Walter Lilly & Co Ltd v Clin [2016] EWHC 357 (TCC) concerned a contract for the demolition, refurbishment and reconstruction of a property to form a single residence. Whilst the works were underway, the local planning authority, the Royal Borough of Kensington and Chelsea, wrote to the parties stating that the extent of the demolition was such that conservation area consent was required. Edwards-Stuart J held that a term should be implied into the contract that the owner would provide the authority with the information its planning officers required in order to process the application for consent, but not a term that consent should be obtained. This was not within the owner’s control.
The Judge said:-
“54. The reasonable man in the position of the parties would, in my view, have in mind that, in general, a person who wishes to develop his land will know either that he is likely to need planning permission or, in the case of a residential development, that he must satisfy himself that the development proposed is exempt from the requirement for planning permission. The same applies to conservation area consent where the property is in a conservation area.
- In principle, planning permission needs to be obtained in advance: it can be obtained retrospectively, but this is obviously risky. But even when applied for well in advance, everyone knows that planning permission cannot be taken for granted. For example, the prospects of planning permission being given may depend to a large extent on the attitude of owners of neighbouring properties. Similar considerations may apply to conservation area consent.
- In this case it seems to me to be obvious that the parties must have intended that someone should have the responsibility for applying for planning permission. This is not a case where, because nothing is said expressly in the contract, the parties could have intended that nothing should happen about planning permission: planning permission had to be obtained in order for the development to go ahead. In addition, it seems to me that it would be equally obvious to an informed bystander that the party best placed to obtain planning permission is the employer, not least because he is the party who knows well in advance what he wants to do. The contractor does not find that out until he is invited to tender, by which time it may be too late for planning permission or conservation area consent to be obtained in time. Any reasonable person would know that a failure to make a timely application for the necessary permission or consent might well result in delay (unless of course the contractor has indicated that is prepared to take the risk of carrying out the work without that permission or consent).
- It appears to be common ground that the primary responsibility for applying for planning permission rests with the employer. The essential point at issue between the parties is whether a term should be implied to the effect that the employer will ensure that planning permission is obtained, or whether there should be a more limited obligation – for example, to exercise reasonable diligence to obtain the necessary planning permission.”
The Judge said, at paragraph 67, that he could see no justification for imposing on either party sole responsibility for the consequences of capricious conduct by the local authority. For the contract to work it was not necessary that either party alone should bear that risk. The contract can work just as well if that risk is left to lie where it falls. It is a situation where, since the contract has not provided how the risk should be borne, no provision should be made.
The Judge concluded that the correct formulation of the implied term was not one for which either side contended.