Contract for sale of development land conditional (1) upon planning consent being obtained within five years, (2) upon a right of access being obtained for the benefit of all land covered by the contract, including land which in the event might be retained by the vendor–Provisions not inserted solely for the protection of the purchaser, so that he cannot waive them and claim specific performance on his failure to obtain planning consent within the five-year period
This was a
claim by Federated Homes Ltd, of Bucklersbury House, London EC4, against Mr
James Turner, of Hempton Court Farm, Almondsbury, Gloucestershire, for specific
performance of a contract entered into in 1968 for sale of land forming part of
the farm.
Mr A de Piro
QC and Mr A C W Hordern (instructed by J Eaton & Co) appeared for the
plaintiffs, and Mr J A R Finlay QC and Mr D Hawkins (instructed by Lee, Bolton
& Lee, agents for Cooke, Painter & Co, of Bristol) represented the
defendant.
Giving
judgment, WHITFORD J said: In 1968 the plaintiffs in this proceeding and the
defendant entered into an agreement under which the defendant was going to sell
and the plaintiffs were going to buy certain land. It was part of a farm,
Hempton Court Farm, at Almondsbury in the County of Gloucester. The terms which
were agreed between the parties were set out in a composite document dated June
27 1968, consisting in part of what appears to be a standard set of terms
issued by the Bristol Law Society and in part of certain typewritten additions
thereto which were bound up with the standard conditions. There was a plan
forming part of the agreement to which reference is made, and that plan shows
the area to be sold marked with a red boundary. I should mention in passing
that within the red land there is an area marked with a green boundary. The
green area is in fact the farmhouse and the land immediately adjacent to the
farmhouse. There were certain special provisions with regard to this part of
the red land which are of no significance for present purposes, and I need not
mention them further. I should however add that one finds additionally upon the
plan an area of land delineated in blue which was no part, directly, of the
agreement entered into between the plaintiffs and the defendant. The blue area
was in fact an area of land also owned by the defendant, and before ever this
agreement was entered into there had been some negotiation relating to the
proposed acquisition of the blue land for the purposes of the building of a
school, or an addition to a school, by the county council. In fact, the matter
was in substance concluded, so far as the acquisition of the blue land is
concerned, by the time the agreement for the sale of the red land was entered
into, save only for this, that the price to be paid for the blue land had not
been finally determined.
The agreement
of June 27 sets out in clause 5 the price which it was agreed should be paid,
and the price was ‘£7,000 per acre of the red land.’ The land is described as ‘agricultural land,’
which indeed it was at the time in question. Having regard to the price which
the plaintiffs were prepared to pay, it is of course at once apparent that they
were not intending to pursue the purposes for which the land had previously
been used, namely agriculture. They hoped that upon an appropriate application
they would get permission to build. It was quite plainly envisaged at the time
when the agreement was entered into that planning permission might not be
granted. That is apparent from the terms of the agreement, because certain
provisions were inserted in the agreement, to be found in the typewritten
sheets, and these provisions deal, or purport to deal, with the eventualities
which were to ensue if planning permission were not obtained. The whole of the
dispute in this action is about these particular provisions, to which I will
shortly have to turn. As a matter of history, however, it is convenient to say
that after the agreement had been signed, the plaintiffs took all appropriate
steps to make their application for planning permission for building of the
type envisaged in the agreement for sale. There is no reason to suppose that
they, on their side, did not pursue this application with all reasonable
diligence. In fact they have been initially refused permission, but an appeal
is on foot. The appeal has not yet been heard and is not due to be heard until
later this year. No doubt part of the difficulties which have undoubtedly
arisen could have been avoided if it had been possible to get these matters
dealt with rather more expeditiously, but it was not possible, so we are left
with the situation in so far as it is covered by the terms in the agreement.
