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London Borough of Waltham Forest v Oakmesh and Family HA [High Ct, Ch D, Livesey QC [2009] EWHC 1688 (Ch); J.P.L. 249]

DATE: 10 Jul 2009

This is the first known case in which a Council has succeeded in obtaining a mandatory injunction to enforce an obligation in a s106 Agreement. The developer agreed to build a bridge linking a footpath to a railway footbridge. After many years of non compliance, and an unsuccessful application under s106A,  the Council took enforcement proceedings and applied for summary judgment.

The main defendant was the Housing Association which had acquired the development. It defended the claim on various bases: that the obligation was not within s106 because the land on which the link was to be built was outside the application site; that the obligation was too uncertain and that the Council was also liable as successor in title having adopted the estate roads.

It was held that the Housing Association was estopped from contending that the obligation was outside s106, and the other defences were rejected. A mandatory injunction was granted.

Thomas Jefferies acted for the Council