Nicholls LJ discussed the nature and enforcement of agreements under section 106 of the 1990 Act, saying: ‘A section 106 agreement may be enforced against the original covenantor in contract, and against successors in title to the original convenantor by virtue of sub.(2). Enforcement is a matter solely for the local planning authority, and there is no right for the public at large, even through a relator action to bring enforcement proceedings; although the authority’s decision to enforce or not to enforce is amenable to judicial review.’ and
‘In the nature of things, many decisions of local authorities affect members of the public to a greater or lesser extent. These decisions affect the public and, in that loose sense, ‘the public interest.’ This is as much so in planning matters as in many other fields of activity of local authorities, such as education. But, despite this, there is no general ‘public right’ which entitles or enables the court to override a local authority’s decision on a matter which by statute or otherwise has been entrusted to its decision. In exercise of its judicial review jurisdiction, the court is able to ensure that a local authority’s decision has been arrived at properly, in the sense that the decision-making process was duly followed. The court will check that the decision-making body proceeded properly, and applied its collective mind properly to the matters entrusted to its decision. If the decision is flawed, the authority may be compelled to reconsider the matter, and this time to do so properly. But the end result is still a decision by the local authority on the relevant issue, not a decision of the court. All this is trite law, but its importance in the present case lies in noting that the public right for which the Attorney-General contends would have the consequence that a decision by the council on whether or not to enforce the covenant in the 1934 agreement, even if arrived at impeccably, could effectively be overridden, at any rate in some circumstances. If the council decided not to enforce the covenant, nevertheless, if the Attorney-General is correct, the covenant would still be enforceable pursuant to the ‘public right’ to have the covenant complied with.’
Nichols LJ continued: a special type or degree of public interest such as to justify the conclusion that they give rise to a ‘public right’ of enforcement. Mr Price [counsel for the Attorney-General], indeed, disclaimed any contention that all agreements to which section 34 applies, or to which its well-known successor section (s.52 of the 1971 Act) applies, give rise to such a right. He was wise to do so. A proposition that all section 52 agreements, irrespective of their content, create a ‘public right’ would be unsustainable. It would be far too wide.
This compelled the Attorney-General to adopt the position that there is to be found in the provisions of this particular agreement some special feature having the consequence that this agreement, unlike the generality of section 34 or section 52agreements, did create a ‘public right. Mr. Price contended that the special feature was that the land was intended to be preserved permanently as a private open space ‘for the benefit and amenity of the district.’ This is a promising starting point, but the route which Mr. Price was then obliged to negotiate led him into quicksand. He recognised that, notwithstanding the existence of the public right for which he contended, the council had power to vary or release the restrictions in the 1934 agreement, by agreement with the owner of Birtenshaw Farm. (Indeed, this power was exercised in this case. In 1955 the council and the executors of the two Ashworth brothers agreed to modify the user restrictions to enable a school to be built partly on Birtenshaw Farm and partly on Oaks Farm.) The public right, in other words, consisted only of a right to enforce the restrictions in the agreement as subsisting from time to time. Mr. Price contrasted a case (a) where the council had agreed to release or vary the restrictions, with a case (b) where there was no variation or release but the council declined to take steps to enforce the agreement for non-planning reasons: for example, because of a mistaken view of the enforceability of the agreement. He submitted that in the latter case, case (b), there was a residual public right which did not override the council’s right to decide whether to vary or release the restrictions. Nor did it override the council’s planning policies. In case (b) the public had a right to enforce the agreement in default of the council doing so. In such a case the public right would not be inconsistent with any relevant policy of the council.
I cannot accept this. By thus limiting its scope, one is left with a public right defined in terms which cannot stand scrutiny. On this formulation the 1934 agreement generated a right vested in the public to enforce the restrictions if, but only if, the reason for non-enforcement was unrelated to planning considerations: for example, financial constraints, or a mistaken view of the council’s legal rights. I can see no sound basis for concluding that the agreement created a public right of such a curiously circumscribed nature. The agreement either operated to vest a right in the public in respect of the user restrictions, or it did not. If it did, the right must surely have been applicable, at the very least, in all circumstances where the agreement remained in force. But admittedly the right being claimed would not apply if it was for planning reasons that the council decided not to enforce the restrictions.
The difficulties do not end there. There is no practical distinction between a decision of the council not to enforce a restriction and a decision formally to vary or release a restriction. In each case the effect of the decision is the same: non-enforcement. For there to be a public right available in the one case but not the other would be unsatisfactory. If the public right is subordinate to and overridden by a formal variation decision, there can be no good reason why it should not equally be subordinate to and overridden by a decision not to enforce.
If that is correct, no scope is left for the operation of the novel public right being contended for. On analysis, the council’s ability to ‘override’ the public right of enforcement by releasing the covenant is inconsistent with there being any public right to enforce the covenant. The custodian of the covenant was the council. Established procedures exist for those dissatisfied with the council’s decisions. But there is no independent public right to enforce the covenant. In short; the categories of public right are not closed, but there is no scope for the existence of a public right in this case without doing unjustifiable violence to the contractual and local government framework in which the 1934 agreement rests.’
Judges:
Nicholls LJ
Citations:
Times 02-Jan-1990
Statutes:
Town and Country Planning Act 1990 106
Jurisdiction:
England and Wales
Cited by:
Cited – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD 13-May-2010
The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .
Lists of cited by and citing cases may be incomplete.
Planning, Contract
Updated: 02 May 2022; Ref: scu.415911
