Summary judgment follows a dispute over an attenuation pond and contractual approval requirements.
The High Court has entered summary judgment against Persimmon Homes over its failure to complete infrastructure works by the contractual deadline, rejecting its case that it was entitled to an extension of time because Harding Estates had unreasonably withheld approval.
The ruling in Persimmon infrastructure deadline litigation concerned a sale and purchase agreement under which Persimmon was required to procure infrastructure and drainage works serving the development, retained land and other land owned by HIM Properties. The works included a new roundabout on the A120, a spine road and a surface water attenuation pond. The contractual completion period was two years from completion of the land sale.
The parties proceeded on the basis that the completion date was 14 March 2022, making 14 March 2024 the relevant deadline. The court noted that 28 March 2024 was also arguably the correct date, but the difference did not affect the summary judgment application. It was common ground that the works had not been completed by either date.
Persimmon argued that it was entitled to additional time under paragraph 8.2 of Schedule 2 to the agreement. That provision allowed an extension where delay resulted from the seller unreasonably withholding or delaying approval to a matter requiring its approval, including the location of an attenuation pond.
The dispute centred partly on four emails sent by Persimmon to Edward Saunders, who had been the defendants’ contact for the site. The emails, sent between March 2022 and October 2023, contained links to working drawings and invited questions or comments.
Master Teverson held that the emails were progress updates rather than requests for approval of the attenuation pond’s relocation. Their subject matter concerned the A120 roundabout and link road, and they did not expressly refer to the attenuation pond or ask Harding to approve its proposed location. The fact that the proposed location appeared in the working drawings was not enough to turn the emails into approval requests.
The court also held that the contractual approval mechanism required a request for consent or approval to be made expressly and in writing. The agreement allowed such requests to be made by email and contained a procedure under which consent could ultimately be deemed to have been given if a further request was not answered within five working days.
Separately, the court concluded that Persimmon had no realistic prospect of establishing that Harding’s conduct caused the delay. Contemporary correspondence attributed the delays to the highway authority’s technical approval process. Master Teverson noted that Persimmon had itself acknowledged in March 2024 that the delays had not previously been attributed to Harding.
The court therefore found that Persimmon’s failure to complete the works was a distinct breach for which Harding was not responsible. Persimmon had no realistic prospect of establishing at trial that it avoided that breach through the extension-of-time provision.
The judgment does not determine the amount of any loss. A further trial will be required to establish what, if any, loss Harding suffered, while its application for an interim payment will be considered at a further hearing.