Cozens-Smith v Bellway Homes Ltd

Where a claim turns on the construction of contractual or planning documents, it may be suitable for summary disposal if the evidence shows no real prospect of success and no compelling reason for trial.

“Planning permission” in a transfer referring to outline permission as amended or varied may include subsequent approval of reserved matters where that approval is required to implement the outline permission. Whether a document is an approval of reserved matters or a new grant of planning permission must be determined from the document as a whole and in its documentary, factual and commercial context. Errors in statutory references do not alter its legal character.

The claimant retained a narrow strip of land when selling a development site to the defendant. The transfer defined “Planning Permission” by reference to an outline planning permission, as amended or varied from time to time, and granted rights concerning development of the site and retained land.

The defendant constructed a footpath across the strip in accordance with an approval of reserved matters. The claimant sought declarations that he was not obliged to permit its construction or grant a right of way. The defendant applied to strike out the claim or obtain summary judgment. The claimant sought permission to amend to claim injunctive relief and damages.

The central issues were whether the transfer included the approval of reserved matters and whether that document was an approval of reserved matters or a new grant of planning permission.

1. Summary disposal. The issues were matters of construction suitable for summary determination. The claimant had no real prospect of succeeding on the declarations or proposed amended claims. The claim was therefore struck out under CPR 3.4(2)(a), and summary judgment was granted in the alternative.
2. Meaning of “planning permission”. The transfer expressly referred to planning permission reference WA/2015/0478, as amended or varied from time to time. Read in the context of the transaction, the definition included the outline planning permission, the disputed approval of reserved matters and subsequent amendments or variations. The outline permission could not lawfully be implemented without approval of the reserved matters. The claimant’s contrary construction would make the development rights commercially and legally ineffective.
3. Character of the disputed document. The application was expressly an application for approval of reserved matters under the Town and Country Planning (Development Management Procedure)(England) Order 2015. The document referred to the outline permission, used its reference number and dealt with the reserved matters. It was therefore an approval of reserved matters, not a new grant of planning permission.
4. The incorrect references to section 91 rather than section 92 of the Town and Country Planning Act 1990, and the three-year period in the informative note, did not change that conclusion. The document had to be construed as a whole. Its limited conditions, compared with the conditions in the outline permission, were inconsistent with a grant of full planning permission.
5. Condition 8 concerning pedestrian and cycle links formed part of the approval of reserved matters and the outline permission. The defendant’s rights under clauses 12.3 and 12.4 of the transfer therefore applied. The first declaration was bound to fail. The second declaration also failed because the defendant had never asserted a right to compel the claimant to grant a right of way.
6. Permission to amend was refused in substance because the proposed injunction and damages claim depended on the claimant’s rejected construction. Delay and the failure to seek interim relief were also relevant to the discretionary injunction claim.