The original agreement set a term of five years. Without going into the details
of it, what basically it provided was that there should be a five-year period
during which the plaintiffs would be able to pursue their application for
planning permission and at the end of that period certain eventualities were to
follow if planning permission had not been obtained. By the end of, or towards
the end of the five-year period, it was quite apparent to the plaintiffs that
they were not going to get planning permission within the five-year period, and
it is plain that at this stage they considered where their best interests lay
and what it would be most suitable to do. A letter was written on their behalf
by their solicitors as long ago as April 4 1973 in anticipation of the event
that planning permission would not have been received by the expiry of five
years from the date of the agreement, and in that letter, which was addressed
to the defendant’s solicitors, an indication is given in these terms:
‘My clients
have now indicated that I should shortly write you formally exercising the
option in respect of the whole of the land on the contract terms (in which
event there would be no retained land), and adding that they wish to take up
the conveyance one month thereafter, at which time they would pay £175,000. The
balance of purchase-money would then be paid in three equal annual instalments.’
The exact
importance of that paragraph can only be understood when we come to consider
the relevant terms of the
approaching the matter at this time. They apparently took the view that the
agreement was in the nature of an option agreement, and that they were
entitled, in certain circumstances, to exercise their option to acquire the
property, and they were proposing to do this. What can perhaps be described as
a formal notice was sent on April 17 1973. Under this the plaintiffs’
solicitors wrote to the defendant’s solicitors informing them again that they
were proposing to proceed with what I think they were still thinking was an
option agreement, upon the basis that the plaintiffs would purchase the land,
waiving any conditions relating to the securing of planning consent and certain
other conditions which I think it is suggested really only make sense if they
are considered as being part of the conditions relating to the obtaining of the
planning consent. At any rate, here, before the expiry of the five-year period,
was a notice sent saying that the plaintiffs wanted to proceed and were
prepared, in order to proceed, to waive certain conditions, and indeed yet
another letter was sent in May of the same year, following an exchange of
counsel’s opinions as to whether or not the plaintiffs could exercise some
valid right, be it by way of option or otherwise, to have the agreement
specifically performed. In this further letter, dated May 30 1973, it was again
stated that the plaintiffs were proposing to waive any conditions set out in
two clauses of the agreement to which I will shortly turn, clauses 18 and 19.
In this letter it was said that although the view was taken on the plaintiffs’
side that in the circumstances they were entitled to ask for completion on the
basis that they paid for the first 25 acres at the agreed price, which would
result in a capital payment of £175,000, and were thereafter entitled to pay
the balance in three equal annual instalments, they were nonetheless prepared,
if it would suit the defendant better, to pay the whole of the agreed price for
the whole of the land, which comprised some 17 acres, namely £490,000. The
defendant, for reasons best known to him, took the view that he did not want to
complete upon these terms. He had been advised that the plaintiffs were not
entitled to call, in the circumstances, for a completion of the contract upon
the terms which they set out in any of their letters, or indeed upon any terms.
It appears that he had been advised that if at the expiry of the five-year
period no planning permission had been secured, the agreement would terminate.
However, to make doubly sure, shortly after the expiry of the five-year period
in question, notice was sent from the defendant’s side to the plaintiffs’
solicitors by a letter dated June 28 1973, stating that the defendant was
treating the contract as determined by the expiry of five years from its date
pursuant to the provisions of clause 18.
The whole of
this case really turns upon what in essence may appear to be a relatively
simple point. Everybody is agreed that at the beginning there was an agreement
which envisaged the sale of the whole of the red land at the agreed price,
£7,000 per acre. Everybody is agreed that by clause 18 of the agreement a
condition was written into the agreement which really came to this: that the
agreement was conditional upon the plaintiffs obtaining in respect of the red
land outline planning permission. On the plaintiffs’ side, what basically is
said is that the whole of this provision to be found in clause 18, and indeed
certain other provisions to be found in clause 19, were inserted solely for
their benefit as purchasers, and to some extent this does, no doubt, seem a
commonsense sort of approach. They were, after all, buying agricultural land at
a price which I suppose in 1968 was very much in excess of 10 times the value
of the land as agricultural land, and in those circumstances, understandably
enough, they might want to provide an escape route if at some stage when the
application was being put forward it became quite plain that the land would
never be permitted to be used for anything other than agricultural purposes. If
that be right, then the basic contention on the plaintiffs’ side is that the
whole of these provisions relating to the obtaining of planning permission
being conditions which were inserted for their sole benefit, they were entitled
to waive the conditions if they were so minded and can now call for specific
performance of the agreement. That is just what they do in this action.
