The case between Ramoyle Developments Limited and Scottish Borders Council was heard in the Court of Session. Raymoyle, a property developer, had agreed to pay the council £1,053,000 for a site with a view to regenerating it with a mixed development of retail, hotel and houses. The proposed sale of the land was dependent on various conditions, including a stipulation that the application for planning consent should be lodged within six months.
The developer submitted the application online just within the six months but the accompanying payment was not made until after the six-month period had expired. The council then tried to pull out of the land sale but the judge found in favour of the developer, saying that the online submission satisfied the time requirement.
The six-month period had expired at 23.59 on 22 November 2017. On 20 November 2017 at 16.48, the developer submitted an online application for planning permission in principle. The portal gives four options for payment and the applicant chose to pay by cheque. The fee was calculated as £3,609. The online planning portal immediately sent out an automated email confirming successful of the application. On 22 November 2017 at 15.59, a member of the council’s planning team emailed Ramoyle’s director confirmed the receipt and querying the fee, as she had calculated that the site was smaller and that the fee should therefore be £2,807. The developer sent a cheque on 23 November; council said that it was not received until 1 December.
However, immediately upon the expiry of the six-month period, and prior to receipt of the cheque, the council’s solicitor sent a fax seeking to rescind the sale of the land on the basis that the process for the planning application had not been completed in time.
Notwithstanding this, the council later granted planning permission.
The judge disagreed with basis of the council’s decision to try to halt the sale. “In my opinion the successful submission of an application under the system used by the Planning Authority for on-line submission satisfies the requirement to “submit” an application under condition 2.5.2. This is in accordance with the natural and ordinary meaning of the word “submit”. In addition. in my opinion it makes commercial common sense in this digital age for the pursuer to use the Planning Authority’s on-line submission system and comply with the provisions of that system. That system provided that an application is successfully submitted prior to payment of the fee by cheque.”
As a consequence, the council was not entitled to rescind the agreement, said the judge.