Decision
73 In my opinion, Belpate was in breach of Condition A6 in its failure to get a final building approval before 13th December 1996. I make this finding on three grounds, each of which would be sufficient in itself.
74 The most significant cause of the delay between April and December 1996 was Belpate's failure to pursue satisfaction of Condition 72 with Mr. Fiander and Mr. Romanous prior to 19th August 1996. Belpate contended that it had retained appropriate experts to pursue satisfaction of Condition 72, and it was their task to pursue Mr. Fiander and Mr. Romanous. However, in my opinion, co-ordination of experts such as Mr. Fiander and Mr. Romanous is a task which developers must undertake by themselves or through agents, so that, even if there were defaults by Mr. Greig and Mr. Samrani in pursuing Mr. Fiander and Mr. Romanous, they are faults for which Belpate is responsible.
75 Even if I were wrong on that view, there was in my opinion fault in Belpate itself in relation to the delay to 19th August. I have made the finding of fact that Belpate did not properly instruct Mr. Greig or Mr. Samrani prior to August 1996; and Belpate did not in fact instruct anyone appropriately to deal with Condition 72, or ensure that this was being done, at any time prior to about mid-August 1996.
76 The third basis on which I am satisfied that Belpate was in breach of Condition A6 in failing to get a final approval before 13th December 1996 is that the plans necessary to satisfy Condition 72 were not drawn up until 31st October (Mr. Fiander's plans) and 11th December (Mr. Romanous' plans), and no satisfactory explanation is given for that delay. In my opinion, in the absence of reasons to the contrary, both these plans could and would have been completed within about eight weeks after proper instructions had been given; and proper instructions should have been given by about the end of April, so that the satisfaction of Condition 72 and the issue of a final building approval should have occurred by about July 1996 at the latest.
77 Explanations were offered on behalf of Belpate, in particular the allegation that there were new requirements introduced by Rail Estate and/or by the Council, delay by the independent experts Mr. Fiander and Mr. Romanous, and also delay by independent experts Mr. Greig and Mr. Samrani whose job it was to co-ordinate the efforts of Mr. Fiander and Mr. Romanous.
78 There is no explicit evidence of new requirements being introduced by Rail Estate or the Council after April 1996, which would affect the preparation of the drainage plans. Mr. Gruzman submitted that I could infer that there was a new requirement from the Council and/or from Rail Estate, because the third amendment of Mr. Fiander's plans on 30th October 1996 showed a second box culvert running across Rail Estate land, which had not been in previous plans, and which was not referred to in the deferred building approval, in particular Condition 72 of that approval. That submission has some support from Mr. Moody, who gave evidence that the requirement for this second box culvert was not implicit in the original approvals. On the other hand, an expert called for the plaintiffs, Mr. Barry, gave evidence that such a requirement was implicit in the original approvals, on the basis that, in the absence of a second box culvert, the water retention area on Belpate's property would not be effective.
79 On this aspect, I did not find Mr. Barry's evidence so convincing as to preclude the possibility of an inference that there was some new requirement made by Rail Estate or the Council which led to the alteration. However, although such an inference is possible, in my opinion it should not be drawn. Belpate could have led direct evidence of the making of this new requirement, and it did not. In those circumstances, where Belpate was in a position to lead direct evidence of the making of a new requirement, if it was made, but did not do so, I do not think the inference should be drawn.
80 Even if there was a new requirement from Rail Estate or the Council, that new requirement would have been known soon after April 1996 but for other breaches of Condition A6, namely the failure to instruct Mr. Fiander to deal with Condition 72 until mid-August 1996, and the failure to deal appropriately with Rail Estate, which I discuss shortly. Had those breaches not have occurred, the new requirements would have been known shortly after the issue of the deferred building approval in April 1996, and could have been dealt with promptly, because they involved only minimal alterations to Mr. Fiander's plans.
81 As regards the alleged delay by independent experts, I have already substantially dealt with that matter. The delays by Mr. Fiander and Mr. Romanous that appear in the evidence are not great: it appears that Mr. Fiander was contacted on 19th August, and his plans were completed on 31st October; while Mr. Romanous was contacted on 18th November, and his plans were completed on 11th December.