Before I come
to consider the relevant clauses of the agreement, I think it may perhaps help
if I say one word about the law. This is not a point which is or can, in any
sense, be said to be new. There have been cases in the past where vendors have
sought to escape from an obligation which they have entered into to sell
property upon the sort of basis which arises here, and there is no doubt that
in the past the courts have taken the view, in relation to contracts for sale,
where difficulties in completion may have arisen because of the impossibility
of or an objection to the performance of a condition on one side, if that
condition benefits only the other party, then in fairness he ought to be
entitled to waive it, because it would not be right to allow the vendor to
escape from his obligations upon a point which the purchaser ultimately decides
is really, taking matters by and large, one which is of not sufficient substance
or importance, so far as he is concerned, for him to desire to insist on it.
The first of the cases to which I was referred (and I was referred to quite a
number, though I do not propose to deal with them all in detail) was the case
of Hawksley v Outram [1892] 3 Ch 359. That was a case of a sale
of a business which had been carried on under the name of Benjamin Outram &
Co, and under the contract for sale the purchaser was going to be entitled to
carry on the business under this name, and there was a restrictive covenant in
the contract binding the vendors not to carry on a business of this character
within a certain area. It was a case where complication arose because one of
the vendors was not going to be available at the time when the agreement was to
be concluded, and had given a power of attorney to the other, who signed the
sale agreement on his behalf. The defendants defaulted upon completion, and on
proceedings being brought for specific performance the question was raised as
to whether or not the power of attorney authorised the giving to the plaintiff
purchaser the right to use the name Benjamin Outram & Co and as to whether
or not it authorised the attorney to subject the company selling to a covenant
in restraint of trade. I need only refer to the judgment in the Court of Appeal
given by Lindley LJ, who, having dealt with the facts, at page 375 of the
report continues in these words:
‘The
purchaser, however, says, ‘A doubt being raised whether the power of attorney
authorises the giving the purchaser power to carry on the business in the name
of the old firm, which might expose the old partners to liability, or
authorises the binding the vendors not to carry on the same business, I will
waive those stipulations.’ That appears
to me to remove all difficulty, because it is quite obvious that those two
clauses are inserted simply and purely for the benefit of the purchaser; and if
there is any doubt whether they are binding upon the vendors, and the purchaser
waives them, what have the vendors to complain of? What conceivable difficulty remains if that
is done? I can see none. Of course, if
those clauses were so inextricably mixed up with other parts of the transaction
that they could not be severed, there might be a difficulty; but they are not.
They are perfectly severable. The attorney has got power to sell the business,
and says, ‘I agree to sell the business.’
He also says, ‘I agree further that the vendors shall not carry on
business in competition with you within a radius of 50 miles.’ The validity of that further agreement is
doubtful. The purchaser says, ‘If that is doubtful, I give it up.’ Where is the difficulty in enforcing specific
performance of the other stipulation, which is not tainted with any doubt or
affected by any difficulty? It appears
to me that the plaintiff is right. It is obvious that we should be doing
grievous injustice if we were to decide in any other way, because the plaintiff
has, on the faith of this agreement, entered into possession and paid
considerable sums of money. If he cannot get specific performance he will never
get his money back, and
ought to prevent us from making a decree in his favour.’
This they did.
I cite the whole of that passage because I think it is always important in
these cases to have in mind the exact circumstances in which the decision was
given. This was quite plainly a case where the court took the view that if an
order for specific performance were not made, a grievous injustice would be
inflicted upon the party seeking the order, and furthermore it was a case where
the decision was taken upon the basis that it was, in the words of the Master
of the Rolls, quite obvious that the clauses upon which the question of a
waiver arose were being ‘inserted simply and purely for the benefit of the
purchaser.’
