Freund v Charles Scott Developments (South Devon) Ltd

In a conditional land sale agreement, an assignee could enforce the purchaser’s benefit only if the contractual condition was satisfied according to the agreement’s terms. Planning permission obtained on an application by an assignee did not qualify where the assignment had not been notified to the vendor before the application or permission. The vendor’s obligations concerning opposition to planning applications and planning-related agreements made the purchaser’s identity material. An application to adduce evidence on an estoppel issue was refused where the evidence could have been presented at trial and the correspondence disclosed no properly arguable estoppel.

Trident Developments Limited entered into a conditional contract with George Freund for the purchase of land if residential planning permission was obtained during the contract period. Trident assigned the benefit of the agreement to Charles Scott Developments (South Devon) Ltd in 1996, but notice of the assignment was not given to the vendor until after planning permission had been granted on an application made on behalf of the assignee.

Jacob J held that the agreement contained no machinery by which planning permission obtained by an assignee could trigger the contractual obligations, unless the application was made by or on behalf of Trident. The assignee appealed and also sought to adduce further evidence in support of an alleged estoppel arising from the parties’ correspondence.

1. Appeal dismissed. The application to adduce further evidence was refused. The evidence could have been obtained and adduced at trial, and the suggested procedural justification did not warrant its admission.
2. The central construction issue was whether the planning consent granted during the contract period followed a planning application made by or on behalf of the contractual purchaser within clause 1(e). The Court held that the application made on behalf of the assignee did not satisfy that definition.
3. Lord Justice Schiemann considered that the agreement’s structure required the vendor to know the identity of the purchaser. That was necessary because the vendor had a put option under clause 3, was obliged by clause 11 not to oppose relevant planning applications, and might have to enter into a planning agreement backed by the purchaser’s indemnity under clause 10.
4. Lord Justice Chadwick similarly held that an assignee could fall within the expression purchaser only after giving notice of the assignment under section 136 of the Law of Property Act 1925. Until then, the vendor was entitled to treat Trident as the purchaser. The planning consent therefore was not the contractual planning permission, and the contract had determined when the contract period expired.
5. Sir Christopher Staughton reached the same result by treating Trident as remaining the contractual purchaser after assignment. The assignment transferred the benefit of the contract but did not alter the express condition that planning permission must follow an application made by or on behalf of Trident. His discussion of Warner Brothers Records Inc v Rollgreen Ltd was confined to distinguishing the question whether an assignee could exercise an existing contractual right from the separate question whether the condition had been fulfilled.
6. The alleged estoppel was not even arguably established by the correspondence. The assignee could itself have sought a declaration or proceedings concerning the agreement’s validity, but did not do so.
7. The appellants were ordered to pay the respondent’s costs of the appeal and the application, with costs to be assessed by a costs judge. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): appeal from the judgment of Jacob J in the Bristol District Registry Mercantile Division. The appeal was dismissed and the application to adduce further evidence was refused.