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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Kingerlee Holdings Ltd v Dunelm (Soft Furnishings) Ltd [2013] EWHC 47 (Ch) (21 January 2013) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2013/47.html Cite as: [2013] EWHC 47 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/01/2013

Mr Justice Mann :

Introduction and procedure

1. This is an application by the claimant for summary judgment on a claim based on an agreement for a lease. The claimant is the proposed grantor and the defendant is the proposed grantee. The property which is to be subject to the lease is one of three units on Meadowside Retail Park, Lamarsh Road, Oxford (Unit C) which at the time of the agreement was to be constructed by the claimant. The agreement contains complicated provisions for the construction of the work and determining the point of time at which the lease should be granted. It also contains a postponement of the date on which rent should become payable and further provisions which further postpone that date in the event of certain delays in the procedure. Mr Leader, who appeared for the defendant, described the provisions as "labyrinthine"; I agree with him.
2. The parties are in dispute as to whether or not there is as yet an obligation on the defendant to take the lease and as to the extent of the postponement of the rent payment date. The claimant says that it has done what is necessary in order to trigger the obligation to take the lease and that there is no, or alternatively only a limited, postponement, of the rent payment date. The defendant says that it is not obliged to take the lease yet because the claimant has not served a valid notice which is required to trigger the obligation to complete. Alternatively, if the obligation has arisen, then there is, on the facts, a limited postponement of the rent payment date which is more favourable to the defendant than the claimant's limited postponement. This application is made because the claimant maintains that the defendant's contentions are sufficiently groundless as not to amount to a sustainable defence, and the claimant seeks a declaration as to the rent commencement date and an order for specific performance (in the sense that the defendant should execute and deliver a counterpart lease). The defendant says that the construction is not all that clear, and the matter should go to trial.
3. The main issues between the parties are questions of construction of the agreement. It appears that there is a good case for saying that there would be no additional evidence required at a trial. Such cases, if sufficiently straightforward, can usefully be the subject of a summary judgment application.

"This raises the question how the court should proceed where the issue raised is a pure point of construction which can be as well determined on a summary application as on a full trial (or a trial of preliminary issues), because it will not be affected by evidence. It seems to me that if at the end of the argument the court comes to a clear view as to the correct construction, the court has jurisdiction to grant summary judgment under CPR 24.2 on the basis that a trial would have no realistic prospect of causing it to reach a different judgment." (per Toulson LJ in BBC Worldwide Ltd v Bee Load Ltd [2007] EWHC 134 (Comm)).

Miss Shuman, for the claimant, said that this was such a case in relation to both the principal issues. Mr Leader, for the defendant, says that it is not that straightforward.

4. The application for summary judgment was issued and listed for hearing in the applications court. It duly came on for hearing in that court in the normal way, with both parties apparently expecting it to be dealt with. On any footing it was manifestly inappropriate for that court, because pre-reading, argument and judgment would obviously have taken a lot longer than the prescribed 2 hours available in that court. While the witness statements were short, the relevant agreement is not, and it was complex, as will appear. Merely pre-reading the relevant parts (which was most of it) took a significant part of that time; argument took the best part of the day and this judgment took some hours to write. It was a hopeless candidate for the normal applications court, and ought to have been identified as such so that it could have gone off to be heard as an application by order. In fact, as things turned out, the parties have benefited from their lawyer's failure to perceive the proper course because I was available to take the case out of the normal court, and devote a longer time to it, though that can hardly be described as fair to other litigants.
5. When the complexity of the case became apparent it also became apparent that it might well be too complex to be dealt with at a summary judgment application. However, it turned out out to be a question of construction in relation to which there was no real element of disputed fact. It therefore became a candidate for Toulson LJ's approach. While the case cannot be described as simple, it is hard to see how any further relevant material on the construction point could be usefully deployed at a trial. The alternative case of the defendant, being based on a planning shortcoming which (as will appear) has absolutely no effect on the defendant or its operation of its premises, is wholly lacking in anything other than purely technical merit, if indeed it has that, and if correct is worth no more than £32,000 to the defendant. That being the case, that is an additional reason for considering carefully whether or not this construction, which is certainly not a short and straightforward one, is one which can nonetheless appropriately be dealt with on a summary judgment application.

