Norfolk Homes Ltd v North Norfolk District Council & Anor (Rev 1)

Summary judgment should be granted only where the defendant has no real prospect of successfully defending the claim. A prospect is real if it is more than false, fanciful or imaginary. Where the application raises a short point of law or construction, the court may decide it if the evidence is sufficient and the parties have had an adequate opportunity to address it. That jurisdiction should not be exercised where the issues require fuller consideration, including questions about the interaction between planning obligations, separate permissions granted under section 73 of the Town and Country Planning Act 1990, contractual interpretation and implied terms.

Norfolk Homes sought summary judgment on a Part 8 claim for declarations that residential development in Holt was not subject to obligations in a section 106 agreement and for removal of the agreement from the Land Charges Register. The agreement had accompanied an outline planning permission. That permission was subsequently varied under section 73, and development proceeded under a later permission.

The Council resisted the claim, relying on the wording of the varied permission, the planning context and matters including approval of reserved matters and payments made under the agreement. The central question was whether the claim could properly be determined summarily or whether the construction and related legal issues required fuller consideration.

1. Application refused. The Council had a real prospect of successfully defending the claim. The court therefore refused summary judgment and directed the parties to seek to agree consequential matters.
2. The applicable test was not disputed. Under CPR 24.2, summary judgment may be given only where the respondent has no real prospect of successfully defending the claim. A prospect is real if it is not false, fanciful or imaginary.
3. A short point of law or construction may be decided on a summary judgment application where the court has all evidence necessary for proper determination and the parties have had an adequate opportunity to argue the issue. That condition was not satisfied here.
4. The claim raised substantial questions, including the relevance of the planning context to construction of the section 106 agreement; the effect of later permissions under section 73; the relevance of the decision in Lambeth v Secretary of State for Housing Community and Local Government [2019] 1 WLR 4317; whether the Council faced a technical trap; and the legal significance of the payments and the affordable-housing priority.
5. The court recorded the undisputed principles of contractual interpretation and implication of terms, but did not finally determine their application to the agreement. The available wording, the section 73 permission and the wider planning context meant that the Council’s defence could not be characterised as having no real prospect of success.