Summary

A dispute about the enforcement of rights under an agreement under the Town and Country Planning Act 1990 s.106, if it was to be decided by a court, ought to be decided in judicial review proceedings to which the local planning authority was a party.

Facts

The appellant company (M) appealed against a decision ((2010) EWHC 1022 (Ch), (2010) 2 EGLR 93) dismissing its claim for declarations in respect of the rights of way referred to in an agreement under the Town and Country Planning Act 1990 s.106. The case arose from the pedestrianisation of Uxbridge High Street where M owned properties used for commercial and residential purposes including a covered shopping arcade. The land in question was situated at the rear of those properties. The local planning authority (H) had entered into a s.106 agreement with the developers of a freehold office development on the site. A condition of the planning permission required the construction of a service road. The s.106 agreement provided that any dispute between the parties should be decided by a chartered surveyor acting as an expert. Clause 3.5 of the agreement provided for the grant of a right of way over the service road in favour of M's property. The site had then been acquired by a second local authority (T) as an investment for its pension fund. M's case was that the right of way to be granted under clause 3.5 covered a pedestrian emergency exit from the rear of its properties. T was willing to grant a right of way over the service road to M but only in more limited terms. M brought private law proceedings against T and H for declarations that T was obliged to grant to M the rights of way referred to in clause 3.5 of the agreement and as to the extent of the rights of way. The judge rejected the construction of clause 3.5 put forward by M and further held that s.106 provided for the enforcement of planning obligations at the instance of the local planning authority and not by a non-party beneficiary of the planning obligation, as M claimed to be, and that there would be no point in granting a declaration when H retained a discretion to vary or not to enforce clause 3.5.

Held

(Moore-Bick LJ dissenting in part) (1) The discretion to grant a declaration covered a wide range of cases. The authorities showed that it could be granted in private law proceedings about the disputed construction of a document affecting the claimant, even though the claimant was not a party to it. However, there was no error of principle by the judge nor was he plainly wrong nor were there any grounds for disturbing his decision to refuse a declaration. He directed himself properly in law on the principles governing declaratory relief, Rolls-Royce Plc v Unite the Union (2009) EWCA Civ 387, (2010) 1 WLR 318 considered. He took into account all of the factors relevant to the exercise of his discretion (see paras 44-47). (2) The most important factor was that the instant case was, in reality, not a private law dispute about the construction of a deed for the grant of a private right of way, or about the legal enforcement of an agreement, or about the nature and extent of an easement: it was about the planning objectives of a planning authority and about the performance of planning obligations. Those were matters affecting M, but they were public law planning matters which, if they were to be decided by a court at all, ought to be decided in judicial review proceedings to which H was a party as the planning authority and the significant enforcing party to the deed with the original developers from whom T derived title. H, as the planning authority, was the only person entitled to enforce the agreement. Its planning decisions and actions were challengeable by judicial review, Attorney General ex rel Scotland v Barratt Manchester Ltd (1992) 63 P & CR 179 CA (Civ Div) considered. In judicial review proceedings by M a declaration on the meaning and effect of clause 3.5 could be made; H would be a party to the proceedings; it would be bound by the result, as would T, who could be joined as an interested party (paras 47-52). (3) The judge was right that the provision of an emergency pedestrian exit at the rear of the M's properties had nothing to do with servicing the rear of the properties and was outside the contemplation of clause 3.5 of the agreement. He was also right that other matters of dispute were covered by the provision in the agreement for expert determination (paras 62-63). (4) (Per Moore-Bick LJ) There were good reasons to decide the issues of construction raised in the instant case and the judge was right to entertain the proceedings. He decided the issues of construction correctly. However, he was wrong to hold that no useful purpose would be served by granting declarations giving formal effect to his decisions and in so far as his refusal to do so involved an exercise of discretion it was flawed as a result of a failure to recognise and apply the correct principles of law.