The agreement and the dispute

6. The defendant is the operator of various substantial stores which sell home furnishings and the like. It agreed to take a lease of Unit C on the Meadowside Retail Park as an additional store. It was to be the anchor tenant of that park. There were to be two other units developed – one to be built for Halfords and the other for Hobbycraft.
7. The agreement for that lease, which is the subject of this action, is dated 6^th October 2010. At that date the building contract had not been let. It was necessary to get planning permission for the development. Unsurprisingly, the agreement contains various provisions linking the obtaining of permissions and the building of the relevant premises to the obligation to take the lease.
8. It would have been nice to have been able to introduce the relevant terms of the agreement into this judgment by a narrative which would be able to introduce the relevant provisions of the lease into a storyline in a manner which showed how they unfolded from one to the other so as to assist making sense of them all. However, their interlocking nature means that that is not possible. Accordingly I set out the relevant provisions in the Appendix to this judgment and will try to make sense of them by referring to them in this the body of the judgment. In what follows expressions with capital letters are expressions which are defined in the agreement.
9. Clause 12 deals with the grant of the lease. It can be seen from clause 12.1 that the grant is to take place on the Lease Completion Date. That expression is defined to be 10 days after the Practical Completion Date (or a later date which does not matter for present purposes) – see the definition. That throws one to the definition of Practical Completion Date which defines it by reference to Practical Completion (see the definition) and clause 6. This form of completion is, as one would expect, completion of the building works (the "Developer's Works").
10. I shall ignore clauses 6.1 and 6.2 for the moment. Of more central relevance are the provisions of clauses 6.3 and following which deal with "Practical Completion and Access". In fact they do not so much deal with Practical Completion as with a Practical Completion Certificate. Clause 6.3 provides for a mechanism to allow the defendant to have notice of an inspection which was to take place prior to issuing a Practical Completion Certificate (and a defects certificate), and clause 6.4 provides for the convening of a meeting and the receipt of representations by the defendant before the issuing of the Practical Completion Certificate. It was common ground between the parties at the hearing before me that such a certificate is a Relevant Certificate for the purposes of clause 6. Clause 6.5 then deals with what should happen on the Anticipated Date of the certificate – the Agent either issues the Relevant Certificate (including a Practical Completion Certificate) in unqualified form, issues a Practical Completion Certificate in qualified form (the qualification relating to certain outstanding relatively immaterial snagging points), or not issuing a certificate at all. Clauses 6.8 to 6.11 provide for an expert determination of any disputes arising if a Relevant Certificate is issued and the tenant says it ought not to have been. It looks at this stage as though the grant of the lease should take place 10 days after the Practical Completion Certificate (see the definition of Lease Completion Date, albeit it refers to the Practical Completion Date rather than the certificate).
11. That, in outline, deals with the prerequisites for the grant of the lease. However, that grant does not generate an immediate obligation to pay rent. A draft lease which is annexed to the agreement provides that the initial rent shall be a peppercorn, and will only be a substantial rent on the Rent Commencement Date which is said to be:

"[Five hundred and sixty-eight days after the Access Date as per the Agreement for Lease subject to clause 6.14 thereof]"

However, as can be seen from the Schedule, clause 6.14 does not actually provide for that number of days. Clause 12.5 does that. Clause 6.14 provides for an extension of the Rent Commencement Date in certain events (to which I will come). However, it is sufficiently plain from the terms of the draft lease that there is an intended cross-reference to the full provisions relating to the Rent Commencement Date in the agreement. Thus the agreement provides for a rent-free period of 568 days, which is capable of being extended in certain events.

12. The agreement provides for the circumstances in which the tenant has access to the premises. The mechanism is that the landlord's agent issues an Access Notice, which is issued on the Access Notice Date (see the definitions). That act generates an Access Date (see again the definitions). From that date the tenant is to observe the same obligations as it would be under if there were a lease (except for the payment of rent) – see clause 11.4. The Access Date is also capable of being the Practical Completion Date, or any earlier date in which the tenant accepts possession of the premises for the purpose of commencing certain works – again, see the definition of Access Date. Before this mechanism is invoked, the defendant is apparently entitled to have a meeting with a view to making observations about the prospect of an Access Notice – see clause 6.1 and 6.2.
13. At this point it will be convenient to stop and consider how these provisions have given rise to the dispute in this case, and to set out some more of the relevant facts.
