Expert appointment within s.106 agreement upheld

The Royal Ordnance Factory, at Euxton near Chorley, was allocated as a strategic development site and has since been built out as Buckshaw Village.  A section 106 agreement secured a range of planning obligations including ‘Further Mitigation Payments’ following the 1,000th dwelling completion, subject to indexation provisions. The developers made payments totalling c. £2.94m to the Council (Chorley Borough Council); but these left – on its view of the proper duration of indexation – c.£2m outstanding. The Council appointed an expert to determine the duration of indexation in accordance with the agreement without the developers’ agreement, and the parties agreed two preliminary issues for determination by the court, i.e. ‘(a) Was the Expert appointed in accordance with clause 14.1.1 of [the Agreement] in light of the Claimant’s objection to Expert determination; and (b) Is the Court the more appropriate forum for the determination of the substantive dispute as set out in the Details of Claim’. The High Court (HH Judge Eyre QC sitting as a Judge of the High Court) determined both of these issues in favour of the Council. The reminder of the developers’ claim was struck out and they were ordered to pay 90% of the Council’s costs. Simon Pickles and Matthew Henderson represented Chorley Borough Council.

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