Open-access content Monday 30th April 2012
The tort of private nuisance upholds the right of an individual to enjoy their land however Beverley Vara looks at what happens if a party has obtained planning permission or a statutory permit to carry out work deemed a nuisance.
03 May 2012
A right to light is a form of legal easement enjoyed by a property not to have the level of light received by its windows restricted beyond a certain threshold. The right is usually established by demonstrating that the property has had the benefit of over 20 years of uninterrupted access to light, and can be acquired under the Prescription Act 1832 or under the common law. In densely populated conurbations, right-to-light disputes are increasing.
CIP Property (AIPT) Limited (the claimant) owns 20 Soho Square and 5 Falconberg Mews, which overlook Tottenham Court Road Underground Station (the station). Transport for London (the first defendant) and London Underground Limited (the second defendant) together own the station, which is being redeveloped as part of the Crossrail Project. Derwent Valley Central Ltd (the third defendant) has the right to develop the site above the station (the development) following completion of Crossrail in 2017, pursuant to a conditional pre-emption agreement with the Secretary of State for Transport.
Between 2007 and 2009, plans on the development began and the third defendant held talks with Westminster City Council and the claimant. In April 2011, the claimant sent letters before action to the defendants seeking confirmation that the site would not infringe its rights. In May 2011, the claimant commenced proceedings for a declaration that the defendants were not entitled to obstruct its rights to light and an injunction to restrain them from doing so.
In November 2011, the defendants jointly applied for summary judgment contending that the claim should be dismissed because it had no prospects of success.
The defendants submitted that the claimant's case was bound to fail on several grounds. First, the third defendant did not yet own the site and might never do so as a result of the conditionality in the pre-emption agreement. Second, the first and second defendant, who owned the relevant land, did not have any plans for the land that might infringe the claimant's rights. Third, no planning permission had been granted in relation to any potentially infringing works. Fourth, there was no immediate threat that would justify the grant of the remedies sought.
The defendants' expert witness argued the development was "embryonic", the planning process was lengthy and allowed for alterations to be made, and the claim was premature.
The claimant argued that summary dismissal was not appropriate. First, there was a present dispute requiring adjudication, which was that the defendants had submitted that they were going to contest the whole of the claim including the assertion of rights to light.
Second, while the development was not in final form, its scope had not been altered since the defendants had learned of the claimant's rights to light in 2009. Also, they argued that the changes necessary to prevent the claimant's light from being obstructed would require a reduction of the development of over 13,099 square metres (141,000 square feet), which might affect its commercial viability.
In addition, as pre-trial negotiations had not been fruitful, the court should intervene to prevent time and money being spent on a development that might flounder on rights to light claims. Finally, the claimant was concerned that the defendants would argue it had acquiesced to its plans.
The judge ruled in favour of the defendants, granting summary judgment and dismissing the claimant's action.
With regards to the first and second defendants, the claimant's claim had no prospects of success. While they owned the overground site, they had no proposals for developing it, they had not threatened to infringe the claimant's rights to light, nor had they accepted that the third defendant could do so. There were therefore no grounds on which to grant the remedies sought.
The judge held that the claim against the third defendant was misconceived and that there was no immediate threat that could justify the award of an injunction or declaration. It did not own the land, the pre-emption agreement was conditional, and the earliest the development could infringe the claimant's rights was 2017. Given this timing, it was impossible to outline the extent of the development, particularly given the intervening period.
Injunctions or declarations sought prematurely will not be granted. The judge in this case said he suspected the "real reason" for the claimant's premature actions was fear of the defendants alleging the defence of acquiescence in five years' time
Landowners wishing to assert their rights of light need not issue proceedings in order to protect their position. As long as they communicate concerns to the developer formally, a developer could not argue that the landowner had acquiesced to their rights being infringed.
Beverley Vara is a partner and head of real estate litigation at solicitors Allen & Overy LLP