Planning permission – Section 106 agreement requiring grant of rights of way over development site to owners of adjoining properties – Court refusing declaration as to obligation to grant right of way and as to proper construction of section 106 agreement – Whether grant of declaratory relief appropriate where appellant not party to section 106 agreement – Appeal dismissed
In 2000, the respondent council acquired a site in Uxbridge as an investment for their pension fund. The local planning authority (LPA) had granted planning permission for an office development on that site with associated car parking. The appellant owned properties on the High Street close to the site. The planning permission contained a condition that required the construction of a service road to provide rear servicing to properties on the south side of the High Street, so as not to prejudice its future pedestrianisation. A principal agreement and amending supplemental agreement, into which the respondent’s predecessors in title had entered under section 106 of the Town and Country Planning Act 1990, contained provisions relating to the service road. Clause 3.5 of the agreement, as amended, required the developer to grant a right of way over the service road to “authorised properties”, including the appellant’s property, to provide access for servicing the rear of those premises; the right was to be exercisable at all reasonable times on such reasonable terms as the developer might impose.
In 2009, the respondents wrote to the appellant, proposing to grant a right of way limited by certain conditions, including the times of access and the use of a security gate. The appellant objected to the conditions and applied for declarations that the respondents were obliged to grant a right of way pursuant to clause 3.5 and as to the proper construction.
The High Court rejected the appellant’s construction of clause 3.5. It further concluded that it would not in any event be appropriate to grant declaratory relief to the appellant under CPR 40.20: see [2010] EWHC 1022 (Ch); [2010] 2 EGLR 93; [2010] 30 EG 64. The appellant appealed. The LPA had been joined as a party to the original proceedings but did not take part in the appeal.
Held: The appeal was dismissed.
(1) The discretion to grant a declaration covered a wide range of cases and might be granted in private law proceedings relating to the disputed construction of a document that affected a claimant even though that claimant was not a party to it. However, in these private law proceedings, and in the circumstances of the case, the judge had been entitled to conclude that it was not appropriate to grant a declaration to the appellant in the form sought or in any other form.
However, the court had not been persuaded that the judge had erred in principle or that he had been wrong or that there were grounds for disturbing his decision to refuse a declaration. He had correctly applied the principles governing declaratory relief: Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387; [2010] 1 WLR 318 applied. He had also considered the appellant’s submission that although it was not a party to the principal agreement and had no cause of action against the respondents, it was directly affected by the issue of the construction of clause 3.5.
(2) A private action for a declaration was an inappropriate proceeding by the appellant. It was an attempt, to which the court should not lend its assistance, to secure via the respondents, against which the appellant had no enforceable private rights, a right of way over the service road for the purposes of a pedestrian emergency exit without regard for the LPA’s planning objectives.
This was not a private law dispute concerning the construction of a deed for the grant of a private right of way, or its legal enforcement of an agreement, or even about the nature and extent of an easement: it concerned the planning objectives of a planning authority and the performance of planning obligations on which the decisions resting with that authority were paramount. Although the matters affected the appellant, they were public law planning matters that, should they be decided by a court, ought to be decided in judicial review proceedings to which the LPA was a party because they were the planning authority and the enforcing party to the deed with the original developers from whom the respondents derived title. The LPA were the only party entitled to enforce the principal agreement. Their planning decisions and actions were challengeable by judicial review to ensure that the proper procedures had been followed and that the relevant decisions had been lawfully made: Attorney-General ex rel Scotland v Barratt Manchester Ltd (1992) 63 P&CR 179. In judicial review proceedings by the appellant, a declaration on the meaning and effect of clause 3.5 could be made; the LPA would be a party to the proceedings and would be bound by the result, as would the respondents, joined as an interested party.
(3) The judge’s construction of clause 3.5 of the principal agreement was clearly correct. The context of the principal agreement was important in the construction of clause 3.5. The pedestrianisation of the High Street created the need for alternative vehicular access for servicing the rear of properties that fronted it. The provision of an emergency pedestrian exit at the rear of the authorised properties had nothing to do with servicing the rear of the properties and fell outside clause 3.5. Moreover, the operation of a security gate to control access to the service road was consistent with servicing use. It had not been shown to be unreasonable in all the circumstances and any dispute concerning the reasonableness of the provision had to be subject to expert determination. The appellant’s complaint that it was not a party to the principal agreement containing the expert determination procedure indicated how inappropriate it was for it to be seeking relief against the respondents in a private law action for the construction of a planning obligation in a deed to which it was not a party.
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 respondents.
Eileen O’Grady, barrister