A number of
other authorities were referred to of respectable antiquity, but a very much
more recent case which was drawn to my attention was the case of Heron Garage
Properties Ltd v Moss [1974] 1 WLR 148, which was decided by
Brightman J this year, and was a case in which purchasers were buying a part of
a site, and the agreement was expressed as being conditional upon the purchaser
obtaining planning consent within a specified time for the redevelopment of the
property for certain purposes. It was a case where the agreement provided that
if the consent was not obtained within the specified period, either party could
determine the agreement by giving notice in writing. That was an express term
of the agreement, in which the relevant clause, clause 7, started off by
saying, ‘This agreement is expressly conditional upon the purchaser obtaining
detailed town planning consent for the redevelopment of the property . . .’ and
so on, and continued at a later stage, ‘In the event of town planning consent
in such terms as above not being granted within six months from the date of the
first local town planning authority meeting after the date hereof (or within
such extended time as the parties hereto may agree in writing) then after the
expiration of such period (or such extended period) either party may by notice
in writing to the other party determine this agreement, whereupon the deposit
paid hereunder . . .’ and so forth. So that in some ways, the circumstances
were not unlike the circumstances which I have to consider. Again, in this
case, the question which was canvassed was whether, in fact, the purchasers had
a right unilaterally to waive the conditions of clause 7. It was a case in
which Brightman J came to the conclusion that they had no such right. In his
judgment he reviews the decision in Hawksley v Outram to which I
have already referred. He refers to another case of Bennett v Fowler
(1840) 2 Beav 302, which is not, to my mind, quite so much in point, and he
refers to a decision given by Kekewich J in Lloyd v Nowell [1895]
2 Ch 744, where again the question arose as to whether a particular stipulation
was for the sole benefit of the party seeking to waive. In rejecting the
contention put forward by the purchaser in the case before him, Brightman J
puts it in this way. As I understand it, he accepts the position that there may
be circumstances in which a contracting party seeking specific performance can
waive a stipulation, but the only circumstances which Brightman J envisages
might lead to this right were these, that there might be some express term in
the agreement giving the party the right to waive, or the circumstances must be
such that there must be an inevitable implication, taking the terms of the
agreement as a whole, that the condition sought to be waived is for the
benefit, and for the benefit only, of the person seeking to waive it.
I think now I
must turn to the agreement, and it is necessary for me to read in full those
clauses of the agreement which were referred to in argument. Clause 18, which
is the first and perhaps most important of the clauses, is in the following
terms:
‘This
contract is conditional upon the purchasers obtaining in respect of the red
land outline planning consent free from conditions or subject to conditions
acceptable to the purchasers for the erection of units at an average density of
not less than 10 units per acre within five years of the date hereof. The
purchasers shall use their best endeavours to obtain such outline planning
consent in respect of the red land and shall be entitled to call upon the
vendor for assistance (but not monetary assistance) to this end. At all times
the purchasers shall notify the vendor of the issue of any consent relating to
the red land or any part thereof within 48 hours of the receipt of such
consent. If such planning consent be not granted within the said five-year
period then this contract shall become null and void except as hereinafter provided.
