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 enforceable at the instance of the Authority only and not by third parties. Though it might have been intended that the agreement was almost as described by the claimants, they were not party to the section 106 agreement. However, it would substantially frustrate the statutory scheme contained in section 106 of the 1990 Act to interpret section 2 of the 1989 Act as invalidating section 106 agreements which benefit third parties.
A declaration would be futile: ‘Milebush claims no private law right enforceable against either Tameside or Hillingdon. It seeks declaratory relief against Tameside on the footing that it is directly affected by the interpretation placed upon the Principal Agreement. But why should the Court grant Milebush a declaration against Tameside in circumstances where, even if Milebush was right on the construction of clause 3.5 as it presently stands, Hillingdon would retain a discretion to decide not to enforce, or to vary, clause 3.5? It would be a pointless exercise.’
Arnold J
[2010] EWHC 1022 (Ch), [2010] 2 EGLR 93, [2010] NPC 58, [2010] JPL 1303, [2010] 20 EG 145, [2010] 30 EG 64
Bailii
Town and Country Planning Act 1990 106, Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
Cited – Davill v Pull and Another CA 10-Dec-2009
The court was asked to interpret grants of rights of way over land. The claimant intended to increase the use of the right. The servient owners objected. The claimant appealed against refusal of relief.
Held: The appeal succeeded. There was . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Doubted – Jelson Ltd v Derbyshire County Council CA 1-Aug-1999
Section 2 of the 1989 Act had to bite at the point where a party could be compelled, in certain circumstances, which could or could not come about, to sell or dispose of an interest in land. The agreement here contained in effect an option for the . .
Cited – Colchester Estates (Cardiff) v Carlton Industries plc ChD 30-Mar-1984
If a decision of a court has been reached after full consideration of an earlier decision which went the other way, it should not be open to review on a third occasion when the same point arose for decision.
Nourse J said: ‘There must come a . .
Cited – Attorney-General ex rel. Scotland v Barratt Manchester Ltd CA 2-Jan-1990
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 . .
Cited – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .
Cited – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
Cited – Nweze and Another v Nwoko CA 29-Mar-2004
The parties had settled their dispute in an oral compromise agreement under which it was agreed that land would be sold at the best price reasonably obtainable. One now argued this was unenforceable as an agreement for the disposal of land requiring . .
Cited – R G Kensington Management Co Ltd v Hutchinson IDH Ltd ChD 2003
Neuberger J decided that he could not follow the court in Jelson, saying: ‘The defendant’s case is that the reference to ‘the parties’ in s.2(3) is to the parties to the proposed conveyance or transfer. Two strands of authority are put forward as . .
Lists of cited by and citing cases may be incomplete.
Land, Planning, Contract
Updated: 11 November 2021; Ref: scu.415090
