By a 2:1 majority, the Court of Appeal has rejected Milebush Properties’ appeal against a High Court ruling that rejected its claim for a declaration that Tameside Metropolitan Borough Council is obliged to grant it a less restricted right of way over a service road to allow access to its commercial and residential properties at 276-280 High Street, Uxbridge, which include a covered shopping arcade.
Milebush complained that the right of way offered by Tameside included conditions limiting the times of access, barring its use as an emergency exit and restricting its use through the operation of a security gate.
However, Mummery and Jackson LJJ rejected its appeal, while Moore-Bick LJ dissented.
The case arose from the grant of planning permission, in 1991, by Hillingdon London Borough Council for a new office block, car park and service road, which was to allow access to the rear of properties fronting the High Street and
Tameside, which acquired the site in 2000 as an investment for its pension fund, accepted that, under the terms of a section 106 agreement between Hillingdon and the original applicants for planning permission, it was obliged to grant a right of way over the service road.
However, it claimed that it was not obliged to grant a right of the scope demanded by Milebush.
The service road was completed in 2005, and the office development, known as Beaufort House, was occupied in March 2008.
However, Tameside offered to grant Milebush a restricted right of way to service the rear of its property only and expressly excluded its use as an emergency exit. Use of the service road was limited to the hours of 7.30am to 6pm on weekdays, and the right of way was controlled by a security gate.
Milebush claimed that it was entitled to a reasonable right of way, and that this was an appropriate case for a court declaration.
However, the court backed High Court judge Arnold J’s decision that it would be inappropriate to grant a declaration in this case.
Referring specifically to the security gate, Mummery LJ said: “The gate involves telephoning a security guard to come and unlock the gate. That is consistent with servicing use. It has not been shown to be unreasonable in all the circumstances.”
Milebush Properties Ltd v Tameside Metropolitan Borough Council Court of Appeal (Mummery, Moore-Bick, Jackson LJJ) 17 March 2011
Mark Warwick (instructed by JE Kennedy & Co Solicitors) appeared for the appellant; Judith Jackson QC and Alan Johns (instructed by Eversheds LLP, of Manchester) appeared for the respondent.
