Milebush Properties Ltd v Tameside Metropolitan Borough Council

The court has a broad discretion to declare the meaning of a document affecting a claimant who is not a party to it. The court should nevertheless decline relief where the dispute concerns the enforcement of a planning obligation by the planning authority and private proceedings would disregard that authority’s paramount planning functions. Judicial review is then the appropriate procedure.

A planning obligation granting access for servicing the rear of properties must be construed in its statutory and factual context. Where it replaced vehicular access lost through pedestrianisation, it did not extend to a pedestrian emergency exit. Reasonable controls over access could be determined through the deed’s expert procedure.

A planning agreement under section 106 of the Town and Country Planning Act 1990 required the developers of land in Uxbridge to grant rights over a rear service road for the benefit of specified properties. Tameside Metropolitan Borough Council acquired the land as successor in title. Milebush Properties Ltd owned one of the benefited properties but was not a party to the agreement.

Milebush sought declarations that the right included use as a pedestrian emergency exit and that Tameside’s proposed controls were too restrictive. Arnold J dismissed the action in [2010] EWHC 1022 (Ch). He rejected Milebush’s construction and declined declaratory relief.

The appeal concerned whether private declaratory proceedings were appropriate and whether access for “servicing” included pedestrian emergency egress.

1. Appeal dismissed by a majority. Mummery LJ, with whom Jackson LJ agreed, held that Arnold J had neither misdirected himself nor reached a plainly wrong discretionary decision. An appellate court may interfere with such a decision only for an error of legal principle or where the decision is plainly wrong.
2. The declaratory jurisdiction under rule 40.20 of the Civil Procedure Rules 1998 extends to disputes about documents affecting claimants who are not parties to them. The claimant’s lack of a contractual cause of action was therefore relevant but not conclusive. The court nevertheless had to consider the nature of the dispute, the utility of relief, the interests of affected persons and whether another procedure would resolve the matter more effectively.
3. The dispute was properly characterised as concerning a planning authority’s objectives and the enforcement of a statutory planning obligation. Under section 106 of the Town and Country Planning Act 1990, Hillingdon alone could enforce the obligation against Tameside. Hillingdon could also decide not to enforce it, release it or vary it. Judicial review, with Hillingdon as a party and Tameside as an interested party, was the proper procedure and the Administrative Court the proper forum. The judge was entitled to refuse a declaration in the private action.
4. The construction issue was unanimously resolved against Milebush. The agreement’s context was the replacement of vehicular access lost through pedestrianisation. Access for “servicing the rear” of the authorised properties did not include a pedestrian emergency exit, which had no connection with that purpose.
5. The security gate and the requirement to contact a guard were consistent with servicing use and had not been shown to be unreasonable. Any dispute between Tameside and Hillingdon about the reasonableness of access arrangements fell within the agreement’s expert-determination provision.
6. Moore-Bick LJ dissented on declaratory relief. He considered the private proceedings a sensible and economical way to resolve a genuine construction dispute. The public-law character of the obligation did not itself require refusal, and a declaration would serve a useful purpose. He would have varied the order by granting declarations reflecting the construction adopted by the court.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 270, the appeal was dismissed by a majority. The court unanimously upheld the construction of the planning agreement; Moore-Bick LJ dissented on the refusal of declaratory relief.
2. High Court, Chancery Division: Arnold J dismissed Milebush’s action in [2010] EWHC 1022 (Ch). He rejected Milebush’s construction of clause 3.5 and held that declaratory relief was inappropriate.