West (Richard) & Partners (Inverness) Ltd v Dick
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE RUSSELL,LORD JUSTICE KARMINSKI |
| Judgment Date | 11 February 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0211-2 |
| Date | 11 February 1969 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J0211-2
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Justice Megarry)
Lord Justice Harman
Lord Justice Russell and
Lord Justice Karminski
The APPELLANT (Mr. D.C. Dick, Defendant) appeared in person.
Mr. JOHN WEEKS (instructed by Messrs. Peacock & Goddard, Agents for Messrs. Barlow Parkin & Co., Stockport) appeared on behalf of the Respondents (Plaintiffs).
(without calling upon Counsel for the Respondents)
This is an appeal from Mr. Justice Megarry who gave summary judgment in an action brought by the plaintiffs for specific performance of a contract relating to a property in Scotland. The form of the proceedings was under what is now I think Order 86 but is more familiar to my generation under the old Order 14A of the Rules of the Supreme Court. It provides that, at any rate where the contract is in writing and it appears to the Court that there is no substantial defence to the action, the Court may give summary judgment without going through the details of a trial. Here there is no doubt at all about the contract: the contract was made (as is not in dispute) by two letters, one of them of the 10th November, 1966, sent by a firm of Scottish solicitors on behalf of the vendors to the defendant, and the answer, a covering letter of the 10th December, 1966, whereby the defendant agreed to buy the property and, incidentally, to lease back a small part of it to a third party for the purpose of I think growing raspberries.
Now the material terms of the contract do not on the whole matter but the most important one for the present purpose was altered by a subsequent agreement between the parties and now reads as follows (I am reading from "G.H.M.5"): "This offer will be conditional upon planning consent being granted by the local authority following upon the application already lodged for use of the subjects of sale as a hotel and if such consent is not granted the purchaser will be entitled to resile from the contract".
Mr. Dick employed a firm of architects in Scotland for the purpose of making that application and that went forward before the Inverness County Council as the local planning authority. In the meanwhile drafts of the conveyancing documents were submitted to Mr. Dick and approved by him, and indeed were executed by the plaintiffs in escrow.
The crux came on the 13th March, when the Inverness CountyCouncil gave what they called a conditional consent. I must read that from Exhibit "G.H.M.9". It is headed "Conditional Consent. The County Council of Inverness". Then it refers to the relevant Acts and is addressed to Mr. Dick and his wife, who were going to be the purchasers, and it says: "In pursuance of their powers under the above-mentioned Acts and Orders the County Council of the County of Inverness hereby permit change of use of Lentran House, Lentran, from dwelling-house to that of hotel in accordance with the plans submitted to the Council and coquetted as relative hereto". Those were plans submitted by Mr. Dick's architect. "This permission is granted subject to the following conditions; (1) That before any alterations are commenced, approval of the Council shall be obtained" – that is to say that building permission has to be got before they are started. "(2) That the private access on to the trunk road be improved, together with the provision of an adequate visibility splay to east of the access, to the satisfaction of the County Surveyor". The consent, therefore, was not an unconditional or an absolute consent. One of the points taken by Mr. Dick, and I think the first point really in the case, is whether within the true meaning of clause 15 – that it is conditional on the planning consent being granted – it has been satisfied.
Now I am far from saying that in some circumstances a so-called "conditional consent" might not amount in effect to a refusal. But in this case the only condition of consent was about a sign and all that was involved was that Mr. Dick should provide "an adequate visibility splay" and a "No Entry" sign. Having done that he would have satisfied the local authority and there was nothing more for him to do: it did not involve him in any considerable expense at all. But Mr. Dick's real grievance is quite a different one. He finds that the building authorities and those concerned with the protection of people from fire have insisted or are insisting on some very considerable and rather onerous restrictions – not restrictions so much as a provision of hoses and fireproof doors and what not – which may,I doubt not, involve a good deal of expense on Mr. Dick. He says that those are conditions imposed as part of the planning permission and that he is entitled therefore to resile from the contract. I cannot take that view. The planning consent was given subject to very small conditions which really do not bother either us or Mr. Dick himself: but these other insistences were requirements which anybody turning a dwelling-house into a hotel in these days must, I should have thought, anticipate. Anyhow they are nothing to do with the vendors. They are imposed by an entirely different authority, namely the building authority, and are no part of the town planning scheme in itself. It does not seem to me, therefore, that, if it be the fact that Mr. Dick is involved in expense - even considerable expense - for the requirements of fire safety or fireproof doors or hoses, that is a matter which can be laid at the door of his vendors and entitle him to...
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