Cip Property (Aipt) Ltd v Transport for London and Others
| Jurisdiction | England & Wales |
| Judge | THE CHANCELLOR |
| Judgment Date | 25 January 2012 |
| Neutral Citation | [2012] EWHC 259 (Ch) |
| Docket Number | Claim No: HC11C01772 |
| Court | Chancery Division |
| Date | 25 January 2012 |
[2012] EWHC 259 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
The Chancellor of the High Court
Claim No: HC11C01772
MISS KATHERINE HOLLAND QC (Instructed by Messrs Pinsent Masons LLP) appeared on behalf of the Claimant
MR JOHN McGHEE QC (Instructed by Messrs Eversheds LLP for the First and Second Defendants and Messrs Berwin Leighton Paisner LLP for the Third Defendant) appeared on behalf of the Defendants
Approved Judgment
Wednesday, 25 January 2012
This is an application by all three defendants for summary judgment under Civil Procedure Rule 24.2(a)(i) dismissing this claim against them on the ground that the claimant has no real prospect of succeeding on its claim against any of them. Transport for London and London Underground Limited, the first two defendants, together own the land on the south-west corner of Oxford Street and Charing Cross Road, comprising amongst other premises the Tottenham Court Road Underground Station. It is being redeveloped as part of the Crossrail project. It is envisaged that when that development has been completed in 2017 there will then be carried out what are called oversite developments above the various Underground stations on the Crossrail route. Tottenham Court Road Underground Station is one of them and it is envisaged that the third defendant, Derwent Valley Central Limited, may be the developer.
The claimant is a limited company in the Aviva Investors Group. It is the nominee of Aviva to be the trustee of its Aviva Investors Property Trust, an authorised unit trust promoted by Aviva, and for simplicity I will refer to the claimant as Aviva, although of course it is not. In that capacity it is the freehold owner of 20 Soho Square and 5 Falconberg Mews. Those properties overlook the Tottenham Court Road tube station and they are subject to five occupational leases. Aviva claims that those properties enjoy ancient lights and/or easements of light under the Prescription Act 1832 or the doctrine of lost modern grant.
Transport for London was created as a statutory corporation under the Greater London Authority Act 1999. Its wholly owned subsidiary, Transport Trading Limited, is the holding company for the second defendant, London Underground Limited and Crossrail Limited. In 2006 the Crossrail bill was introduced into the House of Commons to enable the compulsory purchase of land required for the Crossrail project. That project is the provision of a new high frequency railway transport system, linking Maidenhead and Heathrow in the west with Shenfield and Abbey Wood in the east, via new twin tunnels under Central London.
The third defendant, then the owner of certain land to be acquired by Crossrail, petitioned against the bill. Its opposition was compromised by an agreement made on 19 January 2007 between the Secretary of State for Transport and itself, conferring on the third defendant a right of pre-emption over the Tottenham Court Road Underground station and the right to build above it. The agreement contains a number of relevant provisions, which I will summarise as follows.
First, by clause 5 it confers on the third defendant a right of pre-emption to acquire such parts of the Crossrail development of the Tottenham Court Road Underground Station site as the Secretary of State decides to make available. Second, clause 4 contains a number of preconditions for the exercise of the right of pre-emption by the third defendant, including demonstrating to the satisfaction of the Secretary of State that it has the necessary financial and development expertise to acquire that site and to develop it by means of an oversite development. Third, clause 6 contains 13 subparagraphs setting out what is described as the pre-emption procedure. I can summarise the pre-emption procedure as follows.
