Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others
| Jurisdiction | England & Wales |
| Judge | THE HON MR JUSTICE ARNOLD |
| Judgment Date | 13 May 2010 |
| Neutral Citation | [2010] EWHC 1022 (Ch) |
| Court | Chancery Division |
| Date | 13 May 2010 |
| Docket Number | Case No: HC09C04357 |
[2010] EWHC 1022 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Before: The Hon Mr Justice Arnold
Case No: HC09C04357
Mark Warwick (instructed by J.E. Kennedy & Co.) for the Claimant
Alan Johns (instructed by Eversheds LLP) for the First Defendant
Sasha Blackmore (instructed by Hillingdon Council Legal Services) for the Second Defendant
Hearing dates: 4–5 May 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
MR. JUSTICE ARNOLD:
Introduction
By these proceedings the Claimant (“Milebush”) seeks a declaration that the First Defendant (“Tameside”) is obliged to grant it a right of way over a service road (“the Service Road”) in accordance with clause 3.5 of an agreement dated 15 February 1991 (“the Principal Agreement”) as varied by an agreement dated 29 October 1997 (“the Supplemental Agreement”). The Principal Agreement was made between Tameside's predecessors in title and the Second Defendant (“Hillingdon”) pursuant to section 106 of the Town and Country Planning Act 1990. Tameside accepts that it is obliged to grant Milebush a right of way over the Service Road, and has offered to do so, but disputes that it is obliged to grant a right of the scope demanded by Milebush. It denies that Milebush is entitled to declaratory relief in any event. It also raises a defence under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. Hillingdon supports Tameside's position with regard to the scope of the right of the way in relation to the main issue raised by Milebush, but not a subsidiary issue. It also supports Tameside's position with regard to declaratory relief, and adds that it should not have been joined as a defendant anyway. It is neutral on section 2 of the 1989 Act.
Milebush commenced the proceedings by a Part 8 claim form on 18 November 2009. On 8 December 2009 and 11 January 2010 respectively the Defendants applied for summary judgment dismissing the claim. On 18 January 2010 those applications came before Roth J for directions. He made an order expediting the trial of Milebush's claim and directed that the Defendants' applications be heard together with the trial.
Background
Milebush is, and has since 3 March 1977 been, the freehold proprietor of 276–280 High Street, Uxbridge. These properties are near to the corner with Vine Street. They are used for both commercial and residential purposes, including a covered shopping arcade.
On 15 February 1991 Hillingdon granted London & Metropolitan Estates Ltd (“L & M”) and Traffichold Ltd (“Traffichold”) planning permission (“the Planning Permission”) for “Development of offices up to a maximum of 6,361 m 2 floorspace and associated car parking (incorporating provision for a rear service road to the rear of High Street properties)” on a large site on Cricketfield Road, off Vine Street (“the Development”). The Planning Permission was subject to a number of conditions, including the following:
“CONDITION 2
That the development hereby permitted shall not be occupied until the rear service road providing rear access to Nos. 271 and 272 High Street and for its future extension to serve Nos. 273–283 High Street is completed to the satisfaction of the local Highway Department.
REASON
To ensure provision of rear servicing to properties on the south side of the High Street so as not to prejudice the future pedestrianisation of the High Street.”
On the same date L & M, Traffichold and Hillingdon entered into the Principal Agreement. The Principal Agreement includes the following recitals:
“A The Developer is the owner in fee simple of the Application Site.
B The Council is the Local Planning Authority for the area of the London Borough of Hillingdon for the purposes of the Town and Country Planning Act 1990 and a Principal Council for the purposes of the Local Government (Miscellaneous Provisions) Act 1982 for the area within which is situated the Application Site, the Service Road, Cricketfield Road and the area of the Roundabout Works.
C The Council is the Highway Authority for the purposes of the Highways Act 1980 for the area in which the Application Site is situated and has under its control Cricketfield Road partly as a highway and partly as an accommodation road.
D The Developer has applied to the Council for Planning Permission.
