London Borough of Waltham Forest v Oakmesh Ltd & Anor

A party who has invoked a statutory procedure on the footing that a planning obligation is enforceable may be prevented from later challenging the obligation’s validity where that challenge would be an abuse of process, is estopped by representation, or is impermissibly late. A planning obligation may be enforced by mandatory injunction under section 106 of the Town and Country Planning Act 1990. The court should assess whether the order requires the performance of an activity or the achievement of a defined result. An order is not inappropriate merely because further technical detail, planning permission or supervision may be required. Adoption of highways does not necessarily make the highway authority a person deriving title from the developer, nor does it ordinarily make the authority jointly liable for an obligation expressed to be performed at nil cost to it.

The claimant local planning authority sought summary judgment and a mandatory injunction requiring Oakmesh Ltd and Family Mosaic Housing to construct a footpath and bridge link required by a deed dated 20 December 1996 and expressed to be made under section 106 of the Town and Country Planning Act 1990.

Family sought to amend its defence shortly before the hearing. It argued that the deed failed to comply with section 106(9), because the relevant land was not adequately identified, and that construction of the bridge over land outside the plan could not be a specified operation under section 106(1)(b). It also relied on the adoption of estate roads by the claimant under section 38 of the Highways Act 1980. The issues were whether the amendment should be permitted and, if not, whether a mandatory injunction should be granted.

1. Family’s application to amend was refused. Family had previously applied under section 106A(3) of the Town and Country Planning Act 1990, a procedure available only to a person against whom the planning obligation was enforceable. It had thereby proceeded on the basis that the obligation applied to it. The statutory relationship between sections 106, 106A and 106B made it an abuse of process to challenge the obligation’s validity after receiving an adverse and final decision on the discharge appeal.

2. The principle against approbating and reprobating was potentially applicable across the different statutory procedures, but its strict requirements were not proved because the claimant had not lost its available remedy. The proposed amendment was nevertheless barred by abuse of process and by estoppel by representation. Family had repeatedly represented, from at least 1998 to 2004, that it accepted the obligation and intended to construct the bridge. The claimant had relied on those representations by delaying enforcement, agreeing to vary the completion date and incurring costs in the planning appeal.

3. The amendment was also too late and contrary to the overriding objective. The court therefore proceeded on the basis that the obligation was enforceable.

4. The claimant’s adoption of the estate roads did not make it a person deriving title from Oakmesh for the purposes of section 106(3). The highway interest vested by operation of section 263(2) of the Highways Act 1980, not by a transfer of title from Oakmesh. Further, the obligation was expressly to be performed by the developer at nil cost to the council. It was not contemplated that the council would itself be jointly liable to perform it or contribute to its cost.

5. A mandatory injunction was the appropriate remedy. Section 106(5) expressly authorised injunctive enforcement, and an injunction was the normal remedy where damages were inappropriate. The obligation was to achieve a defined result, supported by detailed plans already approved in principle. The need for further calculations and technical detail did not make the order uncertain. The fact that planning permission was required, or that Family did not own the bridge land, did not prevent relief, since Family had a contractual licence to enter and construct the bridge and planning permission was highly likely.

6. The claim for a mandatory injunction was therefore justified. The parties were invited to agree the terms of the order, with the court to resolve them after submissions if necessary.