14. The operation of the completion mechanism depends on Practical Completion and a Practical Completion Certificate. The agreement contemplates one Practical Completion Certificate certifying practical completion of the whole of the Developers Works (see the definitions of the terms), and the definition of Practical Completion Certificate equates it with a Practical Completion Certificate issued under the building contract. However, the claimant did not go about things in that way. It issued what Miss Shuman called certificates of "sectional completion" – one for the building of the units, and one for the development as a whole. The one for the buildings was issued on 11^th June 2012. On the same day the defendant entered into occupation of its premises in order to carry out the Tenant's Works therein, and subsequently to prepare for trading. It is common ground that as a result this is the Access Date for the purposes of the agreement ("the date the Tenant accepts possession of the Premises ..."). On 27^th July it started "merchandising" the premises (fitting them out in preparation for trading) and on 9^th August it started trading.
15. The second (sectional) Practical Completion Certificate was issued on 19^th June, covering the common parts. However, Miss Shuman does not contend that Practical Completion for the purposes of the agreement took place on that date because a particular planning requirement had not been fulfilled by that date. That final matter fell in on 10^th July, and she contends that Practical Completion took place then because it was only on that date that the Planning Requirements were satisfied (see the closing wording of the definition of Practical Completion).. Since the Access Date was the 11^th June (as the defendant agrees) that means that there is a limited delay to the Rent Commencement Date under clause 6.14, with the effect that that date becomes 593 days from 11^th June (viz 25^th January 2014).
16. The first dispute turns on the circumstances of the Practical Completion Certificate. Clauses 6.3 and 6.4 require notice of an inspection, and of the intention to issue a Practical Completion Certificate to be given by the landlord's agent to the tenant. It is common ground that the claimant's agent did not give either. The defendant says that that means that no valid Practical Completion Certificate has been given (or at least not given for the purposes of the lease), and that therefore there is no Practical Completion Date as defined by the agreement ("the date when Practical Completion takes place as determined under clause 6") This has two consequences. First, since the Lease Completion date is 10 days after the Practical Completion Date, that date has not yet occurred either, so it is not obliged to take the lease. Second, if the Practical Completion Date has not yet occurred, the Rent Commencement Date is postponed under clause 6.14, and (on the facts) has not yet arrived. The claimant accepts that the notice and opportunities provided for by those two clauses were not given, but say that that is not fatal to the giving of the Practical Completion Certificate or to Practical Completion because the preceding steps are not, on the true construction of the lease, conditions precedent to Practical Completion or the issue of a Practical Completion Certificate. It must be born in mind, Miss Shuman says, that the Practical Completion Certificate is defined as a certificate to be issued under the building contract,not for the purposes of the agreement, and it would be inconsistent with that concept to hold up the issue of a certificate because of matters which the tenant wished to raise. Any breach of the provisions about prior notice and representations sounds in damages only, and since there was no material objection that the defendant could have taken, there has been no loss. Mr Leader disputes this last point, and points up some references to outstanding snagging as at the date of the issued certificates. Miss Shuman says that if there is a dispute about that, it is to be determined by the independent expert provided for by clause 6.8.
17. The second dispute relates to the size of a "totem" on the access road to the development. This is a large sign board bearing the names of the three occupiers, for the benefit of visitors. Permission had been given for an 8 metre high sign under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. In fact the claimant's builders built a 12 metre high version. This was outside the permission. Retrospective consent for the totem was given on 16^th August 2012.
18. The defendant took a point arising out of this. It says that the definition of Practical Completion provides that a certificate shall not be issued until the Planning Requirements have been satisfied, and that the creation of the over-sized totem means that those requirements were not satisfied as at the date of the Practical Completion Certificate and were not in fact satisfied until the restrospective consent was given on 16^th August 2012. That means that there is corresponding delay in the Rent Commencement Date, and a later date should be inserted in the lease than that contended for by the claimant.
19. This is a purely technical point. The totem is not part of the defendant's premises and it makes absolutely no difference to its occupation of, or trading from, the premises. If the point succeeds for the defendant it is purely on the basis of what one might think was unworthy opportunism. Nevertheless, the defendant advances it, and it has to be dealt with. A further point, based on the fact that an engrossment of the lease has not, as such, been delivered to the defendant was originally raised but not pursued by Mr Leader.
20. There are therefore two issues:

