Summary

The buyer had to procure practical completion of a new roundabout on the A120, a spine road and drainage works within two years of completion. It did not, and claimed an extension of time on the footing that the seller had unreasonably withheld approval to relocating an attenuation pond.

On the seller's application for summary judgment, the court held that its four update emails could not be read as requests for approval and, as a separate point, that the buyer had no realistic prospect of showing the seller caused the delay. Loss goes to a trial on quantum; the seller's claim to an interim payment of 15,150,000 pounds will be heard later.

Background and facts

The seller sold part of its land, with outline permission for up to 297 dwellings, and kept the rest for retail use and a petrol filling station.

Practical completion was due within two years of the completion date. It was common ground that the works were not finished by the deadline, whether that was 14 March or 28 March 2024.

The location of any attenuation pond required the seller's prior approval, which it could not withhold where the location was reasonably required by a relevant body and there was no viable or reasonable alternative. Paragraph 8.2 of Schedule 2 gave the buyer an extension of time where it was delayed by the seller unreasonably withholding or delaying approval to any matter needing it, including the location of any attenuation pond.

Under clause 1.3 a party asked for approval had 5 working days to respond. If it did not, a further request could be served, and silence for another 5 working days meant deemed approval. Requests could go by email.

In January 2022 the buyer's engineer concluded that the only viable location for the pond was to the east of the petrol filling station. Between March 2022 and October 2023 the buyer's technical coordinator sent the seller's named contact four emails about the roundabout and link road, each with a link to drawings and an invitation to raise questions or comments. That contact had left the seller in December 2021; the court assumed the buyer did not know.

The issue

The application was confined to the claim that the buyer failed to achieve practical completion on time. The seller accepted that its other two claims, on reasonable endeavours and on keeping it informed, were not suitable for summary judgment.

The buyer said the emails, carrying drawings that showed the relocated pond, were requests for approval: the parties communicated informally, and there was no commercial point in sending drawings for comment unless approval was sought. It also relied on a good faith clause.

The seller said no highway authority had required the pond or its relocation, and that in any event the emails could not be read as asking for approval, a point of construction the court could decide now.

The decision

The court declined to decide whether the highway authority had reasonably required the relocated pond. That might need expert evidence and was not fit for summary judgment. It did decide the construction of the emails. Their stated purpose was to keep the seller informed and invite comment, as Schedule 2 already obliged the buyer to do. None mentioned the pond.

On their natural and ordinary meaning and viewed against their contractual and commercial background I do not consider that the Emails, either alone or taken together, can or should be read as seeking approval for the relocation of the Attenuation Pond.Master Teverson, paragraph 83

Drawings showing the new location did not turn an update into a request. Email was permitted, but the request had to say what it was.

such a request needed to be made expressly in writing and not to be implied by providing links to road designs.Master Teverson, paragraph 91

The deemed approval machinery confirmed it.

the seeking of consent or approval was regarded under the SPA as a formal matter requiring a specific procedure to be followed.Master Teverson, paragraph 95

As a separate point, the court held the buyer had no realistic prospect of proving that the seller's withholding of approval delayed the works. In October 2023 the buyer's land director blamed the highway approval process. In March 2024 he wrote that the buyer had never said any of the delays were of the seller's making. The good faith argument failed with it: the late completion was not brought about by any wrong of the seller.

Persimmon's failure to carry out the Works in accordance with paragraph 2.2.1(e) was a distinct and separate breach for which Harding was not responsible.Master Teverson, paragraph 107

There was no other compelling reason for a trial of that liability issue. Quantum, the interim payment, the consequential relief and the form of order were left to further hearing.

Practical implications

An extension of time clause tied to the other side withholding approval only works if approval was asked for. Where the contract has a formal approval procedure, with response periods and deemed approval, the court will expect a request that engages it. A progress update with a drawing attached is not one, even if the drawing shows the change.

The danger is greatest where you must also keep the other side informed. Every update is then explained by that duty.

Your own correspondence will be read against you. Emails blaming a third party for delay, written before the dispute, can defeat a later case that the counterparty caused it.

Persimmon Homes Limited v Harding Estates (East Anglia) Limited and HIM Properties Limited [2026] EWHC 2481 (Ch), High Court of Justice, Business and Property Courts of England and Wales, Property Trusts and Probate List, Master Teverson (sitting in retirement), hearing 30 and 31 July 2026, judgment handed down 30 September 2026, case number PT-2026-000201. Defendants' application for summary judgment on the claim that the buyer failed to procure practical completion of infrastructure works within two years under paragraph 2.2.1(e) of Schedule 2 to a sale and purchase agreement of 17 September 2021. Held that the buyer had no real prospect of establishing an extension of time under paragraph 8.2 of Schedule 2. Quantum, the interim payment application and the form of order to be determined later.