Milebush Properties Ltd v Tameside Metropolitan Borough Council & Ors [2010] EWHC 1022 (Ch) (13 May 2010)

Milebush Properties Ltd v Tameside Metropolitan Borough Council & Ors [2010] EWHC 1022 (Ch) (13 May 2010)

Milebush is not entitled to the declaration sought because the right of way under clause 3.5 is limited to access for servicing the rear of the properties and does not extend to use as an emergency exit. The imposition of reasonable conditions by the developer is permissible within the scope of the agreement. Declaratory relief is inappropriate as Milebush is not a party to the agreement and enforcement is a matter for the local planning authority. Section 2 of the 1989 Act does not invalidate the agreement.

Citation
[2010] EWHC 1022 (Ch)
Parties
Claimant: Milebush Properties Limited; First Defendant: Tameside Metropolitan Borough Council; Second Defendant: The Mayor and Burgesses of the London Borough of Hillingdon
Jurisdiction
England and Wales
Judgment Date
13 May 2010
Procedural Posture
Part 8 Claim (declaratory Relief) / First Instance Judgment
Outcome
Claim dismissed
Legal Topics
Section 106 Agreements, Easements and Rights of Way, Declaratory Relief, Interpretation of Contracts, Enforcement of Planning Obligations
Property Law Planning Law Contract Law Section 106 Agreements Easements and Rights of Way Declaratory Relief Interpretation of Contracts Enforcement of Planning Obligations

Case Brief

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Parties

Milebush Properties Limited

Claimant

Tameside Metropolitan Borough Council

First Defendant

The Mayor and Burgesses of the London Borough of Hillingdon

Second Defendant

Procedural Posture

Part 8 Claim (declaratory Relief) / First Instance Judgment

Legal Issues

  1. 1 Whether the claimant is entitled to a declaration as to the scope of the right of way under clause 3.5 of the Principal Agreement as varied by the Supplemental Agreement
  2. 2 Whether the right of way includes use as an emergency exit
  3. 3 Whether the defendant can impose conditions on the right of way, including time restrictions and security barriers

Ratio Decidendi

Milebush is not entitled to the declaration sought because the right of way under clause 3.5 is limited to access for servicing the rear of the properties and does not extend to use as an emergency exit. The imposition of reasonable conditions by the developer is permissible within the scope of the agreement. Declaratory relief is inappropriate as Milebush is not a party to the agreement and enforcement is a matter for the local planning authority. Section 2 of the 1989 Act does not invalidate the agreement.

Court Disposition

Claim dismissed