(a) The Practical Completion Certificate point, which, if the defendant is correct, means that the date for the grant of the lease has not yet arrived.

(b) The "totem" point, which , if the defendant is correct, means that a later date has to be inserted in the lease as the Rent Commencement Date than the claimant contends for.

The practical completion certificate point

21. The argument on this point turns on whether, on the true construction of clause 6.3 and following, the requirement to procure that the tenant has an opportunity to participate in inspections, and to make representations, is a necessary requirement for the issue of a valid Practical Completion Certificate, or for Practical Completion. Miss Shuman suggested that the inquiry was as to whether it was a condition precedent, but I do not think that that terminology matters. Mr Leader says it is. Miss Shuman says it is not, and that a breach sounds only in damages or in some other award by the independent expert.
22. There are at least two major reasons why, in my view, the claimant is right on this point. The first stems from the interaction with the building contract. This contract was not in evidence before me, and apparently it was not in existence at the date of the agreement, so it was not part of the factual matrix known to, or which could have been known to, both parties. Nonetheless, its existence was contemplated, and it was contemplated that it would contain a practical completion element, with a practical completion certificate. That contract would have its own mechanism for governing when practical completion would take place, and what the requirements for practical completion were. The agent would have to have regard to the terms of that contract, and the legitimate interests of the builder, in issuing his certificate. The issue of that certificate would be likely to have all sorts of consequences as between the developer and the builder.
23. The Practical Completion Certificate within the meaning of the agreement is one which was to be issued under the Building Contract – see the definition. If the argument of the defendant in this case is correct there has not yet been a valid Practical Completion Certificate because, in addition to the requirements under the building contract (whatever they are) there are other requirements under this agreement (to which the builder is not a party) before one can be validly issued (including fulfilment of the Planning Requirements – see the definition of Practical Completion). That would have the logical consequence of invalidating the Practical Completion Certificate for the purposes of the building contract, which is a most surprising conclusion. This is illustrated by the facts of this case. If the defendant is right, there is no valid Practical Completion Certificate under the building contract. Further, it would mean that the tenant could have held up the issue of such a Practical Completion Certificate, which would be almost as surprising. All this would certainly be likely to surprise the builder, and I think it unlikely that the parties to the agreement intended such surprises.
24. Mr Leader seeks to avoid this conclusion by saying that it is possible to have two Practical Completion Certificates – one under the building contract, and one under (and for the purposes of) the agreement between the landlord and the tenant. That would certainly be a logical way of going about constructing a mechanism, but it simply does not fit in with the wording of the agreement. The agreement is quite clear about what a Practical Completion Certificate is – it is "the statement of practical completion of the Developers' Works to be issued under the Building Contract". The whole of clause 6 is plainly talking about such a certificate, and not a parallel one. Mr Leader's way of resolving these problems is not open to him.
25. The second principal pointer is the nature of the obligation under clauses 6.3 and 6.4. Miss Shuman submitted that it is necessary for there to be clear words if the mechanism of prior notification is to be taken to be condition precedent for the validity of a Practical Completion Certificate, and that such clear words are not present. I do not think that that is the right way of putting it. Ultimately the process is one of construction, and there is no principle of construction that clear words are necessary to create a condition precedent. However, there are some words which are more capable of creating one than others, and here the wording used is not at all apt. The opportunity of the tenant to participate in the process leading up to a Practical Completion Certificate is not wording which expresses itself as going to the heart of the process. It is much more removed than that. All the relevant wording is in terms of what the landlord is to "procure". That is a constant theme. The wording is much more appropriate to impose an obligation on the landlord to allow participation than to inject requirements going to the validity of the certificate. This view is reinforced by the closing wording of clause 6.4 which leaves it to the agent to get on with his or her job, and by what is to happen on the Anticipated Date (clause 6.5). On that date the agent is to do one of three things, one of which is the issuing of the Practical Completion Certificate if he thinks it right to do so. There is no suggestion that that date can or should be affected by what the landlord has and has not managed to procure, so on that date the agent is free to do one of the three things specified in clause 6.5 – issue the Practical Completion Certificate (one of the two Relevant Certificates), certify the Anticipated Date to be the Practical Completion Date notwithstanding some unfinished works, or not issue the certificate. If the agent does the first of those, then that must be a valid certificate, and (although clause 6 does not, somewhat surprisingly, make it express), that must mean that Practical Completion for the purposes of the agreement has occurred.
26. The view is also reinforced by clause 6.7.2 and 6.7.3. Again, those clauses are couched in terms of what the landlord (Developer) must procure in terms of the Practical Completion Certificate. Although they do not go directly to the process described in clauses 6.3 and 6.4 (subject to one point), they do anticipate that a Practical Completion Certificate might be issued in circumstances to which the tenant might object (by reason of shortfall in the works or prematurity), and do not suggest that the validity of the certificate would be impeached thereby. Rather, they pre-suppose the certificate would be valid. In fact, it might be thought that one manifestation of prematurity is issuing a certificate before the tenant has been given its opportunities under clauses 6.3 and 6.4, in which case clause 6.7.3 does go to the heart of the validity of the certificate in those circumstances.
27. It has to be said that the agreement does run the risk of getting lost in its own complexity, and it is not always easy to reconcile the mechanics of the Practical Completion Certificate from the point of view of the Building Contract and its consequences in terms of the agreement. In particular, I have not found it easy to see how clause 6.5.2 works. However, that does not mean that my conclusions are wrong. Furthermore, if my views are correct then the consequences for the tenant are clear enough. If the tenant claims to have been disadvantaged in a real way then it may complain under clause 6.8 that the Practical Completion Certificate should not have been issued, and the independent expert can adjudicate on the point. If the claim is (as I believe it to be) that the effect of the Practical Completion Certificate is unfairly to accelerate the Rent Commencement Date, then the expert can undo that consequence under clause 6.9 All that works to produce a coherent mechanism.
28. In the circumstances I consider that the tenant's resistance to specific performance based on the failure to give it an opportunity to participate in the Practical Completion Certificate mechanism under clauses 6.3 and 6.4 fails.

The totem point – Planning Requirements

29. This is the second basis on which specific performance is resisted, and on the basis of which it is said the Rent Commencement Date has been postponed by reason of a late Practical Completion. The defendant's case is that the non-compliant totem means that the Planning Requirements were not fulfilled until 16^th August, when retrospective consent was given, so the Rent Commencement Date is postponed by 25 days under clause 6.14. This will make a difference of £32,000 in the rent payable once the rent starts.
30. This point derives from the definition of "Practical Completion" and in particular the closing words -

"and (for the avoidance of doubt) the Practical Completion Certificate shall not be issued until the Planning Requirements have been satisfied".

31. Permission for signage is said to be a Planning Requirement, so those Requirements cannot have been satisfied until 16th August.
32. The Defence took the point that on the wording of the definition, a Practical Completion Certificate could not have been issued until that date, and since there has been no attempt to issue one on or since that date, no valid Practical Completion Certificate has yet been issued. However, in his argument Mr Leader modified his stance. He agreed with Miss Shuman that the definition should be read as if the reference to the non-issue of a Practical Completion Certificate before the fulfilment of the Planning Requirements should be taken to be a reference to Practical Completion not taking place before then. That avoids the difficulty of requiring a second Practical Completion Certificate to make the scheme work in the present circumstances (a proposal that Mr Leader made in the context of his first argument but not in this context) and does produce something more potentially workable. It does, however, require some violence to be done to the wording of the definition. Nonetheless, since it is the agreed approach of both parties, and since it has some common sense underpinning it, I shall proceed on the same basis. The question therefore becomes one of whether Practical Completion took place on 10^th July (when Miss Shuman says the final Planning Requirement fell in) or on 16^th August, when Mr Leader says the final Planning Requirement fell in. The question underlying this dispute is whether the signage permission was a Planning Requirement within the definition in the agreement.
33. Breaking down the various elements of the definition one arrives at the following elements which are capable of making a Planning Requirement:

"all works and other steps required to be carried out … as a condition of any Necessary Consent"; or

"all … approvals which are required to be obtained as a condition of any Necessary Consent"; or

"all works and other steps … which are required to be carried out by the Developer pursuant to any Planning Agreement or planning consent".

