Practice and procedure – Declaration – Injunction – Third defendant having right of pre-emption over station land owned by first and second defendants – Pre-emption rights entitling third defendant to acquire and develop station land in future provided certain conditions met – Claimant applying for declaration that defendants not entitled to obstruct light to its properties and injunction restraining them from doing so – Whether appropriate to grant such relief – Whether claim premature – Claim dismissed The claimant owned the freehold of two London properties that overlooked Tottenham Court Road Underground station. That station was one of several that were being redeveloped as part of the Crossrail project to construct a new high-frequency rail service linking Maidenhead and Heathrow in the west with Shenley and Abbey Wood in the east via new twin tunnels under central London. It was envisaged that the Crossrail development would be completed in 2017, after which further “oversite” development would be carried out above the various stations on the Crossrail route, including Tottenham Court Road station. The first and second defendants owned the station site while the third defendant, a developer, enjoyed a right of pre-emption over the station and the right to build above it pursuant to an agreement concluded with the secretary of state for transport in 2007. By that agreement, the third defendant was entitled to acquire such parts of the Crossrail development and the station site as the secretary of state decided to make available, provided that it satisfied certain conditions, including demonstrating that it had the necessary financial and development expertise to acquire the site and carry out an oversite development. The price payable for the site was to be determined by a valuer, after which the third defendant could decide in its absolute discretion whether to proceed. The claimant was concerned that the oversite development would infringe rights of light to its properties. In May 2011, it issued proceedings for a declaration that the defendants were not entitled to obstruct its light and an injunction restraining them from doing so. The defendants applied for summary judgment in their favour under CPR 24.2(a)(i) on the ground that the claim had no real prospect of success. They contended that the claim was premature since the oversite development could not begin until 2017 at the earliest, a planning application had only just been made and it was not certain that the third defendant would exercise its pre-emption right; moreover, it could not be predicted at such an early stage that the proposed development would substantially impact on third parties’ rights of light. Held: The claim was dismissed. (1) When deciding whether to grant a declaration, the appropriate questions were whether the claim was premature, whether the declaration would serve a useful purpose and whether the issues were sufficiently clearly defined as to be properly justiciable. Although they were properly formulated as separate considerations, those questions overlapped: Arrow Generics Ltd v Merck & Co Inc [2007] EWHC 1900 (Ch); [2008] Bus LR 487 applied. For the court to grant a quia timet injunction, there had to be an immediate threat to do something, which required the intervention of the court to prevent it: Cowley v Byas (1877) 5 Ch D 944 applied. In relation to prematurity, the rules in relation to declarations were much the same as for quia timet injunctions: Draper v British Optical Association [1938] 1 All ER 115 applied. (2) There were no grounds for making a declaration or granting an injunction against the first and second defendants. Although they owned the land that was the subject of the third defendant’s right of pre-emption, they had not themselves applied for planning permission for any oversite development in respect of Tottenham Court Road station after completion of the Crossrail project. There was no evidence that either of them had any proposals for any such development, nor was there anything in the pre-emption agreement to suggest that they had done anything by way of encouragement or acceptance to make themselves liable for the consequences of any development undertaken by the third defendant with regard to any right of light enjoyed by the claimant. In those circumstances, there were no grounds on which it could be appropriate to make any declaration against either of them in the form sought or in any similar form. Nor was it appropriate to grant an injunction, since the first and second defendants had made no threat to infringe any right to light that the claimant might enjoy, the present Crossrail development did not impinge on any such rights and the first and second defendants had no proposals for any oversite development that did impinge on those rights. (3) It would be premature to grant either a declaration or an injunction against the third defendant. It was relevant in that regard that the third defendant did not presently own the relevant land and its future ownership depended on satisfying certain conditions and deciding in its own absolute discretion that it wished to exercise its pre-emption right in the light of all relevant circumstances. Further, satisfaction of those conditions and completion of the procedure for the exercise of the pre-emption agreement could not occur before 2017. Moreover, there was no extant planning permission for any oversite development and it would take time to obtain such permission and to satisfy any conditions that might be imposed on the grant. In addition, the third defendant had made it plain that it would not proceed with any oversite development without regard to the rights of third parties. The claim for a declaration was misconceived because it was premature and would serve no useful purpose now. As to an injunction, there was no immediate threat that the third defendant would infringe the claimant’s rights of light. The claimant had no prospect of succeeding in its claims against any of the defendants and those claims were dismissed accordingly. Katharine Holland QC (instructed by Pinsent Masons LLP) appeared for the claimant; J McGhee QC (instructed by Eversheds LLP for the first and second defendants and Berwin Leighton Paisner LLP for the third defendant) appeared for the defendants. Sally Dobson, barrister
