Archive for the ‘Development’ Category

Redevelopment and third party rights: premature application for declaration / injunction. Avoiding acquiescence

May 14, 2012

CIP Property (AIPT) Ltd v Transport for London ([2012] EWHC 259) concerned a proposed development above Tottenham Court Road underground station in London. Aviva owned nearby property and claimed that the proposed redevelopment would infringe the rights of light to which it was entitled (as ancient lights or easements acquired under the Prescription Act 1832 or the doctrine of lost modern grant). (Note that it was decided in China Field Ltd v Appeal Tribunal (Buildings) (No 2) that the doctrine of lost modern grant applies in Hong Kong).

Aviva had asked for an acceptance by D that it had rights of light that would be affected by the development. D refused to give this acceptance but confirmed that any redevelopment would respect third party rights. Aviva sought a declaration that it had the claimed rights of light and an injunction restraining any development that would constitute an actionable interference with them. D argued that the application was premature.

The court agreed that it was premature to entertain an application for either of the remedies sought. D did not yet even own the development site. Planning permission had only just been applied for and would take years to obtain (so the details of the development work were unknown). D had given assurances that it would respect third party rights. Aviva could not claim that a failure to give the assurances it had sought amounted to an imminent threat to its claimed rights.

As for the fear that silence might result in a later finding that it had acquiesced in any development and had lost its rights:

‘It will be up to Aviva through its solicitors to ensure that the third defendant is aware at all material times of Aviva’s concerns.’ ([39]).