34. Then there is an additional requirement in the closing words (the effect on the Tenant opening for trade). Mr Leader's skeleton argument was a little equivocal as to whether that additional requirement applied to all three previous elements, but his oral submissions made it clear that he accepted that it did, and in my view that is correct, as Miss Shuman submitted. That additional requirement is that those various matters be:

"required … before the Tenant can open the Premises for trade",

It is apparent (and is agreed) that the words "on or" can have no sensible meaning or effect and fall to be ignored.

35. There was a significant debate before me as to whether the signage permission fell within any of the first three parts of the definition of Planning Requirements. The sign was not covered by any Planning Agreement, so that sub-element is out of the picture, but Mr Leader said it was within the meaning of Necessary Consent, and so within one or other of the first two elements; or alternatively it was a "planning consent" (not a defined term) in the third. Miss Shuman said it fell within none of them. It was not a planning permission or planning consent. It was dealt with by a separate regime, namely the advertisement regulations referred to above.
36. The original signage permission (the "Signage Planning Permission" which is within the defined terms) is in evidence. It has the reference number "reference 10/00736/ADV" and approves a proposal in the following terms:

"Display of advertisements, 1 x totem sign with 2x adverts with individually illuminated lettering."

The defendant does not take any point on the fact that erected totem contained 3 adverts. The height is not specified in the consent, but the consent is cross-referenced to plans which presumably specified the height.

37. The permission contains certain express conditions (such as the maximum reflective luminance), but the construction at the specified height is not something "required to be carried out as a condition", or "required to be carried out pursuant to" the permission. It is something which has to be done if the benefit of the permission is to be obtained. However, again, no point was taken on this, and both parties treated excessive height as being something which would be a requirement within "Planning Requirements" if the consent itself was a document within the definition. I therefore turn to that disputed question.
38. The first inquiry has to be whether the signage permission is a "Necessary Consent". In order to qualify, the following conditions have to be fulfilled:

(i) The permission has to be necessary for the completion of the Developer's Works.


(ii) It has to be one of the "planning permissions" or "[an]other statutory consent" required for that purpose.

39. So far as (i) is concerned, I find that it is within this element. Developer's Works includes the Developer's Signage (see the definition), and the Developer's Signage means the signage permitted by the Signage Planning Permission. The Signage Planning Permission turns out to be the very permission to which I have referred above and covering the erection of the totem- "planning permission reference 10/00736/ADV". So the particular permission is something (I use that word deliberately so as not to pre-judge the next point) which is required for the lawful carrying out and completion of the Developer's Works.
40. So far as (ii) is concerned, one first has to construe "planning permissions". Those words here do not have capitals, so prima facie one does not look to the defined term "Planning Permission" to deal with this particular point. Miss Shuman's point is that there are legally two regimes – the planning permission regime, and the signage permission regime – each governed by their own legislative provisions. Therefore signage permission is not planning permission. Mr Leader submits that this argument is bad. The terms of the agreement make it clear that it falls to be treated as a planning permission, and there is nothing in the statutory regime which prevents it being treated as such – indeed, there are provisions in that regime which make it appropriate.
41. In my view Mr Leader is right on both counts. The statutory regime does not make it inappropriate to view it as a planning permission. The regulations are made under the Town and Country Planning Act 1990, which is a good start. It is strongly arguable that the totem would require permission under the Act because a "structure or erection" would require permission as a building – see the definitions in section 336. If that is the case then section 222 provides that consent under the signage regulations amounts to deemed planning consent. There is therefore nothing heretical in viewing it as a form of planning permission.
42. Turning to the agreement, it seems to me that it is right so to treat it. The most telling point is the definition of Signage Planning Permission - "planning permission reference [etc]". So the agreement itself treats it as a planning permission (no capitals). Furthermore, it refers to it as the "Signage Planning Permission". There could hardly be a clearer indication. This is reinforced, if reinforcement is necessary, by the defined term "Planning Permission". That expressly includes the Signage Planning Permission. It is obviously significant that the term chosen to cover both the Main Planning Permission and the Signage Planning Permission is the generic expression "planning permission". Furthermore, clause 4.1 requires the building works to be carried out in accordance with all "Necessary Consents". It would be surprising if this did not include the signage permission.
43. Accordingly, it is plain to me that the permission for the signage is a planning permission (no capitals) within the definition of Necessary Consents.
44. I would add two things on this point. First, if I had not come to that conclusion I would have concluded that the signage permission was an "other statutory consent" within the definition. It plainly is a statutory consent, and it is necessary for carrying out and completing the Developer's Works. I cannot see any sensible reason why it would be left outside the scope of what is on any footing a wide definition intended to catch all regulatory requirements.
45. Second, I have a sneaking suspicion that the absence of capital letters for the words "planning permission" in Necessary Consents is a mistake. I suspect that the draftsman intended to make this a cross-reference to the defined term, and I have difficulty in imagining why he would not wish to do so. However, I do not have to act on my suspicion.
46. Accordingly, the signage permission is within Necessary Consents. Furthermore, it is probably also a "planning consent" within the definition of Planning Requirements, though I do not need to spend time considering that further.
47. So far, therefore, the signage permission is within the definition of Planning Requirements. However, there is an additional element to that definition which Mr Leader has to demonstrate to be satisfied if he is to bring the permission within the full scope of that definition. It has to be something "required … before the Tenant can open the Premises for trade." He submits that this means "can lawfully open the premises for trade", rather than physically, and I agree with that.
48. It is at this point that Mr Leader's case breaks down. There is nothing in the evidence, and nothing has been demonstrated in argument, which shows that the existence of the contravening sign meant that the Tenant's opening of the premises for trade was unlawful. If a given shortcoming in planning permission was actually in respect of the demised premises the position might have been different. However, this totem was not on the demised premises. It was on the landlord's retained land. Its over-tall existence there in no way rendered the Tenant's trading unlawful. Nor is there any basis for saying, as Mr Leader sought to say, that the existence of the sign somehow exposed his client to the risk of enforcement action. I do not see how that is conceptually possible.. It might have exposed the Developer to enforcement action, because it was erected by the Developer on the Developer's land, but it was not made apparent to me how that might be brought home to the Tenant, much less how it might have been brought home so as to make the opening for trading unlawful.
49. Mr Leader sought to bolster his case by painting a more general picture to the effect that the purpose of the agreement was to make sure that the Developer had got all the planning requirements in place before the premises were open for trade. There was an incentive to do so in the form of a rental postponement if it did not achieve that. This argument is, with respect, hopeless. The agreement, labyrinthine though it is, makes the position plain. The Developer does not have to have all the planning requirements in place. It has to have them in place so far as non-compliance would make opening for trade unlawful. Were it otherwise a small act of non-compliance in a distant part of the site which has no real affect on anyone would postpone the rental payment date for the Tenant's premises, and that would be a commercial nonsense which the parties cannot have intended.
50. Accordingly, at the end of this analysis I find that the erection of the non-compliant totem, and the delay in getting permission for it until August, do not operate so as to bring about a postponement of the Rent Commencement Date. That date, to be inserted in the lease, shall be that contended for by the claimant.

