Bristol Rovers v Sainsbury’s Supermarkets Ltd : [2016] EWCA Civ 160
Bristol Rovers v Sainsbury's Supermarkets Ltd : [2016] EWCA Civ 160
The Court of Appeal has upheld the judgment of Proudman J deciding that Sainsbury's have lawfully terminated a conditional contract to purchase the ground of Bristol Rovers FC, the Memorial Stadium. Philip Sissons appeared as junior counsel for Sainsbury's both at trial and on the appeal.
The contract had provided that Sainsbury's would buy the stadium for approximately £30 million if it was able to obtain an acceptable planning permission for the construction of a new supermarket on the site. Bristol Rovers had intended to use that sum to fund the development of a new stadium under a related agreement with the University of the West of England.
In 2013, Bristol City Council granted planning consent for the supermarket, but that consent was subject to onerous conditions. Sainsbury's made an application under s. 73 of the Town and County Planning Act 1990 to vary the relevant conditions, but that application was refused. After that refusal, Sainsbury's considered that they had complied with their obligations under the contract and took steps to bring it to an end. Bristol Rovers contended that Sainsbury's was under a duty to make a further s. 73 application or an appeal under s. 78 of the 1990 Act as part of the retailer's obligation to use all reasonable endeavours to achieve an acceptable store planning permission. Sainsbury's, amongst other things, argued that a further s. 73 application would constitute 'an Appeal' as that term was defined in the contract. Accordingly, it was under no obligation to make that application unless the parties first obtained a joint opinion from planning counsel that the prospects of a successful s. 73 application were at least 60%.
At first instance, Proudman J held that on a true construction of the contract Sainsbury's had not been obliged to make a further s. 73 application.
On this appeal, Bristol Rovers argued that the construction applied by Proudman J was wrong and that Sainsbury's owed a continuing duty to make a further s. 73 application or, alternatively, to lend its name to an application made by Bristol Rovers. The Court of Appeal (Lord Justice Floyd giving the only reasoned judgment) found that as a result of a separate agreement entered into between the parties in correspondence, Bristol Rovers were estopped by convention from asserting that Sainsbury's was obliged to make a further s. 73 application without first obtaining a positive opinion from planning counsel. Both parties were proceeding on the basis that a s. 73 application qualified as 'an Appeal" under the contract and it would now be unjust to permit Bristol Rovers to resile from that common assumption. Furthermore, Sainsbury's was not obliged to lend its name to Bristol Rovers to enable the club to make its own application because the relevant clause in the contract could not be construed as requiring Sainsbury's to do so in circumstances where it was not otherwise obliged to make the application itself.
Also reported by ITV - see details here
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