Patel and Others v London Borough of Brent
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Hart,Mr Justice Hart |
| Judgment Date | 07 April 2004 |
| Neutral Citation | [2004] EWHC 763 (Ch) |
| Date | 07 April 2004 |
| Court | Chancery Division |
| Docket Number | Case No: HC0100775 |
[2004] EWHC 763 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Hart
Case No: HC0100775
Mr Jonathan Small (instructed by Hugh Cartwright & Amin) for the Claimants
Mr Edwin Johnson (instructed by CMS Cameron McKenna) for the The London Borough of Brent
Hearing dates: 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29 th January, 7 th April 2004
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.
Introduction
The claimants ("the Mission") are the trustees of a religious charity who, in 1990, purchased from the defendant local authority ("the Council") the site of the former Neasden High School ("the Site") with a view to developing it as a temple, for which purpose they obtained planning permission ("the 1990 permission"). In connection with the 1990 planning permission the Mission entered into a section 52 agreement ("the Mission's section 52 agreement) under which it paid a sum of £550,000 to the council in respect of certain contemplated highway works. The Mission in the end decided not to implement the 1990 permission and thus became entitled to (and obtained) the return of the £550,000. In 1992 the Mission negotiated the sale of the Site to Fairclough Homes Limited ("Fairclough") with the benefit of a planning permission obtained by Fairclough for residential development on 17 th December 1992 ("the 1992 permission") permitting the construction of 149 new dwellings. In connection with the 1992 planning permission the Mission entered into an agreement ("the s.106 Agreement") with the Council pursuant to section 106 of the Town and Country Planning Act 1990 (the successor to section 52). Clause 5 of the s.106 Agreement required the deposit of £550,000 ("the Contribution Sum") by the Mission with the Council, in similar although not identical terms to those which had been contained in the Mission's section 52 agreement. The main question before me has been whether the Mission is entitled, in the events which have happened, to get all or part of the Contribution Sum (together with accrued interest) back from the Council.
Clause 5 of the s. 106 Agreement was in the following terms:
"5. HIGHWAY IMPROVEMENTS PAYMENT
5.1 The Owner shall on the date hereof deposit with the Council the sum of five hundred and fifty thousand (£550,000.00) which the Council covenants with the Owner shall be solely attributable to paying for highway improvements and/or traffic management measures necessary to improve access arrangements to/from the Site comprising alterations to the junction of Neasden Lane North and Quainton Street which the Council shall use its reasonable endeavours to complete prior to the issue of the Certificate of Substantial Completion of the Highway Works and which in the opinion of the Engineer are necessary in the interests of highway safety and the free flow of traffic for improving the vehicular and pedestrian use for persons using the Site and for the general public as a result of the increased highway use caused by the Development
5.2 The Council shall place the said sum in a designated interest bearing account with interest accruing to the fund and following satisfaction of the condition precedent contained in Clause 4.1 may draw down from the account in respect of expenses properly incurred pursuant to the Council's covenant in this sub-clause and any amount of the said sum and accrued interest remaining in the account upon completion of the Council's highway improvements and traffic management measures shall forthwith be released and repaid to the Mission (whether or not it shall then be the Owner)
5.3 The Council shall upon the written request of the Mission at any time and from time to time deliver to the Mission statements containing full details of the sums drawn down and the manner in which they have been expended"
"The Engineer" was defined as "The Council's Director of Engineering and Highways for the time being". The condition precedent contained in Clause 4.1 was implementation by the Owner (i.e. the Mission or its successor in title) of the planning permission, i.e. the 1992 planning permission a draft of which was annexed to the s. 106 Agreement.
The date by which the Council thereby undertook to use its reasonable endeavours to complete the works described in Clause 5 was, in the event which happened, 21 st October 1994. But that date passed without the Council having made any apparent progress at all. By August 1999 the position appeared to be the same, and the Mission came to the conclusion that the purpose for which the £550,000 had been deposited had either ceased or failed. By letter dated 17 th August 1999 the Mission's solicitors, Hugh Cartwright & Amin ("HCA") demanded a return of the money. Following further correspondence between HCA and the Council over the next twelve months, the Council eventually indicated that it was about to embark on a scheme of works. In due course it did so by two phases of works ("the Council's Works"): first a process of installing traffic lights at the junction ("signalisation") which was completed in August 2001, and secondly a scheme of associated footpath widening and improvement which was completed in March 200In doing so it has used most, but not quite all, of the Contribution Sum and accrued interest. It has indicated that it is prepared to return the balance (some £75,000) but has insisted that this is by way of concession.
The issues
Three broad issues fall to be determined:
i) Was the Council in breach of contract by reason of its acts and omissions in the period prior to 17 th August 1999, and if so was that breach repudiatory? If so, did the letter dated 17 th August 1999 accept the repudiation and entitle the Mission to the return of the Contribution Sum together with interest?
ii) Do the Council's Works answer the description in Clause 5, and, if they or some of them do not what is the consequence so far as concerns the Contribution Sum and accrued interest?
iii) Is the Council liable to the Mission for damages as a result of its delay in embarking on and completing the Council's Works?
The Junction
The junction with which I am concerned ("the Junction") is that between Quainton Street and the main road (the A4088) called Neasden Lane. The Site is at the other end of Quainton Street near to the Neasden Railway Depot. To the south east of the Site the road connection to the North Circular is via Chesham Street and Village Way, to the north east of which is the Neasden Village conservation area. Neasden Lane itself also connects to the North Circular. A driver travelling north east along the North Circular wishing to go north west along Neasden Lane has the opportunity, if he is aware of it, of using Village Way Chesham Street and Quainton Street as a rat run.
Prior to the Council's Works the Junction was an unsignalised all-moves priority junction, Neasden Lane having the priority. A vehicle emerging from Quainton Street into Neasden Lane faced a problem both in turning left to the north west or right to the south east. The left turn suffered from the difficulty of poor visibility to the right, a difficult kerb radius to the left and the need to wait for a suitable gap in the usually heavy traffic proceeding along the two north westerly lanes of Neasden Lane. The left turn presented a particular difficulty for HGVs, requiring them to occupy the second lane in performing the necessary manoeuvre. HGVs from the Railway Depot usually took the right turn. Vehicles taking the right turn had to wait for a gap in the traffic moving in both directions along Neasden Lane. This involved waiting for a gap in four lanes of traffic (two north west and two south east). Such manoeuvres were assisted by the existence of a pelican crossing just to the south east of Braemar Avenue, but at the same time hampered by the existence of a bus stop on Neasden Lane immediately opposite the Junction, and exposed to the problem of vehicles emerging from, or turning into, Braemar Avenue which joins Neasden Lane a little to the south east of the Junction. A vehicle seeking to turn right into Quainton Street had to negotiate two lanes of traffic, and (if there was a bus at the stop) would block all traffic travelling south east on Neasden Lane.
Along Neasden Lane opposite the Junction there is a variety of shops, including a Cost Cutter supermarket and, to the north west a McDonalds.
The area around the Junction had a poor accident record.
Background
The Council had, since at least 1989, regarded the Junction as being substandard and in need of improvement. The issue became a live one in 1989 in two contexts. First, in connection with an appeal against a refusal of planning permission for the residential re-development of part of Neasden Village, the substandard nature of the Junction had been identified by those opposing that particular proposal. At the inquiry a solution proposed had been the construction of a slip road to assist the left turn out of the junction coupled with the banning of a right turn. The contemplation was that the right turners would be served by a U-turn facility at the junction of Combe Road and Neasden Lane further to the north west. The second was the context of the proposed sale of the Site by the Council to the Mission and the latter's application for planning permission to...
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