Fitness for summary judgment

51. That determines the principal points in issue. The position is, in my view, sufficiently clear on the material that I have to enable me to conclude that on the points in dispute the defendant has no defence. As I have already indicated, there is no basis for believing that any other material would be available, or indeed admissible, at a trial which is capable of bearing on the decision, so I have all that a trial judge would be likely to have and can reach the same conclusion as he or she would reach.
52. For the sake of completion, I should record that Mr Leader submitted that there was a potential dispute of fact on the extent and existence of some snagging works as at the date of the Practical Completion Certificate, and whether those works meant that a Practical Completion Certificate should not and would not have been issued if his client had had an opportunity to participate in the deliberation process leading up to the Practical Completion Certificate. I agree that there may well be a dispute as to the extent and quality of some of the snagging works referred to in some emails, but that point does not go to the construction points and clearly established factual points on which my conclusions above are based. It does not affect my conclusions. Nor does it affect the grant of the lease. The expert can "postpone" the Rent Commencement Date if he thinks it fair to do so, but that is no basis for postponing the grant of the lease. The postponement can be dealt with separately.

Conclusions

53. Since the above decisions determine the points properly in issue in this litigation, it is appropriate to grant a decree of specific performance. It is also appropriate to grant a declaration as to the Rent Commencement Date, which will be that contended for by Miss Shuman.
APPENDIX

1. DEFINITIONS AND INTERPRETATION

1.1 In this agreement unless the context otherwise requires:

"Access Date" means (subject to clause 21) the earlier of 10 Working Days after:

(a) the Access Notice Date; and

(b) the Practical Completion Date.

or (if earlier) the date in which the Tenant accepts possession of the Premises for

the purpose of commencing the Tenant's Works.

"Access Notice" means the notice to be issued by the Employer's Agent stating that

the part of the Developer's Works which comprise the construction of the Premises

are completed and free of snagging items and provided that and for the avoidance

of doubt the Access Notice shall not be issued until the Measured Area has been

agreed or determined to be not less than 29,700 square feet and the following have

been sufficiently completed and/or provided and the following items of the

Developer's Works shall have achieved completion prior to issue of the Access

Notice:

(a) Drainage complete and surface drainage to Car Park complete.

(b) Sprinkler tanks installed.

(c) Live mains services available within the Premises.

(d) Fencing and slab to service yard and all service road yard area and accesses

to be complete and capable of trafficking by HGV's.

(e) The Planning Requirements have been satisfied.

"Access Notice Date" means the date of service on the Tenant of the Access

Notice.

"Building Contract" means the building contract entered or to be entered into by

or on behalf of the Developer for the carrying out of the Developer's Works

(whether or not also for other works) together with all its attendant and subsidiary

documents and which is substantially in the form of JCT Standard form of Building

Contract with Contractors Design 2005 Edition and subject to such variations as the

Developer agrees with the Building Contractor from time to time and which shall

be approved by the Tenant (not to be unreasonably withheld or delayed and which

approval shall also take into account any effect or perceived effect on the warranty

to be provided to the Tenant by the Building Contractor) and which shall have aminimum defects liability period of 12 months from practical completion.

"Developer's Signage" means the signage permitted by the Signage PlanningPermission and forming part of the Developer's Works;

"Developer's Works" means the works of design and construction of the Estate

(including the Premises the Remainder of the Development the Common Parts and

the Developer's Signage) in the location shown on the plan annexed as Appendix 5

in accordance with the Approved Design Documents and the Planning Permissions

together with the Planning Requirements.

"Employer's Agent" means Farrell & Clark of Tudor House, 35 Gresse Street,

London W1T 1QY…

"Lease" means the lease to be granted to the Tenant in accordance with this

agreement in the agreed form annexed at Appendix 2.

