Walter Lilly & Company Ltd v Mr Jean-François Clin
| Jurisdiction | England & Wales |
| Judge | Mr Justice Waksman |
| Judgment Date | 17 April 2019 |
| Neutral Citation | [2019] EWHC 945 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Claim No: HT-2015-000219 |
| Date | 17 April 2019 |
[2019] EWHC 945 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Mr Justice Waksman
Claim No: HT-2015-000219
David Thomas QC and Matthew Finn (instructed by Pinsent Masons LLP, Solicitors) for the Claimant
Simon Hughes QC and Tom Coulson (instructed by DLA Piper UK LLP, Solicitors) for the Defendant
Hearing dates: 26–28 March and 1 April 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
This is a claim brought by Walter Lilly & Co. Limited (“WL”), a building contractor, against Mr Jean-François Clin, the employer, pursuant to a JCT Standard Building Contract with Quantities (Revision 2, 2009), with amendments, entered into on 25 th September 2012 (“the Contract”). The works consisted of the removal of the entire interior and parts of the front and rear elevations of two adjoining properties at 48 and 50 Palace Gardens Terrace London W8 (“the Properties”). The Properties were to be rebuilt as a single dwelling with 6 floors including a swimming pool at basement level.
The Properties were not themselves listed buildings but they were in a Conservation Area. This meant that if the works entailed their demolition, Conservation Area Consent (“CAC”) was required from the local planning authority, being the Royal Borough of Kensington and Chelsea (“RB”).
Various planning permissions had been obtained before the works commenced in February 2013 but no CAC for the project as a whole had been sought. Following visits to the Properties in April and May 2013 by members of RB's planning department and after communicating with Mr Clin's architects, PTP Architects London Ltd (“PTP”), RB sent to PTP and WL, two letters on 17 July 2013 (“the July Letters”). These expressed the view of RB that CAC was required in the light of the demolition works undertaken and intended, and that to continue the works without CAC would constitute a criminal offence. Further, in that event, RB reserved the right to issue an enforcement notice. WL duly stopped work.
Ultimately, in June 2014, CAC was obtained so that the demolition work which was preparatory to almost all of the building work could continue. Effectively, therefore, progress on almost all of the project had been delayed by just over one year, in fact 53.2 weeks. WL claims that it is entitled to an Extension of Time (“EOT”) for the whole period of delay together with the loss and expenses caused thereby. Mr Clin for his part resists these claims and advances a mirror-image claim for liquidated damages.
The core question in this case is whether in fact CAC was necessary as RB maintained. If it was, then WL has to establish certain further matters before its claims can succeed. But if in fact no CAC was needed (Mr Clin's later applications for CAC were made expressly without prejudice to his contention that they were not necessary) WL accepts that it must lose the case.
THE IMPLIED TERM
On 19 January 2016 Edwards-Stuart J held a trial of preliminary issues in this case. These included the question as to what duty (if any) Mr Clin had as an employer under the Contract to obtain relevant planning permissions and consents for the works. Judgment was handed down on 24 February 2016 and parts of it were amplified in a supplementary judgment set out in the order of 5 May 2016. This decision was appealed and at this stage I need refer only to the key finding of the Court of Appeal which allowed the appeal in part. At paragraph 37 of the judgment of Lindblom LJ (with whom Davies and Flaux LJJ agreed), he said that the relevant implied term (“the Implied Term”) was as follows:
“the Employer will use all due diligence to obtain in respect of the Works any permission, consent, approval or certificate as is required under, or in accordance with, the provisions of any statute or statutory instrument for the time being in force pertaining to town and country planning.”
This was amplified in paragraph 38 which reads:
“The concept of the “Employer” using “all due diligence” to obtain planning permission-or any other relevant planning approval-for the “Works” would extend to an obligation to make a timely application for any such permission or other approval or ensure a timely application was made on his behalf to ensure sufficient information was provided to the local planning authority in support of the application, and to cooperate with the authority in the statutory process. A timely application would be one that assists each party in the performance of its obligations under the contract, and with a view to avoiding any delay to the “Works”.
