Ramoyle Developments Ltd v Scottish Borders Council Court of Session (Outer House), 08 January 2019 [2019] CSOH 1; [2019] 1 WLUK 8
The case relates to the difference between submitting an application as required by a conditional contract and making an application as defined in planning regulations. The conditional contract between the prospective buyer, the developer, and seller, also the LPA, stated:
” As regards to the suspensive condition contained within Clause 2.2.2, the Purchasers shall lodge the application for planning consent with the local planning authority as soon as reasonably practicable following the date of purification or waiver of the suspensive condition contained within Clause 2.2.4 and no later than the date falling 6 months after the said date of purification or waiver. Following submission of the said application, the Sellers hereby undertake to the Purchasers not to do anything which could prejudice the progress of the application nor shall they take any action which could obstruct or materially impede the application process.
In the event that the Purchasers have failed to submit the said application for planning permission with the local authority by the expiry of the said 6 month period then either party shall be entitled to rescind the Missives (with no rights or liability due to or by either party) on serving written notice to that effect on the other before any subsequent waiver or purification of the said suspensive condition”. (para 4)
The issue before the judge was whether the submission of the planning application on the on-line portal without payment of the fees constituted “submitting” the application in accordance with the above terms.
One party argued that the ‘submission of a planning application’ should be interpreted in accordance with the legislation, which required the payment of fees for full submission, and the other argued that it should be interpreted in the context of the contract documents or ‘missives’
Note: In Scotland, the contract for your purchase is concluded by the buyer and seller’s solicitors exchanging letters. These letters are called ‘missives‘ and the original written offer is the first missive. The conclusion of the contract is called ‘conclusion of missives‘.
The judge agreed with the latter argument partly because the Council’s online system accepted and notified that an application had been submitted before payment of the fees.