Milebush Properties Ltd v Tameside Metropolitan Borough Council & Ors

An express right of way must be construed from its words read against the background known to the parties. A right granted for rear servicing does not extend to use as an emergency exit merely because it permits pedestrian use. It may include access for loading, disabled access, bicycles, and repair or maintenance, subject to the grant’s other terms. A term permitting reasonable restrictions cannot narrow the expressly defined purpose of the right. Questions of reasonable times or reasonable access arrangements are factual matters and may be subject to expert determination. Declaratory relief is discretionary and should not be granted where it would serve no practical purpose because the planning authority retains power to vary or decline to enforce the obligation.

Milebush owned properties designated as authorised properties under a planning agreement concerning a service road. The agreement required the developer’s successor, Tameside, to grant rights of way for rear servicing after pedestrianisation works materially restricted vehicular access from the High Street.

Tameside offered a right of way subject to restrictions on purpose, hours and security-gate access. Milebush sought a declaration that those restrictions were impermissible and also pursued access for use as an emergency exit. The court had to construe the right of way, determine the scope of reasonable terms, consider expert determination, and decide whether declaratory relief was appropriate.

1. The claim was dismissed. The court declined to grant the declaration sought because Milebush had no private-law right enforceable against the defendants and Hillingdon retained a public-law discretion to vary, release or decline to enforce the planning obligation. A declaration concerning the present construction of the agreement would therefore serve no useful purpose.

2. The right of way was to be interpreted by reading the words of the grant in the light of the background circumstances and the planning purpose of the transaction, applying the approach in Davill v Pull [2009] EWCA Civ 1309 and [2010] 1 P&CR 23, with the principles of contractual interpretation applying to an express easement.

3. The purpose of clause 3.5 was to compensate authorised properties for loss of vehicular access from the High Street caused by pedestrianisation. The words “access for servicing” were not confined to loading and unloading. They could include disabled access, bicycle access, and access for repair and maintenance, although the service road could not be used as a base for carrying out the works.

4. Use as an emergency exit was outside the purpose of the grant. That conclusion followed from the planning context, the natural meaning of “servicing”, the requirement that access be available at all reasonable times rather than all times, and the express power to control access by security barriers.

5. Tameside could impose reasonable terms only on matters not expressly regulated by clause 3.5. It could not use a term to narrow the purpose of the right. Restrictions on hours had to be consistent with access at all reasonable times. The reasonableness of particular hours and arrangements for operating security barriers were questions of fact; disputes between Tameside and Hillingdon on those matters fell within the expert-determination clause.

6. Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 did not invalidate the planning agreement because it required signature by the parties to that contract, not by every third-party beneficiary. The court agreed with R. G. Kensington Management Co Ltd v Hutchinson IDH Ltd [2003] 2 P&CR 13 and declined to follow Jelson Ltd v Derby City Council [2000] JPL 203. This conclusion was unnecessary to the dismissal once declaratory relief had been refused.

First-instance proceedings in the High Court (Chancery Division). The defendants’ applications for summary judgment were heard with the expedited trial, but no separate summary-judgment order was required after the claim was dismissed.