CIP Property (AIPT) Ltd v Transport for London and others
Practice and procedure – Declaration – Injunction – Third defendant having right of pre-emption over station land owned by first and second defendants – Pre-emption rights entitling third defendant to acquire and develop station land in future provided certain conditions met – Claimant applying for declaration that defendants not entitled to obstruct light to its properties and injunction restraining them from doing so – Whether appropriate to grant such relief – Whether claim premature – Claim dismissed The claimant owned the freehold of two London properties that overlooked Tottenham Court Road Underground station. That station was one of several that were being redeveloped as part of the Crossrail project to construct a new high-frequency rail service linking Maidenhead and Heathrow in the west with Shenley and Abbey Wood in the east via new twin tunnels under central London. It was envisaged that the Crossrail development would be completed in 2017, after which further “oversite” development would be carried out above the various stations on the Crossrail route, including Tottenham Court Road station. The first and second defendants owned the station site while the third defendant, a developer, enjoyed a right of pre-emption over the station and the right to build above it pursuant to an agreement concluded with the secretary of state for transport in 2007. By that agreement, the third defendant was entitled to acquire such parts of the Crossrail development and the station site as the secretary of state decided to make available, provided that it satisfied certain conditions, including demonstrating that it had the necessary financial and development expertise to acquire the site and carry out an oversite development. The price payable for the site was to be determined by a valuer, after which the third defendant could decide in its absolute discretion whether to proceed. The claimant was concerned that the oversite development would infringe rights of light to its properties. In May 2011, it issued proceedings for a declaration that the defendants were not entitled to obstruct its light and an injunction restraining them from doing so. The defendants applied for summary judgment in their favour under CPR 24.2(a)(i) on the ground that the claim had no real prospect of success. They contended that the claim was premature since the oversite development could not begin until 2017 at the earliest, a planning application had only just been made and it was not certain that the third defendant would exercise its pre-emption right; moreover, it could not be predicted at such an early stage that the proposed development would substantially impact on third parties’ rights of light. Held: The claim was dismissed. (1) When deciding whether to grant a declaration, the appropriate questions were whether the claim was premature, whether the declaration would serve a useful purpose and whether the issues were sufficiently clearly defined as to be properly justiciable. Although they were properly formulated as separate considerations, those questions overlapped: Arrow Generics Ltd v Merck & Co Inc [2007] EWHC 1900 (Ch); [2008] Bus LR 487 applied. For the court to grant a quia timet injunction, there had to be an immediate threat to do something, which required the intervention of the court to prevent it: Cowley v Byas (1877) 5 Ch D 944 applied. In relation to prematurity, the rules in relation to declarations were much the same as for quia timet injunctions: Draper v British Optical Association [1938] 1 All ER 115 applied. (2) There were no grounds for making a declaration or granting an injunction against the first and second defendants. Although they owned the land that was the subject of the third defendant’s right of pre-emption, they had not themselves applied for planning permission for any oversite development in respect of Tottenham Court Road station after completion of the Crossrail project. There was no evidence that either of them had any proposals for any such development, nor was there anything in the pre-emption agreement to suggest that they had done anything by way of encouragement or acceptance to make themselves liable for the consequences of any development undertaken by the third defendant with regard to any right of light enjoyed by the claimant. In those circumstances, there were no grounds on which it could be appropriate to make any declaration against either of them in the form sought or in any similar form. Nor was it appropriate to grant an injunction, since the first and second defendants had made no threat to infringe any right to light that the claimant might enjoy, the present Crossrail development did not impinge on any such rights and the first and second defendants had no proposals for any oversite development that did impinge on those rights. (3) It would be premature to grant either a declaration or an injunction against the third defendant. It was relevant in that regard that the third defendant did not presently own the relevant land and its future ownership depended on satisfying certain conditions and deciding in its own absolute discretion that it wished to exercise its pre-emption right in the light of all relevant circumstances. Further, satisfaction of those conditions and completion of the procedure for the exercise of the pre-emption agreement could not occur before 2017. Moreover, there was no extant planning permission for any oversite development and it would take time to obtain such permission and to satisfy any conditions that might be imposed on the grant. In addition, the third defendant had made it plain that it would not proceed with any oversite development without regard to the rights of third parties. The claim for a declaration was misconceived because it was premature and would serve no useful purpose now. As to an injunction, there was no immediate threat that the third defendant would infringe the claimant’s rights of light. The claimant had no prospect of succeeding in its claims against any of the defendants and those claims were dismissed accordingly. Katharine Holland QC (instructed by Pinsent Masons LLP) appeared for the claimant; J McGhee QC (instructed by Eversheds LLP for the first and second defendants and Berwin Leighton Paisner LLP for the third defendant) appeared for the defendants. Sally Dobson, barrister