In the event of outline planning consent being granted within the five-year
period for the erection of units at the said average density upon an area of at
least 25 acres then this contract shall become binding in respect of that area
of land and the purchasers shall be required to purchase and the vendor shall
be required to convey that area of land at the price of £175,000 for the first
25 acres thereof and at the rate of £7,000 per acre for the remainder and the
purchasers shall be required to complete the purchase of 25 acres of that area
of land within one month of the granting of such outline planning consent. This
contract shall remain conditional in respect of the remainder of the red land
not comprised in the area which shall have received planning consent as
aforesaid until the termination of the said period of five years. In the event
of outline planning consent for the erection of units at the said average
density being granted in respect of an area of less than 25 acres in the first
instance then the vendor may decide that this contract shall become binding in
respect of that lesser acreage by giving within one month of the issue of such
consent notice in writing to the purchasers and the purchasers shall then be
required to purchase that lesser acreage at a price calculated at the rate of
£7,000 per acre and to complete that purchase within one month of the receipt
of such written notice but the vendor shall not be required to convey an area
of less than 25 acres in the first instance unless he has given such written
notice to the purchasers of his decision to do so. In the event of outline
planning consent being granted within the said five-year period for the
erection of units at the said average density on a total area greater than 25
acres but less than the total area of the red land either in the first instance
or as a result of subsequent grants of planning consent then this contract
shall become binding in respect of the area of land in excess of 25 acres only
if the vendor is reasonably satisfied that provision has been made by the
purchasers in consultation with the local planning authority for the
development of the balance of the red land, then remaining and not having the
benefit of outline planning consent, with units at not less than the same said
average density per acre. The vendor, when satisfied with the above (for which
purpose he shall be allowed one month), shall give notice in writing to that
effect to the purchasers and this contract shall thereupon become binding in
respect of the whole area in respect of which the said outline planning consent
has been granted and the purchasers shall be required to purchase and the
vendor to convey the said area of land at a price to be calculated at the rate
of £7,000 per acre, and unless the vendor shall signify the contrary in writing
within the said period he shall be deemed to be satisfied. In the event of this
contract becoming binding in respect of an area in excess of 25 acres at any
one time either in the first instance or subsequently the purchasers will be
required to complete their purchase within one month of the date on which the
contract becomes binding only in respect of 25 acres and to pay the sum of
£175,000, and the balance of the purchase moneys shall be paid in three equal
annual instalments the first of which shall be paid one year after the said sum
of £175,000 falls due and the vendor shall convey such part or parts of the
land in respect of which there is a binding contract as the purchasers may
require but so that the vendor shall not be required to convey a greater area
of land at any time than is covered by the purchase moneys then paid calculated
at the rate of £7,000 per acre. If at any time during the fifth year of the
said period of five years the vendor shall wish to make his own planning
application in respect of all or any part of the red land which shall not then
have received consent he shall be entitled to do so and to call upon the
purchasers for particulars of any application they shall have made in respect
thereof. In such case any consent received by the vendor shall be treated for
the purpose of this contract as a consent received by the purchasers and the
provisions herein contained as to purchase of land with the benefit of an
overall average density of 10 units to the acre shall apply.’
There is then
a definition of units, which is not material for the present purposes. The next
relevant clause is clause 19, which is in the following terms:
‘This
contract is also conditional upon the purchasers being able to obtain for the
benefit of the whole of the red land right of access in accordance with the
requirements of the local planning authority to the public highway across the
land over and to the south-west of the railway. The costs (if any) of obtaining
this right of access shall be borne in full by the purchasers up to a total sum
of £10,000 and in the event of these costs exceeding the said sum the excess
costs over and above £10,000 shall be shared equally between the vendor and the
purchasers. To the extent that the cost of constructing the access road (the
cost of which is the purchasers’ liability) shall be greater than the normal
costs at that date of constructing a normal access road of similar width
resulting from it having to be constructed across the railway tunnel, then such
additional costs shall be deemed to be a part of the costs of obtaining the
right of access.’
