Loxleigh Investments Ltd v Dartford Borough Council

For overage purposes, “detailed planning permission” may include approval of reserved matters or other permission granted pursuant to an outline planning permission. The expression is construed by applying ordinary contractual principles, having regard to the language, context and commercial purpose of the agreement. Overage provisions are not subject to a special rule requiring an unpredictable future event. Where outline permission is conditional on approval of reserved matters, construction cannot begin until that approval is granted. The relevant permission date is the date on which the approval or permission is granted.

The Council sold land to Loxleigh Investments Ltd subject to overage provisions. An additional payment became due if a detailed planning permission was granted during the five-year overage period for the construction of qualifying units.

Outline planning permission had already been granted, followed by approval of reserved matters and later permission varying the design and layout. Four houses exceeded the contractual size threshold. The Council counterclaimed for overage payments and applied for summary judgment. The central issues were whether the later approvals constituted “detailed planning permission”, when permission was granted, and whether the counterclaim had a real prospect of success.

1. Summary judgment. The Council discharged the burden under CPR 24.2. The issue was one of contractual construction suitable for summary determination, and there was no compelling reason for trial, applying ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725 (paras [9]–[12], [43]).
2. Construction of the Transfer. “Detailed planning permission” was apt to describe approvals and permissions granted pursuant to outline planning permission. That was its ordinary and natural meaning in legal texts and decisions, and was supported by the wording of the later permission itself. The word “any” included more than one type of detailed permission, including full permission for another development and approval or consent pursuant to the outline permission (paras [36]–[37]).
3. The Transfer was to be construed according to orthodox principles. The parties were free to provide for overage on the occurrence of the permissions identified in the contract. There was no rule that overage could arise only from an unpredictable future event, and the authorities relied on for a strict approach did not establish such a rule (paras [38]–[39]).
4. The distinction in planning legislation between planning permission and approval of reserved matters did not determine the contractual meaning. Bradford-on-Avon UDC [1964] 1 WLR 1136 and Heron Corporation Ltd v Manchester City Council [1978] 1 WLR 937 concerned statutory questions and did not assist with construing “detailed planning permission” or fixing the contractual permission date. That date was the date on which the approval or permission was granted (para [40]).
5. The outline permission was conditional on approval of the reserved matters and did not permit construction to begin before that approval. The Council could not lawfully refuse approval on grounds already capable of consideration at the outline stage, but that did not alter the conditional nature of the permission (para [41]). Clause 4.1 also prevented repeated payments in respect of the same unit, removing the suggested uncommercial consequence (para [42]).
6. The 2013 and 2015 permissions therefore triggered overage liability for the four qualifying houses. Loxleigh had no real prospect of successfully defending the counterclaim, and summary judgment was entered for the Council on that basis (para [43]).