In recent years the courts have considered complaints about infringements of rights of light both before and after the infringement has occurred. HXRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch) confirms that the court can make a declaration that rights of light have been infringed and grant a mandatory injunction requiring the removal of part of a newly constructed building, if the injured party has made its protests clear and the developer has carried on regardless.
At the other end of the spectrum, CIP Property (AIPT) Ltd v Transport for London [2012] EWHC 259 (Ch) establishes that the court will refuse to make a declaration and deny the complainant a “quia timet” injunction if proceedings are brought prematurely. Pavledes v Hadjisavva [2013] EWHC 124 (Ch) adds to the jurisprudence in this area.
The defendant had obtained planning permission to extend his property, which caused a lengthy dispute with his neighbour about the impact that this would have on his building. The defendant rejected any suggestion that it would interfere with any rights of light and, in due course, gave 14 days’ notice of his intention to proceed with the work.
Following strong objections, the defendant agreed to take further advice and promised not to proceed without giving a further 14 days’ notice. However, his promise was made expressly without prejudice to his rights and he refused to make any admissions. At this point, his neighbour decided to seek assistance from the court.
The defendant asked the court to dismiss the proceedings on the ground that they were premature. He finally admitted that his neighbour did enjoy prescriptive rights of light over his property and also accepted that the proposed development would interfere with them, if the advice that his neighbour had received was correct. He also arranged to let his property until 2017.
Had he done enough to diffuse the situation and make it inappropriate for the court to make a declaration – thereby depriving his neighbour of an order for costs against him? The defendant suggested that there must be an actual infringement, or the threat of an imminent infringement, for the court to make a declaration. The judge disagreed; the defendant was citing the requirements that must be satisfied to obtain a “quia timet” injunction to restrain parties from undertaking work.
The decision in CIP illustrates that the court may refuse a declaration on grounds of prematurity, or because it would not serve a useful purpose. The question was: was it appropriate for the court to exercise its discretion to make a declaration in this case?
There was clearly a very real dispute between the parties, which remained unresolved. The defendant was trying to reserve the right to revive it, at his discretion, on short notice, at a time of his choosing. The judge accepted that the defendant had granted a lease to a third party, but noted that he could also agree an early surrender.
This case was very different to CIP and there was no good reason to defer a decision. A declaration would do justice between the parties; it would provide finality and would enable both parties to know exactly where they stood.
Allyson Colby, property law consultant
