Development agreement — Agreement to build yearly quota of houses — Agreement to carry out road works — Highway authority requirements not anticipated — Delay to gaining entry to land — Whether contract frustrated — Whether jurisdiction under Ord 14 to make declaration in wide terms — Appeal against summary judgment dismissed
By an agreement dated September 1988 the first defendants agreed to complete a total of 133 houses, in yearly quotas, within four years from the date when a compulsory purchase order for the development land was confirmed. One of the specific obligations was to carry out works to Southdown Road to bring it to a standard no less than that required for adoption by the highway authority. Between July 1989 and January 1990 East Sussex County Council, the highway authority, and whose approval the first defendants required, maintained the view that the first defendants should be responsible for the improved road throughout the maintenance period; this was not anticipated by the first defendants who were not prepared to accept responsibility for a new road surface by reason of the defective condition of the existing carriageway.
The plaintiffs brought proceedings for breach of contract and applied for summary judgment under RSC Ord 14; the defendants contended that the contract had been frustrated by the highway authority’s requirements. Mr Timothy Lloyd QC (sitting as a deputy judge of the Chancery Division — April 9 1991) declared that the agreement had not been frustrated and gave unconditional leave to defend as to the claim of £20,000. He also rejected the first defendants’ submission that by reason of the long delay before entry was obtained to the land in August 1989 the contract had been frustrated on a further ground as there was inadequate time after the entry date to carry out all the contract works within the time-scale provided for the first year. The defendants appealed.
Held The appeal was dismissed.
The contract was not frustrated by the requirements of the highway authority. Those requirements may not have been anticipated and may have made the road works more onerous, but the contract did not become impossible to perform. In any event the highway authority’s requirements did not bring about the delay in obtaining entry to the land. The fact that entry to the land was so delayed as to make compliance with the first years’ quota of completed houses impossible, and to jeopardise the second year, is not so very different from the position which inevitably resulted from the express terms chosen. The deputy judge had jurisdiction under Ord 14 to make the order he did.
Davis Contractors v Fareham Urban District Council [1956] AC 696 considered.
Philip Naughton QC and David Iwi (instructed by Laytons) appeared for the appellant defendants; and Christopher Moger (instructed by Titmuss Sainer & Webb) appeared for the respondent plaintiffs.