Clause 20 is
of no particular materiality; it merely provided that the vendor was going to
get £5,000, which would be non-returnable. But clause 21 must also be
considered. It is in these terms:
‘It is a
condition of this contract and shall be a clause in any subsequent conveyance
or conveyances that the vendor shall reserve a full and free right of way for
all purposes of a width sufficient to permit a roadway to be constructed to the
satisfaction of the local planning and highway authorities across any land
conveyed, for the benefit of and for the purpose of obtaining access to all the
retained land; this right of way to follow the route of the roads to be
constructed on the land conveyed and the purchasers to ensure that such new
roads are routed and constructed in a manner which will permit such
satisfactory access. The vendor shall further reserve the rights for the
benefit of the retained land to connect to and make use of the services and
utilities in the nature of sewerage and surface water drainage systems water
electricity and gas supplies as may in due course be provided on the land
conveyed and the purchasers shall ensure that these said services and utilities
which are so provided on the land conveyed are of a capacity sufficient so far
as the rights of way are concerned to serve the development that may reasonably
be expected to take place on the retained land and so far as the sewerage and
surface water drainage systems water electricity and gas supplies are concerned
to serve that part of the red land which shall not be or have been conveyed to
the purchasers and further so far as water electricity and gas supplies are
concerned so far the purchasers are able. For the purposes of this clause the
‘retained land’ shall mean the land shown on the plan attached hereto and
thereon edged blue and the portion of the red land not conveyed as aforesaid.’
It is perhaps
to be observed just in passing that so far as clause 21 is concerned, it
appears to me, on the plain language used in the clause, and upon the
definition of the ‘retained land,’ that so far as any question of access and
any access road is concerned, the benefit of that might enure to the blue land,
but the benefit of any arrangements as to sewerage, surface water drainage
systems, water, electricity and gas supplies was going to enure only in respect
of any red land which, for the purposes of clause 21, came to be ‘retained
land.’ Perhaps the most important words
in these three clauses are the very opening words of clause 18. For the
purposes of argument clause 18 was divided into a number of subclauses by
counsel on behalf of the plaintiffs, and his numbering was followed in the
course of his address by counsel for the defendants. Clause 18, as can be seen,
starts off by making the contract conditional upon the obtaining in respect of
the red land of outline planning consent for the erection of accommodation at a
certain density. The next provision, which was referred to as 1 (a), is the
provision in clause 18 under which the purchasers had to use their best
endeavours to secure the requisite consent. The following provision, which was referred
to as 1 (b), is in these words, which I must repeat: ‘If such planning consent
be not granted within the said five-year period then this contract shall become
null and void except as hereinafter provided.’
The plaintiffs’ case, as I understand it, really proceeds first upon
this basis, that really one can stop at this point. The whole of this provision
was, it is said plainly, and I think there is some sense in it, quite plainly
inserted to safeguard the purchasers. They wanted to escape if they did not get
the planning permission, and it was for that reason and that reason alone that
provision was made in that part of clause 18 which was referred to as 1 (b) for
the contract becoming null and void if planning permission were not granted
within the five-year period. So far as the defendant is concerned, what he says
first of all is that as a mere question of construction, if one looks at the
language, there is not really any doubt about what the parties had agreed at
the time when they entered into this agreement; they had agreed that there was
to be a period within which planning permission might be sought. At the end of
that period, subject to the exceptions to which I will shortly have to come, if
planning permission for the red land had not been obtained there was to be an
end of the matter. On the plaintiffs’ side it is said, ‘Well, it may well be
that this agreement so states, but what does it matter to the defendant whether
planning permission is obtained or not?
What he wanted was his £7,000 per acre for his 70 acres, and that we are
prepared to pay him. He entered into this agreement to sell this acreage to us
at that price. It may be that a safeguard was inserted to safeguard our
position; we are now prepared to waive it. Why should the contract become null
and void?’
