A developer that bought a site in Gloucestershire with the benefit of planning permission for a detached house, but ended up in a boundary dispute with the neighbours when it started clearance works, has won a legal battle to rescind the contract and recover the £150,000-plus purchase price.
Morgan J ruled that Harsten Developments Ltd is entitled to rescission of the contract under which it bought a building plot between 25 and 27 Wickwar Road, Kingswood, Wotton-under-Edge, from the owners of number 27, Derek, David and Oriel Bleaken, after finding that the Bleakens made misrepresentations in the auction particulars for the property.
Harsten bought the plot, with the benefit of planning permission for a two-bedroom house, at auction for £154,000 in October 2007, and began to clear the site the next month. However, when it removed part of a box hedge on the boundary with number 25, that property’s owners, John Devlin and Marianne Powell, sued claiming title to the land owned by the hedge.
Harsten, in turn, eventually brought proceedings against the Bleakens seeking to rescind the contract, and the two cases were heard together.
Now, Morgan J has ruled that the boundary issue is “clear” and that the true legal boundary between 25 and 27 ran along the middle line of the box hedge, as governed by the terms of a 1926 conveyance.
He ruled that a statement in the auction particulars that the Bleakens owned title to all of the box hedge was a “misrepresentation”, and added that the Bleakens also failed to disclose the existence of an easement of drainage through a pipe under the land in favour of the owner of the field to the north.
He also said that, on the balance of probabilities, the house permitted by the planning permission was not reasonably capable of being built, because it would be on top of the drain.
He ruled that the misrepresentations involved in the case were material and that Harsten relied upon them, and rejected the Bleakens’ claim that Harsten had affirmed the contract by submitting a fresh planning application for a four-bedroom house in January 2008.
He said: “Accordingly, I determine that Harsten is entitled to rescind the agreement for sale dated 4 October 2007 and the transfer dated 1 November 2007. Rescission will be given effect by harsten retransferring the land to the Bleakens and the Bleakens repaying the purchase price to Harsten together with interest.”
He ruled that Harsten is also entitled to damages for other expenses, but said that the developer had attempted to “inflate” its damages claim and “mislead the court” by submitting invoices for £10,000 for site clearance work. As a result, he said that he would award no damages under that head. However, he allowed other sums.
Harsten Developments Ltd v Bleaken and others Chancery (Morgan J) 9 October 2012
Devlin and anr v Harsten Developments Ltd Bristol County Court (Morgan J) 9 October 2012
Rajinder Sahonte (instructed by Wards) for Mr Devlin and Ms Powell
Malcolm Warner (instructed by Henriques Griffiths) for Harsten
Jamal Demachkie (instructed by TLT Solicitors) for Bleakens