E It is the Council's objective to provide access for the rear servicing of those properties known as 1–5 Vine Street and 271–283 High Street inclusive as part of its pedestrianisation proposals for the High Street Uxbridge and it is the Council's intention to phase implementation providing rear access to numbers 271–272 High Street and for the further extension of the Service Road to access 273 and 283 (including the new arcade properties) High Street and 1–5 Vine Street as the first phase of rear servicing.
F It is the mutual desire of the parties hereto that the Service Road be provided for the purposes mentioned in recital F [sic] above according to the terms of this Agreement.
G The Developer and the Council have agreed outline design drawings and forms of construction for the schemes for the construction of the Service Road for Cricketfield Road to the rear of the High Street and highway improvement works to the mini roundabout at the south end of Cricketfield Road as provided for in this Agreement.”
Clause 1.1 provides:
“This agreement is made pursuant to Section 106 of the 1990 Act, Section 33 of the Local Government (Miscellaneous Provisions) Act 1982, Section 111 of the Local Government Act 1972, Section 38 and Section 278 of the Highways Act 1980 and all other powers so enabling.”
Clause 2 contains a number of definitions, including a definition of “Developer” as “L & M and Traffichold and their successors in title” and a definition of “Service Road” as follows:.
“The area hatched and cross hatched black on plan 90028/P102B or as the Reserved Matters shall otherwise provide and be approved but in which event shall always link the High Street with Cricketfield Road as herein provided.”
Clause 3 contains provisions relating to the Service Road the details of which do not matter because they were substantially varied by the Supplemental Agreement.
Clause 8.7 provides:
“In the event of any dispute between arising between the Parties hereto in respect of
…
(ii) any other matter the subject of or arising out of this Agreement the same shall be referred to a Chartered Surveyor to be agreed between the parties hereto or failing agreement as to the same to be appointed upon the application of either party hereto by the President for the time being of the Royal Institution of Chartered Surveyors
PROVIDED THAT any person appointed under this Clause shall be required by the parties to act an expert and not as an arbitrator …”
Subsequently L & M, Traffichold, Hillingdon and Frogmore Estates Ltd (“Frogmore”) entered into the Supplemental Agreement. The recitals to the Supplemental Agreement refer to the Principal Agreement and state that “Frogmore has contracted with L & M and Traffichold to purchase the Application Site (as defined in the Principal Agreement) subject to conditions”.
Clause 1.2 of the Supplemental Agreement substituted for the old definition of “Developer” a new definition, which was “L & M, Traffichold and Frogmore and their successors in title”. Clause 1.3 added some new definitions, including the following:
“‘Authorised Properties’ the properties known as 1–5 Vine Street and 271–283 High Street to be granted rights of access over the Service Road in accordance with the terms of this Agreement.
‘Variation’ the grant of permission to vary the Planning Permission by the removal of condition 3 and the variation of conditions 2 and 4 in the form annexed to this Agreement”.
Condition 2 of the Planning Permission, as varied, states that:
“The Development hereby permitted shall not be occupied until the rear Service Road providing rear access to numbers 271 and 272 High Street and for its future extension to serve numbers. 273–283 High Street is completed as certified by a suitably qualified Highways Engineer.”
Clause 2 of the Supplemental Agreement contains a number of amendments to clause 3 of the Principal Agreement dealing with the Service Road, including adding a new clause 3.5 in the following terms:
“3.5. The Developer hereby covenants with the Council that it will grant rights of way in fee simple with or without vehicles to inure in perpetuity (but subject to termination if the rights cease to be capable of being exercised for the purpose for which they are granted) over the Service Road for the benefit of Authorised Properties for the purpose of obtaining access for servicing the rear of those properties only and in accordance with the terms of this clause and to be registered against the Developer's title and the expression ‘rights of way’ whenever used in this clause shall be so construed.
3.5.1 on the later of the date of Substantial Completion of the Service Road and the date when the Development is first occupied the Developer will grant rights of way to the owners of those of the Authorised Properties to which the Service Road is physically capable of providing rear access at that time such rights to be available during normal office hours on Monday to Friday and on such reasonable terms as may be imposed by the Developer for the benefit of the owner and the owner's assigns; and
3.5.2 on the date when the Council notifies the Developer that...
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