Summary

A claimant who wished to enforce a right of way granted to it by virtue of a clause in an agreement under the Town and Country Planning Act 1990 s.106, was not entitled to a declaration as to the true construction of the clause. The grant of such a declaration would be inconsistent with the local planning authority's power to decide whether or not to enforce the planning obligation.

Facts

The claimant freeholder (M) sought a declaration that the first defendant local authority (T) was obliged to grant it a right of way over a service road. T's predecessor in title had been granted planning permission for a development near to M's properties. The development site was earmarked for pedestrianisation, and the second defendant local planning authority (H) had attached conditions to the permission so as to not prejudice the planned works. The developer entered into an agreement with H under which it covenanted, in clause 3.5, to grant M rights of way over a service road at the rear of his properties for the purpose of "obtaining access for servicing the rear of those properties only". Clause 3.5.2 stipulated that, following completion of the pedestrianisation works, the rights would be exercisable at all reasonable times and upon such reasonable terms as could be imposed by the developer. Clause 3.5.3.2 permitted the developer to control access to the service road by the operation of security barriers. T later acquired the freehold title to the development and, following completion of the pedestrianisation works, proposed to grant M a right of way subject to the following conditions: (i) the right of way could not be used as an emergency exit or for any other purpose; (ii) the right of way could only be used between the hours of 07:30 and 18:00 Monday to Friday; (iii) access to the service road would be controlled by the operation by a security guard of a padlocked gate. M, who had wanted to use the right of way as an emergency exit for one of its properties, argued that T was not entitled to impose the proposed conditions. It also argued that even though it was not party to the agreement, the court should exercise its discretion to grant declaratory relief as to the construction of clause 3.5 as it was directly affected by the interpretation placed on the agreement. T and H argued that the proposed conditions were reasonable. They further argued that it was not appropriate to grant declaratory relief as the Town and Country Planning Act 1990 s.106 did not provide for enforcement by a beneficiary of a planning obligation. T also argued that M had not signed the agreement granting it the right of way and therefore the agreement was void for failure to comply with the Law of Property (Miscellaneous Provisions) Act 1989 s.2.

Held

(1) Reasonableness was an objective test and had to be determined in light of the intention of the parties to the original agreement, Davill v Pull (2009) EWCA Civ 1309, (2010) 1 P & CR 23 applied. In relation to the first condition, Clause 3.5 expressly stated that the right of way had been granted "for the purpose of obtaining access for servicing the rear of the properties only". To extend such use for the purpose of an emergency exit would be inconsistent with the intention of the parties which was to compensate M for the loss of vehicular access following the pedestrianisation works. Furthermore, use for the purpose of an emergency exit did not fall within the natural meaning of "servicing" and was inconsistent with the limitations T was permitted to impose, namely control of the service road with security barriers and use at "reasonable times". However, "access for servicing" would extend to access for repair and maintenance of the properties. The second condition limited the times during which the right of way could be exercised; that was permissible if it was consistent with the provision in clause 3.5.2 that the rights be exercisable "at all reasonable times". What was a reasonable time was a question of fact and was a matter for expert determination. Similarly, the third condition was permissible if it was consistent with clause 3.5.3.2. Padlocked gates could be regarded as "security barriers", but whether the arrangements for opening the gate were reasonable was a question of fact to be determined by experts. (2) It was well established that the decision as to whether to enforce a planning obligation was one for the local planning authority having regard to its planning objectives. It was a public law function which was only challengeable by judicial review, Attorney General ex rel Scotland v Barratt Manchester Ltd (1992) 63 P & CR 179 CA (Civ Div) applied. Accordingly, in the instant case H's power to make such decisions was inconsistent with it being a proper exercise of the court's discretion to grant a declaration as to the construction of clause 3.5, Rolls-Royce Plc v Unite the Union (2009) EWCA Civ 387, (2010) 1 WLR 318 applied. It would be a pointless exercise for the court to grant M a declaration against T in circumstances where, even if M was right on the construction of clause 3.5, H would still retain a discretion to decide not to enforce, or to vary clause 3.5. Accordingly, M was not entitled to the declaration it sought. (3) To interpret s.2 of the 1989 Act as invalidating s.106 agreements which benefitted third parties such as M, would substantially frustrate the statutory scheme contained in s.106 of the 1990 Act. That could not have been the legislative intention, RG Kensington Management Co Ltd v Hutchinson IDH Ltd (2002) EWHC 1180 (Ch), (2003) 2 P & CR 13 applied and Jelson Ltd v Derby City Council (1999) 4 PLR 11 Ch D not applied.

Declaration not granted