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Declaration

Declaration and injunction

Declaration granted despite no imminent threat of infringement of right

Pavledes v Hadjisavva
[2013] EWHC 124 (Ch)

Summary

C was entitled to a seek a declaration as to whether or not he had a right to light that would prevent D’s proposed development even though D had undertaken not to commence work without notice and that they would for the present proceed on the basis that the development would infringe C’s right.

Facts

C and D owned adjacent properties. D obtained planning permission and C asserted that the proposed development would infringe his right to light. When D threatened to commence works, C threatened an injunction. D then agreed not to start works without 14 days notice and stated that they were going to instruct their own expert to advise on the matter. C demanded an acknowledgement of his rights and when that wasn’t forthcoming, issued proceedings for a declaration as to his rights. D’s Defence admitted C’s rights (but on the contingent basis that C’s expert was correct) and stated that there was no intention to carry out any development that would infringe those rights. D then defended the action on the basis that in light of his stance, there was no basis upon which to make declaration.

Decision

David Richards J granted the declaration in C’s favour. He drew a distinction between injunctive remedies and declaratory remedies. The former required an imminent threat of infringement, not the latter. There remained a dispute as to C’s right to light. Although there was no imminent threat of infringement, D’s admission of the right was qualified by the fact that it was only an admission to the extent that C’s expert was correct.


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