First, the Secretary of State determines the extent of the property and the estate, freehold or leasehold, in it which is to be subject to the right of pre-emption and prepares the necessary transaction documents. Second, the Secretary of State gives to the third defendant 12 months' notice of the anticipated practical completion date of the Crossrail project together with the transaction documents it has prepared. Third, assuming the third defendant agrees with the transaction documents, and there is a procedure for dealing with the position if it does not, the transaction is then referred to a valuer to ascertain the market value. Fourth, six months before the anticipated date for practical completion of the Crossrail project, the Secretary of State is required to notify the third defendant of that valuation and the amount. Fifth, if both the value and the transaction documents are agreed, then in "its absolute discretion" the third defendant may exercise the right of pre-emption. If there is no such agreement then the Secretary of State may then sell the property on the terms of its version of the transaction documents in the open market.
Shortly thereafter the third defendant commenced work on a scheme involving the future oversite development of the Tottenham Court Road Station site. That development involved all the defendants and the local planning authority, the Westminster City Council. In April 2007 the third defendant engaged Drivers Jonas as its rights to light consultants. Between March 2008 and January 2009 the advisers for Aviva and for the third defendant discussed the project in some detail. The Crossrail Act received the royal assent in July 2008. It thereby conferred the necessary authority on Crossrail and others to carry out the Crossrail project. Section 36 and schedule 12 to the Crossrail Act enabled the Secretary of State to make schemes for the transfer of property vested in him to other persons. By a transfer scheme made by the Secretary of State on 3 December 2008 and a notice thereunder dated 2 November 2009, the Secretary of State transferred to Transport for London (and it may be as to part to London Underground Limited, but it is not clear) his interest in all the properties subject to the pre-emption agreement. Thus Transport for London, and to some extent perhaps London Underground Limited, succeeded to the title of the Secretary of State to the property the subject matter of the pre-emption agreement.
On 24 October 2008 there was a meeting between the advisers for Aviva and for the third defendant. In consequence of that, the third defendant was informed that Aviva was generally supportive of their proposed redevelopment but was likely to claim prescriptive rights to light to its own properties. Indeed on 5 January 2009 in an e-mail of that date Aviva did duly claim prescriptive rights to light for their buildings at 20 Soho Square and 5 Falconberg Mews. They told the third defendant that they would seek to protect their position regarding those rights in relation to any development that the third defendant might propose. On 7 August 2009 the advisers for the third defendant suggested to Aviva that at a forthcoming meeting the third defendant might consider terms on which to buy out the rights to light that Aviva claimed. Whether or not the meeting took place, there appears to have been without prejudice negotiations then and thereafter. As far as the court is concerned, there was then a gap of some 20 months in the relevant events leading up to these proceedings.
The next such event is on 15 and 16 April 2011 when letters before action were sent by the solicitors for Aviva. The first and second defendants got one and the third defendant got another. The letter set out who the solicitors acted for and then continues in these terms:
"Please treat this as a letter before claim giving you notice of our client's intention to commence Court proceedings against you as we have identified you as being either the registered proprietors of land neighbouring the property at 1 Oxford Street [then the address is completed] or as having a registered interest in 1 Oxford Street that is registered at the Land Registry.
"We understand that following the completion of the Crossrail improvement works to Tottenham Court Road Station in approximately 2016 it is intended to construct an over site development at 1 Oxford Street (' Proposed Development'). Our inquiries to the Land Registry have identified you as having the following interests in the Proposed Development [and they are then set out at some length]."
Then after a reference to the third defendant the letter continues:
"You may be aware that Messrs Drivers Jonas Deloitte, acting on behalf of [the third defendant], have supplied our client's surveyors, Messrs Gordon Ingram Associates, with plans and specifications of the Proposed Development.
"From our review of the information and documents that are currently available it is clear that:
1. The windows of the property that overlook the Proposed Development have enjoyed uninterrupted access to light for a period of time in excess of 20 years and therefore have acquired the benefit of rights of light pursuant to section 3 of the Prescription Act 1832;
2. our client, as the current registered proprietor of the Property, has a right of light; and
3. the Proposed Development will substantially interfere with our client's right of light.
"Accordingly, and by no later than 4:00pm on Friday 6 May 2011 (which we consider is a reasonable period of time to take account of the...
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