"Lease Completion Date" means (subject to clause 21) the tenth Working Day

after the Practical Completion Date or (if later) the tenth Working Day after an

engrossment of the counterpart lease is received by the Tenant's Solicitors.

"Main Planning Permission" means planning permission reference 09/00274/Ful

dated 31st March 2010 permitting the construction of the Developer's Works (other

than the Developer's Signage as the same is permitted by the Signage Planning

Permission);

"Necessary Consents" means all planning permissions and building regulation

consents and any other statutory consents required for the lawful carrying out and

completion of the Developer's Works or, as the case may be, the Tenant's Works.

"Planning Agreement" means a planning obligation pursuant to s.106 of the

TCPA or pursuant to the Highways Act 1980 which is a condition of the grant or

the implementation of a Planning Permission.

"Planning Permissions" means the Main Planning Permission and the Signage

Planning Permission;

"Planning Requirements" means all works and other steps which are required to

be carried out and approvals which are required to be obtained as a condition of any

Necessary Consent or which are required to be carried out by the Developer

pursuant to any Planning Agreement or planning consent on or before the Tenant

can open the Premises for trade.

"Practical Completion" means the practical completion of the Developer's Works,

excluding any landscaping which is awaiting the appropriate season and

disregarding any minor defects, shrinkages or omissions in the nature of minor

snagging items which do not prevent the Tenant from commencing the Tenant's

Works or from occupying the Premises and which it is reasonably anticipated by

the Employer's Agent will be completed within 14 days and (for the avoidance of

doubt) the Practical Completion Certificate shall not be issued until the Planning

Requirements have been satisfied.

"Practical Completion Certificate" means the certificate or statement of practical

completion of the Developer's Works to be issued under the Building Contract.

"Practical Completion Date" means the date when Practical Completion takes

place as determined under clause 6.

"Rent Commencement Date" means the date on which and with effect from

which the Principal Rent under the Lease shall commence to be payable in

accordance with clause 12.5 of this Agreement.

"Signage Planning Permission" means planning permission reference

10/00736/ADV dated 24th May 2010 permitting the construction of signage at the

Estate;

4. THE DEVELOPER'S WORKS

4.1 The Developer will (to the extent not already done):

4.1.1 at its own expense obtain all Necessary Consents for the Developer's Works;

4.1.2 as soon as reasonably practicable design and, construct the Developer's Works:

(a) in a good and workmanlike manner and in accordance with good building

practice;

(h) in accordance with the Necessary Consents for the Developer's Works.

5. INSPECTION AND INFORMATION

5.1 The Developer will convene monthly meetings, at which there will be present such

of the professional advisers and/or contractors for the Developer's Works as the

Developer or the Tenant may consider appropriate, for the purposes of consultation

and liaison with the Tenant and inspecting and reviewing the progress of the

Developer's Works. The Tenant shall be entitled to have its representative present

at those meetings.

5.2 The Tenant's representative will be entitled to express its views on any matter

relating to the Developer's Works to the Developer, but will not give or attempt to

give any instructions to any contractor or professional adviser.

6. PRACTICAL COMPLETION AND ACCESS

6.1 At least five Working Days prior to the intended date of issuing the Access Notice

the Developer shall procure that the Employer's Agent shall convene a meeting in

order that an inspection of the Developer's Works may be carried out to which said

meeting the Developer and the Tenant and/or their respective authorised agents

shall be invited by notice in writing served not less than five Working Days prior to

the intended meeting and the Developer shall procure that the Employer's Agent

shall afford to the Tenant or the Tenant's Surveyor on its behalf the opportunity of

making representations to him regarding the issue of the Access Notice and shall

further procure that the Employer's Agent gives proper consideration to any such

representations made by or on behalf of the Tenant but he will not be fettered by

them and will issue the Access Notice in accordance with this Agreement.

6.2 The Developer will procure that a copy of the Access Notice is forthwith served on

the Tenant after it has been issued.

6.3 Not less than ten Working Days prior to the date on which the Employer's Agent

intends to issue the Practical Completion Certificate and also the date on which the

Employer's Agent intends to issue the certificate of making good defects under the

Building Contract (hereinafter referred to as "Anticipated Date") (hereinafter

referred to as "Relevant Certificate") the Developer shall procure that the

Employer's Agent shall inform both the Developer and the Tenant by notice in

writing that it is the Employer's Agent's intention to make an inspection with a view

to issuing the Relevant Certificate on the Anticipated Date.

6.4 At least five Working Days prior to each Anticipated Date the Developer shall

procure that the Employer's Agent shall convene a meeting in order that an

inspection of the Developer's Works may be carried out to which said meeting the

Developer and the Tenant and/or their respective authorised agents shall be invited

by notice in writing served not less than three Working Days prior to the intended

meeting and the Developer shall procure that the Employer's Agent shall afford to

the Tenant or the Tenant's Surveyor on its behalf the opportunity of making

representations to him regarding the issue of the Relevant Certificate and shall

further procure that the Employer's Agent gives proper consideration to any such

representations made by or on behalf of the Tenant but he will not be fettered by

them and will issue the Relevant Certificate in accordance with the terms of this

Agreement and the Building Contract and his own judgment.

