; [2011] 2 EGLR 143 applied. However, there was no further requirement that there should be an actual or imminent infringement of a legal right before a declaration would be made. The test of imminent threat applied to a claim for a quia timet injunction but not to a claim for a declaration, although the court could refuse a declaration on grounds of prematurity or because it would not serve a useful purpose: CIP Property (AIPT) Ltd v Transport for London [2012] EWHC 259 (Ch) applied; Draper v British Optical Association [1938] 1 All ER 115 distinguished.
A declaration could be granted where there was a real dispute between the parties and such relief would do justice to the parties and serve a useful purpose: Financial Services Authority v Rourke [2002] CP Rep 14 applied. In the instant case, there was a real dispute between the parties. That dispute had existed in early 2012 and the period leading up to it. The defendants, through their surveyor, had for some considerable time vigorously asserted that the claimants’ property enjoyed no relevant rights of light and that the proposed development would not, in any event, interfere with the alleged rights. The defendants’ position had changed thereafter only to the extent of giving various undertakings; they had given no acknowledgement of the claimants’ rights or that their proposed development would interfere with those rights. The defendants had referred to “alleged” rights and their undertakings had been given without any admission and without prejudice to the defendants’ rights. Their defence to the proceedings contained no unconditional acceptance of the claimants’ position. The terms of the defence and the undertakings had not laid to rest the very sharp dispute that had previously existed; at best, the defendants had put that dispute into abeyance but had reserved the right to revive it at their discretion. The declaration sought by the claimants was directed to a matter that had been a live issue between the parties and had not been resolved. In those circumstances, and in view of the previous history, it would be just to grant declaratory relief. Such relief serve a useful purpose since it would bring resolution and finality to the issue. Without a declaration, the claimants would be left in a position of uncertainty, with the defendants reserving the right to re-assert their prior position on 14 days’ notice given at a time of their choosing.
Alan Johns (instructed by SGH Martineau LLP) appeared for the claimants; Tom Weekes (instructed by DKLM LLP) appeared for the defendants.
Sally Dobson, barrister
Declaration – Rights of light – Defendants proposing extension to their property – Claimants alleging that development would breach rights to light enjoyed by their adjoining property – Dispute continuing for several years – Claimant bringing claim for declaration and injunction – Defendants serving defence indicating that they would not pursue development for foreseeable future – Whether claimant still entitled to declaration – Whether declaration serving useful purpose – Claim allowedThe claimants and the defendants owned adjoining properties. In 2005, the defendants obtained planning permission to build a two-storey extension at the rear of their property and a one-storey extension at the front. In 2009, a surveyor instructed by the claimants carried out a rights of light assessment; he informed the defendants that their proposed development would infringe rights of light enjoyed by the claimants’ property and invited them to undertake not to carry out that development.In extensive correspondence on the issue between 2009 and 2012, the defendants contended that the claimants’ property did not benefit from rights of light over their property but gave various undertakings to give 14 days’ notice before carrying out certain works. In response to the threat of proceedings by the claimants, they gave a further undertaking, in more extensive terms than before, not to carry out further works to implement the development without giving 14 days prior notice.The claimants issued a claim by which it sought a declaration as to its rights of light and an injunction restraining interference with those rights. By their defence, the defendants admitted that the claimants’ property enjoyed prescriptive rights of light over their property, on the assumption that the assessment of the claimants’ surveyor was accurate. They further accepted that the development would interfere with those rights and stated that they did not intend to carry out the development, or any other development that would interfere with the claimants’ rights of light, at least for the foreseeable future.In light of the defendants’ admissions, the claimant no longer sought an injunction, but he continued to claim a declaration as to his rights. The defendants contended that the court should not make a declaration since it would serve no practical purpose. They contended that in a “quia timet” action, where no infringement of the claimants’ rights had yet occurred, the court should grant an injunction or make a declaration only if the defendants were threatening or intending to act unlawfully; they submitted that the claimants could not establish any imminent threat to their rights of light.Held: The claim was allowed.The court’s statutory jurisdiction to grant a binding declaration, under section 19 of the Senior Courts Act 1981, could be exercised whether or not any other remedy was claimed: see CPR 40.20. It was a matter for the court’s discretion whether to grant a declaration in the circumstances of any particular case, although that judicial discretion was to be exercised in accordance with general principles. There should generally be a real and present dispute between the parties as to the existence or extent of a legal right between them, although in appropriate cases the courts would make declarations as regards rights that might arise in the future or were academic as between the parties: Gouriet v Union of Post Office Workers [1978] AC 435, Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387; [2010] 1 WLR 318 and Milebush Properties Ltd v Tameside Metropolitan Borough Council [2011] EWCA Civ 270; [2012] 1 P&CR 3; [2011] 2 EGLR 143 applied. However, there was no further requirement that there should be an actual or imminent infringement of a legal right before a declaration would be made. The test of imminent threat applied to a claim for a quia timet injunction but not to a claim for a declaration, although the court could refuse a declaration on grounds of prematurity or because it would not serve a useful purpose: CIP Property (AIPT) Ltd v Transport for London [2012] EWHC 259 (Ch) applied; Draper v British Optical Association [1938] 1 All ER 115 distinguished.A declaration could be granted where there was a real dispute between the parties and such relief would do justice to the parties and serve a useful purpose: Financial Services Authority v Rourke [2002] CP Rep 14 applied. In the instant case, there was a real dispute between the parties. That dispute had existed in early 2012 and the period leading up to it. The defendants, through their surveyor, had for some considerable time vigorously asserted that the claimants’ property enjoyed no relevant rights of light and that the proposed development would not, in any event, interfere with the alleged rights. The defendants’ position had changed thereafter only to the extent of giving various undertakings; they had given no acknowledgement of the claimants’ rights or that their proposed development would interfere with those rights. The defendants had referred to “alleged” rights and their undertakings had been given without any admission and without prejudice to the defendants’ rights. Their defence to the proceedings contained no unconditional acceptance of the claimants’ position. The terms of the defence and the undertakings had not laid to rest the very sharp dispute that had previously existed; at best, the defendants had put that dispute into abeyance but had reserved the right to revive it at their discretion. The declaration sought by the claimants was directed to a matter that had been a live issue between the parties and had not been resolved. In those circumstances, and in view of the previous history, it would be just to grant declaratory relief. Such relief serve a useful purpose since it would bring resolution and finality to the issue. Without a declaration, the claimants would be left in a position of uncertainty, with the defendants reserving the right to re-assert their prior position on 14 days’ notice given at a time of their choosing.Alan Johns (instructed by SGH Martineau LLP) appeared for the claimants; Tom Weekes (instructed by DKLM LLP) appeared for the defendants.Sally Dobson, barrister
