The Civil Division of the Court of Appeal handed down its judgment in Milebush Properties Ltd v Tameside Metropolitan Borough Council [2011] EWCA Civ 270 on 17 March 2011. The case concerned the availability, in private law proceedings between non-contacting parties, of a declaration on the meaning and effect of a planning obligation in a deed made pursuant to provisions in the planning legislation.

Section 106 of the Town and Country Planning Act 1990 (“the 1990 Act”) governs the enforcement of “planning obligations” entered into by agreement (“section 106 agreement”) by any person interested in land and a local planning authority. These obligations are enforceable against any person deriving title from that person, as well as against that person himself. Such an agreement was entered into between a local planning authority and the developers of land situated to the rear of properties owned by the appellant, a condition of which being the construction of a service road and the grant of a right of way over that road. The respondent local authority acquired the development, along with the above obligations.

The dispute centred on the construction of clause 3.5 of the agreement, which had been inserted by a supplemental agreement dated 29 October 1997 concerning the nature and extent of that right of way to provide access for the rear servicing of the authorised properties. The appellant commenced private law proceedings, seeking declarations that the respondent was obliged to grant to the appellant the rights of way referred to in that clause.

Arnold J, delivering the judgment of the High Court had found that the use of the service road did not extend to use for the purpose of a pedestrian emergency exit from the rear of the appellant’s properties, and that other matters concerning the locking of a security gate and the hours during which the service road could be used were not matters for the court. He accepted the respondent’s submission that it was not, in any event, an appropriate case for declaratory relief under CPR 40.20. Accordingly, he dismissed the action.

Mummery LJ delivering the leading judgment of the Court of Appeal, held first that the discretion to grant a declaration covered a wide range of cases, and authorities showed how it might be granted in private law proceedings concerning the disputed construction of a document affecting the claimant, even though the claimant was not a party to it.

He also found however that Arnold J had given a proper self-direction in law on the principles governing declaratory relief, with all of the factors taken into account by him having been relevant to the exercise of his discretion. This case was not a private law dispute about the construction of a deed or about the legal enforcement of an agreement but was about the planning objectives of a planning authority and about the performance of these obligations more suited, if they were to be decided by a court at all, in judicial review proceedings to which the original planning authority was a party. The result was that judicial review was the proper procedure and the Administrative Court was the proper forum for the instant case and for future cases of that kind, and the instant private action for a declaration was an inappropriate proceeding by the claimant.

Arnold J had also been correct to conclude that the provision of an emergency pedestrian exit at the rear of the authorised properties had nothing to do with servicing the rear of the authorised properties and was outside the contemplation of clause 3.5. Further, the judge had been right in reaching the conclusion he had as to the security gate and access to the service road. However, the judge had been entitled to conclude that it had not been appropriate to exercise his discretion to grant the claimant a declaration in the form sought by it or in any other form. Further, his construction of clause 3.5 had clearly been correct.

The appeal was thus dismissed, Moore-Bick LJ dissenting on the issue of whether Arnold J had been right to refuse to grant declaratory relief, or refuse to exercise his discretion in favour of doing so.