82 For the reasons given by Mr. Harris, I do not give any significant weight to Mr. Moody's evidence that problems were dealt with promptly. I considered Mr. Moody's oral evidence on this matter to be evasive.
83 In my opinion, there was also a breach of Condition A6 in Belpate's failure to get a final agreement with Rail Estate until 27th February 1997.
84 In the first place, there was a breach in failure to pursue this agreement, after issue of the deferred building approval, until 27th August 1996. Rail Estate's letter of 26th July 1994 was clear: Belpate could not reasonably have thought Rail Estate's requirements had been satisfied, given that the requirements included a written acceptance and the making of an agreement. The matter plainly required prompt action, at least by the time the conditional building approval was granted, because there needed to be a final agreement with Rail Estate before the building work started. I accept Mr. O'Mara's and Mr. Barry's evidence to this effect, and it is common sense. Furthermore, the matter was not a matter of specialist expertise, and so was one which had to be pursued by the developer or its agents; and in any event, there were defaults in the developer itself in failing to give instructions.
85 Furthermore, once Rail Estate's requirements were made known on 19th September 1996, there was further delay by Belpate in pursuing a hopeless case to avoid these requirements. The case was hopeless, because plainly all drainage from the site was not going to go into the Council's system, which was the only circumstance in which agreement with Rail Estate was not going to be required. The Council's system was being moved, and stormwater from the site itself was not going into the Council's system. The substance of this was pointed out by Mr. Fiander in his October 1996 facsimile.
86 It was claimed for Belpate that it was only following legal advice in trying to avoid having to reach agreement with Rail Estate. However, there is no direct evidence that Belpate had any legal advice supporting its attempt to get around Rail Estate's requirements, and I do not infer that any such legal advice was given. Mr. Crockett has displayed an attitude generally to the effect that written requirements by other parties such as banks and councils are not necessarily insisted on, and that there can be advantage in trying to negotiate so as not to have to comply with them, and he has pursued that attitude without needing the support of legal advice. In my opinion, where, as here, delays are caused by the unreasonable pursuit of that attitude, there is a breach of Condition A6. And finally, in any event, even if legal advice supporting the attempt had been obtained, I do not think this would fall within the category of a matter of specialist expertise in relation to which the lawyers would not be considered agents of Belpate.
87 In my opinion also, all these breaches materially contributed to the non-fulfilment of the condition relating to the time of registration of the strata plan. But for the first of the breaches, an unconditional building approval would have been obtained by about August 1996 at the latest. But for the second breach, there would have been an agreement with Rail Estate by about August at the latest, so that there would have been no ten week delay such as occurred between about mid-January and 1st April 1997. The work could have commenced in about September 1996, and probably would have concluded in about October 1997, with ample time to register the strata plan before 6th April 1998.
88 Against this, it is put that the builder could not have commenced anyway until about November 1996 because of other commitments, so that the building work would not in any event have been completed before December 1997; and furthermore, it took five and a half months after completion of the building to register the strata plan, so that the strata plan would not have been registered until about May 1998.
89 Even if I accept, for the sake of argument, that, having obtained an unconditional building approval and Rail Estate's agreement by about August 1996, Belpate would not have breached Condition A6 in choosing to delay commencement of the building until November 1996, to ensure that it was able to use its favoured builder, I would still find that the argument set out in the preceding paragraph fails.
90 In my opinion, if the building work had commenced in November 1996, it would have been completed by about December 1997, and there would have been registration of the strata plan, on the balance of probabilities, before 6th April 1998. There would have been no occasion for the plaintiffs to lodge caveats, and no delay arising from that circumstance.
91 In any event, to put the matter at its lowest, there would have been a very substantial chance that registration would have taken place before 6th April 1988, so that, again to put it at its lowest, the breaches by the developer materially contributed to the failure to have the strata plan registered within the allocated time.
92 For these reasons, in my opinion the purported rescission based on late registration of the strata plan was invalid.