PP 2013/30 Landowners would be well-advised to avoid premature proceedings for infringements of their rights to light

Not so long ago, the decision in HXRUK (II) (CHC) Ltd v Heaney [2010] 3 EGLR 15 highlighted the potency of rights of light claims and the importance of resolving any potential disputes before development begins. More recently, CIP Property (AIPT) Ltd v Transport for London [2012] EWHC 259 (Ch) demonstrates the risks of escalating costly rights of light disputes prematurely. The owner of property close to Tottenham underground station issued the proceedings because it was concerned that a proposed development above the station, forming part of the Crossrail project, would infringe its rights of light. It brought its claim against the owners of the site and a developer that had a right of pre-emption over the station and an entitlement, upon exercising that right, to build above it. The landowner sought two remedies; a declaration to the effect that the defendants were not entitled to obstruct its rights of light, and a “quia timet” injunction to restrain them from doing so. The developer had worked up plans for the development that it was proposing, but did not apply for planning permission until after the proceedings were issued. Its planning application had not been determined when the case was heard, and the conditions in the pre-emption agreement could not be satisfied and completion of the procedure for acquiring the property could not occur for at least five years. Consequently, the defendants argued that the proceedings were misconceived and premature, especially as they had stated that they had no intention of ignoring the landowner’s rights. The landowner claimed to be entitled to a remedy because there was an existing dispute about its rights to light which, following the failure of without prejudice negotiations, needed to be determined. It pointed to the fact that the developer’s plans had not changed, despite being made aware of its objections to the proposals, and suggested that the development would have to be reduced from 275,000 sq ft to 133,600 sq ft to avoid infringing its rights of light. This would have a substantial impact on the scheme and might even deprive it of commercial viability. The Chancellor dismissed the proceedings against the site owners in a few short sentences. They had not applied for planning permission. They were not proposing to carry out the development themselves and there was nothing in the pre-emption agreement to render them liable for the impact of any development on any neighbouring rights of light. The landowner’s case against the developer suffered a similar fate because there was no immediate threat that the developer would infringe the landowner’s rights of light. The action for a declaration did not serve a useful purpose because the development might change substantially during the next five years, and the claim for a quia timet injunction was also misconceived because there could be no infringement of the landowner’s rights to light until 2017 at the earliest. In the meantime, so long as it kept the developer aware at all material times of its concerns, the landowner could not be accused of having acquiesced in the developer’s proposals.    Allyson Colby, property law consultant