Background
Under a 2021 sale and purchase agreement, Harding Estates sold Persimmon land with outline permission for up to 297 homes. Persimmon agreed to procure infrastructure and drainage works serving its development, Harding’s retained land and land owned by HIM Properties. The works included a new A120 roundabout, a spine road and an attenuation pond, and were to reach practical completion within two years of completion of the land sale.
Persimmon did not complete the works by the contractual deadline in March 2024. It contended that it was entitled to an extension because Harding had unreasonably withheld or delayed approval of a relocated attenuation pond. Persimmon relied principally on four emails sent to a former Harding employee between March 2022 and October 2023, each providing links to evolving road-design drawings and inviting questions or comments. After Persimmon brought proceedings seeking declarations and an injunction, the defendants sought summary judgment on liability, damages to be assessed, and an interim payment.
The Court’s Holding
Master Teverson granted the defendants summary judgment on liability for Persimmon’s failure to complete the works within the contractual period. The four emails were progress updates fulfilling Persimmon’s duties to keep Harding informed and invite comments; on their natural meaning, they were not requests for approval of the pond’s relocation. Neither their text nor their subject lines mentioned the attenuation pond, and placing its proposed location in linked drawings did not convert the emails into approval requests. Given the agreement’s formal consent machinery, Persimmon needed expressly and in writing to identify the relocation and request Harding’s approval.
The court separately held that Persimmon had no realistic prospect of proving that Harding’s conduct caused the delay. Contemporary correspondence attributed delays to the highway authority’s technical-approval process, and Persimmon itself had acknowledged in March 2024 that it had not previously alleged the delays were Harding’s doing. The court therefore rejected Persimmon’s reliance on the extension-of-time provision and its argument that Harding was taking advantage of its own wrong. Quantum, including whether Harding suffered any recoverable loss, remained for trial, and the request for an interim payment was left for a later hearing.
Key Takeaways
- Contractual progress updates and invitations to comment did not amount to requests for consent where they never expressly identified the matter requiring approval.
- A party invoking an extension-of-time clause must show both an unreasonable withholding or delay of approval and that this conduct caused its delay in completing the works.
- Summary judgment resolved liability only; damages and the defendants’ requested interim payment remained undetermined.
Why It Matters
The decision underscores the importance of following contractual approval procedures precisely, particularly where silence may trigger deemed consent. Sending technical drawings to a counterparty may not preserve an extension claim unless the communication clearly states what approval is sought and why.
It also illustrates that an extension-of-time defence can fail independently on causation. Contemporary records attributing delay to third-party approvals may defeat a later contention that the contractual counterparty caused the missed deadline.