6.5 Upon the Anticipated Date the Employer's Agent shall either:

6.5.1 issue the Relevant Certificate; or

6.5.2 (in the case of the Practical Completion Certificate) certify the Anticipated Date to

be the Practical Completion Date notwithstanding any works of an unfinished

nature which would normally be the subject of a contractor's snagging list and

which do not affect or interfere with the proposed use and occupation of the

Premises by the Tenant and which it is reasonably anticipated by the Employer's

Agent will be completed within 2 weeks and which are to be remedied

expeditiously by the Developer at its own expense within two weeks following the

Practical Completion Date; or

6.5.3 not issue the Relevant Certificate and notify the Developer and the Tenant in

writing of a list of items to be completed and/or defects to be remedied before the

Relevant Certificate can be issued by the Employer's Agent.

6.6 In the event of the Employer's Agent notifying the Developer as in clause 6.5.3 the

provisions of clause 6.3, 6.4 and clause 6.5 shall be deemed repeated in extenso

herein until the Relevant Certificate is issued by the Employer's Agent.

6.7 The Developer shall procure that the Employer's Agent:

6.7.1 notifies in writing both the Developer and the Tenant of the issue of the Relevant

Certificate within three Working Days after the same has been issued;

6.7.2 does not issue the Practical Completion Certificate where there remain any

outstanding or snagging items of work which are anything other than of a minor

cosmetic nature;

6.7.3 does not issue any Relevant Certificate prematurely and in particular (but without

prejudice to the generality of the foregoing) does not issue the Certificate of

Practical Completion prior to the Access Notice Date.

6.8 If the Tenant is of the opinion that the Relevant Certificate should not have been

issued or that the Relevant Certificate has not been properly qualified on its issue

then the Tenant shall notify the Developer within five Working Days after a copy of

the Relevant Certificate has been delivered to the Tenant giving details of the

Tenant's objections and the Developer and the Tenant will endeavour to resolve

what (if any) action should be taken but if they cannot or do not do so within five

Working Days of the date of the Tenant's notice the objection not so resolved shall

be submitted for determination by an independent expert in accordance with

clause 6.10.

6.9 The Developer will use its reasonable endeavours to take whatever action it agrees

with the Tenant is required in consequence of the resolution of the objections of the

Tenant or alternatively whatever action is required as a result of the decision of the

independent expert but the issue of the Relevant Certificate may not be set aside.

However (and for the avoidance of doubt) the expert shall be entitled to postpone

the Rent Commencement Date under the terms of the Lease by such period as is fair

and reasonable in the circumstances.

6.10 The independent expert shall be a building surveyor of not less than 10 years

relevant experience in the field of building works and projects similar to the

Developer's Works to be appointed by agreement between the parties or failing

agreement by the President of the RICS or his deputy on the application of either

party.

6.14 In the event that the Practical Completion Date shall not occur within six weeks

from the Access Date then the Rent Commencement Date shall be postponed by the

period which commences on the date six weeks after the Access Date and ends on

the date of Practical Completion.

9. TENANT'S WORKS

9.4 The Tenant may as soon as practicable after the Access Date carry out the Tenant's

Works and open the Premises for trade and for those purposes only the Developer

will permit the Tenant and its contractors to enter on the Premises at any time after

the Access Date.

9.5 Any entry on the Premises by the Tenant under this clause will be on the terms set

out in clause 11.

9.6 The Tenant will, in respect of the Tenant's Works, comply with all the tenant's

covenants contained in the form of Licence for Alterations (in so far as applicable

bearing in mind the circumstances) as if such covenants were set out in full in this

clause 9 and references in the form of licence to the "Landlord" were references to

the Developer.

11. OCCUPATION BEFORE GRANT OF THE LEASE

11.1 Any occupation of the Premises by the Tenant prior to the grant of the Lease will be

by way of bare licence only.

11.2 Prior to the grant of the Lease the Tenant will have no estate, right or interest in the

Premises.

11.3 The Tenant shall cause no avoidable obstruction or interference with the

Developer's Works which are ongoing outside the Premises.

11.4 From the Access Date the Tenant will observe and perform the same obligations

(except for payment of rents) as are imposed by the covenants and conditions to be

contained in the Lease and be entitled to the same rights as are contained in the

Lease.

11.5 From the dates on which they respectively commence to be payable under clause 12

the Tenant will pay to the Developer a licence fee equal to the rent, insurance rent,

and other payments which would have been payable by the Tenant if the Lease had

been granted on the Access Date.

12. GRANT OF LEASE

12.1 On or before the Lease Completion Date the Developer will grant or procure the

grant of the Lease and the Tenant will execute and deliver to the Developer a

counterpart of it.

12.2 The Lease and its counterpart will be prepared by the Developer's Solicitors and

submitted to the Tenant's Solicitors (together with the engrossed Licence for

Alterations) for execution not later than five Working Days prior to the completion

date.

12.3 The contractual term of the Lease will be 15 years from and including the Lease

Completion Date.

12.4 The Principal Rent to be reserved by the Lease per annum will be the product of

£15 multiplied by the Measured Area Provided that the Principal Rent shall not

exceed £450,000 (subject to review as stated in the Lease).

12.5 (Subject to clause 6.14) the Rent Commencement Date will be five hundred and

sixty eight days after the Access Date. The Insurance Rent Commencement Date

will be the Access Date. The Service Charge commencement date will be 10

Working Days after the Practical Completion Date.