Timing Is Everything And Patience Is Key

A lesson in waiting for a right to crystallise rather than commencing premature and toothless proceedings was handed down by the High Court in the rights to light case of CIP Property (AIPT) Ltd -v- Transport For London, London Underground Ltd, Derwent Valley Central Ltd [2012] EWHC 259

The Facts

The Second and Third Defendants to the action, Transport for London ("TFL") and London Underground Limited ("London Underground") together owned the land on the south-west corner of Oxford Street and Charing Cross Road comprising, amongst other premises, Tottenham Court Road Underground Station ("the Station").

The Station is being redeveloped as part of the Crossrail project and it is envisaged that, once the development has been completed in 2017, there will then be oversite developments across a range of Underground stations which will include the Station. The third defendant, Derwent Valley Central Ltd ("Derwent"), may be appointed as the developer for these oversite developments.

The Claimant, CIP Property (AIPT) Ltd ("CIP"), is a limited company in the Aviva Investors Group and is the nominee of Aviva to be the trustee of its Aviva Investors Property Trust. In that capacity, CIP is the freehold owner of 20 Soho Square and 5 Falconberg Mews ("the Properties"). The Properties overlook the Station and are subject to five occupational leases. CIP claimed that the Properties benefitted from one or more of ancient rights of light, easements of light acquired by prescription and the doctrine of lost modern grant.

TFL's wholly owned subsidiary, Transport Trading Ltd, was at the relevant time the holding company for London Underground and Crossrail Limited ("Crossrail"). Crossrail is a special purpose vehicle created for the delivery of the Crossrail project.

As a consequence of the Crossrail project, various parcels of land across the South East were compulsorily acquired by Crossrail and one such parcel of land was owned by Derwent. At the time of the bill supporting the Crossrail project passing through Parliament, Derwent raised an objection to it. That objection was ultimately compromised by a compromise agreement that granted Derwent a right of pre-emption over the Station and the right to build above it.

These rights came with significant pre-conditions that included, amongst other things, demonstrating to the Secretary of State for Transport that it has the necessary financial and development expertise to acquire the site and to develop it by means of an oversite. There was also a detailed and complicated mechanism surrounding the exercise of the rights that would take a significant amount of time to fulfil and, even...