Vendors taking option to repurchase part of land sold – Option excercisable in the event of planning permission being granted in respect of that part – Vendors obtaining permission for scheme relating to other property – Scheme requiring relocation of council allotments to part of land sold earlier – Whether option triggered by the permission so obtained
The claimants were the trustees of a family trust. In 1975 the then trustees acquired for the trust a large estate in Bedfordshire, which included a 280 acre farm located within the green belt. In 1977 the trustees sold the farm to a predecessor of the defendant. The sale included a 27 acre field that was described by reference to two ordnance survey numbers. Under a provision referring to one of those numbers, the vendors obtained an option entitling them to repurchase any part in the event of planning permission being granted in respect of such part over the following 20 years. The trustees retained ownership of a 1.24 acre area of land (the retained land) that lay between the field and an area of council-owned land given over to statutory allotments.
In the 1990s it became apparent that the council would be willing to take the retained land out of the green belt, provided that it could be comprehensively developed with the council land, and provided that an alternative location could be found for the allotments. To meet those requirements, the claimants, anxious to build houses on the retained land, proposed a scheme. One phase of the scheme included the setting aside of some 10 acres of the field so as to provide a new allotments site and ancillary car park (the proposed allotments site). The council accepted the proposal and granted planning permission.
The claimants sought to exercise the option to the extent of the land included in the proposed allotments site. The defendant disputed their right to do so on the grounds: (i) that part of the site (which included the designated car park) fell outside the area covered by the option agreement; and (ii) that, in any event, nothing had occurred to trigger the option. At a High Court hearing, the first issue (which required, inter alia, a finding on the likely contents of documents that had been lost) was decided in favour of the defendant. The judge then turned to the second issue.
Held: The option had not been triggered by the planning permission.
For the purpose of the Town and Country Planning Act 1990, planning permission was required for the carrying out of a development, which, as defined, did not include the use of land for agriculture: see section 55(2)(e) of the Act. As defined in section 336, agriculture had been held in Crowborough Parish Council v Secretary of State for the Environment [1981] JPL 281 to include the use of land for allotments. It followed that, save for the corner to be used as a car park, no development was proposed or permitted by the planning permission.
The option had to be construed so as to give effect to the presumed intention of the parties, which was to secure to the claimants the increased value of the land on becoming the subject of actual or potential development. Thus construed, it could not be said the planning permission obtained by the claimants had been granted “in respect of” the land in issue.
Joseph Harper QC (instructed by Wilsons, of Salisbury) appeared for the claimants; Richard Langham (instructed by Knowles Benning, of Shefford) appeared for the defendant.
Alan Cooklin, barrister