I think one
has got to be very careful, in relation to agreements of this character, in
approaching the question of waiver on conditions. I do not think, myself, that
it is fair to consider this solely upon the basis of the provisions of clause
18 up to the end of that part of it which has been designated as clause 1 (b),
because quite plainly at the beginning what had been envisaged was the
possibility of situations rather more complex than the situation in which
everything was going to stand or fall with the application in respect of the
whole of the red land. Thus, even if planning permission were not to be
obtained within the five-year limit, the agreement was not necessarily going to
become null and void, and there are elaborate and sometimes not very easily
reconcilable provisions which follow thereafter and deal with the situation
which might arise if, say, planning permission were secured for 25 acres or
more than 25 acres or for a lesser acreage. It is to my mind quite plain, upon
the provisions of clause 18 alone, that a situation could conceivably arise in
which the purchaser was going to get planning permission for an area of land
which would entitle him to enforce his rights to purchase, but that there might
be left to the vendor other areas of land in respect of which no planning
permission was going to be obtained, which would be ‘retained land.’ Clause 21, in terms, constitutes a
recognition of the fact that at the end of the day, quite apart from the
question of the blue land, there might be a certain portion of land which would
by then have to be regarded as ‘retained land,’ in respect of which the vendor
was going to secure certain rights. It must also be remembered that the
agreement was not conditional merely upon the securing of planning consent. It
was also conditional upon the purchasers being able to obtain for the benefit
of the whole of the land the rights of access referred to in clause 19, the
rights of access which might be of benefit, so far as the vendor was concerned,
under clause 21 in relation to retained red land, or indeed in relation to the
blue land. What was submitted was that so far as the blue land was concerned,
that really need not enter into consideration at all, because the agreement for
the purchase of the blue land was concluded before ever this agreement was
entered into, and only a consideration of price remained outstanding. However
that may be, the possibility of rights relating to access might, I suppose, at
least notionally affect the price which the council was prepared to pay for the
acquisition of the blue land, and indeed the
negotiable right of value to the vendor.
I think,
however, that basically this case turns upon what seems to me to be a
relatively simple and straightforward question of construction. It may well be
that the terms of an agreement of this character might be so drafted that it
was made quite apparent in terms on the face of the agreement that a condition
relating to the acquisition of planning permission with a certain period was a
condition which could be waived by the purchaser, and if anybody is seeking to
enter into an agreement of this character in the future, and in fact wishes to retain
a right to waive conditions relating to the obtaining of planning permission, I
would have thought they would have been very sensible so to do. It may well be
that the terms of particular agreements may be such that one must be able to
come to the conclusion that the conditions being waived are conditions which
are favourable only to the person seeking the waiver. The express terms of this
agreement go to this: no planning permission within the five-year period and
the contract becomes ‘null and void except as hereinafter provided.’ It is common ground that the subsequent
exceptions do not save the situation, because there was no planning consent in
respect of any part of the red land, and the exceptions are only really dealing
with the situation which arises in relation to partial consent. This is very
strong language to use. It would have been very easy if one party or the other
were to have the right to take some decision as to what was to happen to insert
express words indicating this. The possibility that a point might arise where
somebody might make a choice was plainly envisaged by those who were concerned
to draft these provisions. One finds in clause 18 itself, for example, the
expression ‘the vendor may decide,’ and at a later stage, ‘unless the vendor
shall signify the contrary.’ On the face
of it, it seems to me that there really is no doubt as to what the intention of
the parties was at the time when the agreement was signed, if one really takes
the language of the document, and to my mind it would have required a very
strong case indeed to establish that this provision, as clear as any provision
could be in its terms, must be subject to this: that taking the agreement as a
whole, this and the subsequent provisions are provisions which were really only
inserted for the protection of the purchaser and which he was, in fact,
entitled to waive. Setting aside, however, any question of subsequent
conditions, and merely considering what I think is the strongest way in which
the case was put upon the plaintiffs’ side, I have come to the conclusion that
if you take the agreement down to the end of that part of 18 which was
designated as 1 (b) alone, there is no sufficiently strong implication that
this provision was for their benefit alone, no implication sufficient to
override what, as I have said, seem to me to be very clear words. As I have
indicated, I do not think it is right to take it alone, and once one brings
into consideration the possible alternative events envisaged in the remainder
of clause 18, not, I am afraid, always without difficulties of interpretation,
and in clauses 19 and 21, one must reach the conclusion which was reached by
Brightman J in Heron Garage Properties Ltd v Moss, namely, that
this is not a case where it is obvious on the face of the contract that the
stipulations which the plaintiffs sought to waive by those letters to which I
have already referred were for their exclusive benefit and that, in all the
circumstances of this case, they ought to be entitled to have their waiver
accepted and to be granted an order for specific performance. In the result the
action fails.
