The Court of Appeal recently reviewed an agreement where the
developer was obliged to use "reasonable endeavours" to
resolve matters with third parties prior to the longstop date.
Matters had not been resolved within the 10 year period, so an
"Acceptable Planning Permission" had not been obtained
and therefore the developer argued that an overage payment of
£1.4 million was not triggered. The Court of Appeal
considered whether the developer had used "reasonable
endeavours" to resolve matters.
The developer argued that in using "reasonable
endeavours" it was entitled to have regard to its own
profitability and its ability to procure funding.
The Court held that the structure of the interplay of the
contracts, including the conditionality that one contract had on
another had created the difficulty in procuring funding. This
structure was of the developers own making and therefore, the
constraints it had created on obtaining funding was self-imposed.
The developer
