Yewbelle Ltd v London Green Developments Ltd & Anor, Court of Appeal - Chancery Division, December 08, 2006, [2006] EWHC 3166 (Ch)
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Yewbelle Ltd v London Green Developments Ltd & Anor, Court of Appeal - Chancery Division, December 08, 2006, [2006] EWHC 3166 (Ch)
Case No: HC06C02478
Neutral Citation Number: [2006] EWHC 3166 (Ch)IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 08/12/2006Before :MR JUSTICE LEWISON- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Paul Morgan QC and Mr Mark Warwick (instructed by Philippsohn Crawfords Berwald) for the Claimant and Part 20 DefendantMr Edward Bannister QC and Mr Kevin Leigh (instructed by Segens) for the DefendantHearing dates: 21, 22, 23, 24 and 27 November 2006- - - - - - - - - - - - - - - - - - - - -JudgmentMr Justice Lewison: Introduction1. Directly opposite Colliers Wood underground station, in the London Borough of Merton, there is a triangular site between the intersections of Merton and Colliers Wood High Streets, Christchurch Road and Priory Road. It consists of:i) A 17-storey pre-cast concrete office building built in the 1960s. It is often called the Brown and Root Tower (after its principal tenant, for many years, Brown and Root) or simply ``The Tower''.ii) A circular 5-storey multi-storey car park constructed at the same time as the Tower.iii) An open space to the north (with a small surface car park). 2. The property was owned by Knightsbridge Green Limited (``KGL''), a subsidiary of Golfrate Holdings Limited (``Golfrate''). KGL entered into a contract to sell the property to London Green Developments Limited (``LGD''). After the date of the contract KGL transferred its interest to a sister company, Yewbelle Ltd. LGD was not bound to complete until the seller had entered into an agreement with the London Borough of Merton (``LBM''), as local planning authority, under section 106 of the Town and Country Planning Act 1990 in the form of a draft attached to the sale contract, or in substantially the same form. Some eight or nine months after the date of the contract, no section 106 agreement had been completed. Yewbelle now claims that the contract has been discharged. The question is whether Yewbelle is right.3. I heard evidence from Mr Julian Lobetta, Yewbelle's solicitor; Mr Sean Silk, its planning consultant; and Mr Philip Green, the moving spirit behind LGD. Mr Aziz and Mr Hughes are the moving spirits behind Golfrate and its subsidiaries. Neither of them chose to give evidence.The facts4. The Tower and the multi-storey car park are unattractive buildings and the whole site is ripe for redevelopment. Indeed, the Tower has been voted one of the ugliest buildings in London. There is therefore much local interest, and some political pressure, to see it redeveloped. In April 2002 LBM produced a planning brief in respect of the overall site in order to encourage potential redevelopment. The planning brief included the statement that as part of the development LBM would want to see a community use, such as a public library, on the ground floor of the Tower. On 30 January 2003 a firm of architects submitted a planning application for the development of the property. It was allocated reference number 03/P0202 by LBM on 7 February 2003. The planning application itself identified, in outline, the steps to be taken as part of the development. The key elements of the proposed development were: the conversion of the Tower into flats, the erection of two six storey extensions to the Tower (north and south), the demolition of the multi-storey car park and its replacement by a ten storey building and the creation of a public park. Overall the development would consist of 226 residential units, 370 square metres of retail space, 629 square metres for ``a new public library facility'', a café/bar and 876 square metres of business and office space. The site covered by the planning application included not only the property owned by KGL, but also a small rectangular parcel of land at the south eastern corner, which was thought at the time to be owned by LBM. Part of the library was to be constructed on that parcel. LBM's planning officers recommended the grant of the application subject to the completion of a section 106 agreement and various conditions. LBM were particularly keen on the library, which LBM's officers later described as one of the Council's key aspirations. On 11 March 2004 LBM resolved to grant planning permission subject to the completion of a section 106 agreement and to various conditions. Heads of terms listed 16 items that were to appear in the section 106 agreement. None of those terms specifically related to the library.5. Once the resolution to grant planning permission had been passed, work started on a section 106 agreement. By September 2004 a draft section 106 agreement was in existence. At this stage Golfrate put together a sales pack inviting buyers for the property. At the same time as looking for a buyer for the property, KGL's then solicitors worked towards finalisation of the section 106 agreement. By December 200...See the full content of this document
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