WL submitted that from this one can extract three “Limbs” to the implied term to use all due diligence:
(1) Limb 1: the Employer must make a timely application for the relevant permission or ensure that one was made on his behalf; an application is timely if it assists each party in the performance of their obligations under the Contract and with a view to avoiding any delay to the Works;
(2) Limb 2: the Employer must ensure that sufficient information is provided to the local planning authority (“ LPA”) in respect of such application; and
(3) Limb 3: the Employer must co-operate with the LPA in the statutory process.
Mr Clin did not disagree with this formulation which obviously follows from paragraph 38 of the judgment.
Lindblom LJ added this at paragraph 40:
“the obligation for the obtaining of planning permission and other relevant planning approvals under the contract lies with Mr Clin as “Employer” under the implied term as to planning permission. The consequent allocation of risk is addressed in the relevant express terms of the contract.”
Although the obligation is directed to Mr Clin as employer, it is common ground that the acts and omissions of PTP in this regard must be imputed to him because of its role as architect responsible for planning and as the Employer's Agent to which it has also been appointed by Mr Clin.
THE ISSUES
These are best described by reference to WL's principal contentions and those of Mr Clin in response.
WL contends as follows:
(1) The demolition works which WL was required to carry out needed CAC;
(2) As at July 2013, no such consent had been obtained;
(3) In the circumstances of this case Mr Clin (through PTP) was in breach of the Implied Term;
(4) That breach amounted to both a Relevant Event for the purposes of clause 2.29 of the Contract and a Relevant Matter for the purposes of Clause 4.24 thereof; this would generate the rights to an EOT for a period of 53.2 weeks and a claim for loss and expense, with no liability for liquidated damages;
(5) As a result,
(a) WL is entitled to an EOT for the delay caused by the absence of CAC which is accepted to be 53.2 weeks;
(b) in addition, it is entitled to loss and expenses for that period; and
(c) by the same token, it is not liable to pay to Mr Clin liquidated damages for that period;
(6) Alternatively, the absence of the required CAC amounted to a Statutory Requirement as defined in Clause 1.1 of the Contract; if so, the same results as set out in sub-paragraph (5) above will follow.
As against that, Mr Clin contends that:
(1) No CAC was required;
(2) That being the case, there was no breach of the Implied Term, but even if CAC was required, there was still no breach;
(3) Mr Clin accepts in principle that if (contrary to his submissions in (1) and (2) above) he was in breach of the Implied Term, then the consequences set out in paragraphs 13(4) and 13(5) above will follow; and
(4) The alternative claim based on Statutory Requirement is denied in its entirety.
THE EVIDENCE
For WL, I heard from Andrew Postlethwaite, its Pre-Construction Director and for Mr Clin I heard from Satish Patel, a director of PTP, who was involved in this project from 2011 onwards, as well as from Mr Clin himself.
Each side also called an expert witness. For WL I heard from Dr Chris Miele, a chartered town planner and member of the Institute of Historic Buildings Conservation. He is the senior partner of Montagu Evans LLP, property consultants, based in Central London. For Mr Clin, I heard from John Bowles, BSc, Dip.TP, DipSur and also a chartered town planner. He is a Director in the Planning Department of Savills also based in Central London. They produced a joint statement of non-agreed matters on 24 January and of agreed matters on 25 January 2019.
So far as the lay evidence is concerned, there is not much by way of dispute on questions of primary fact. Where there is, for the most part, the very extensive contemporaneous documents, especially emails, are of considerable assistance in showing where the truth lies. In general terms, however, I found Mr Postlethwaite to be a reliable and straightforward witness. Mr Patel was less so for the reasons I give below when dealing with his evidence. Mr Clin generally gave his evidence in a straightforward manner but in truth it did not assist much on the issues.
THE LAW
Introduction
There is something of an overlap here between the legal debate before me on important questions relating to CAC, and the expert evidence which also deals in part with the same matters. Indeed, as will be seen, Mr Patel has and has had, his own particular view as to what the CAC regime requires. Ultimately, of course, the correct interpretation of that regime is a matter for the Court.
Conservation Areas-relevant legislation and policy
Section 69 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Conservation Areas Act 1990”), headed “Designation of...
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