Sheriff court case considering the interpretation of missives for a property in Ellon. Missives were concluded on 9 June 2010 and provided for a date of entry of 6 August 2010. The following clauses (from the Aberdeen and Aberdeenshire standard clauses) were incorporated:
“(i) So far as the Seller is aware the Property is not affected by:-
…
(g) any proposals, applications or re-development plans affecting the Property or any adjacent or neighbouring property which could reasonably be considered to be detrimental to the Property.
(ii) Without prejudice to the foregoing, the Seller warrants that he has not been served with nor received any neighbour notification notice issued in terms of planning legislation by any third party. If such notice is served on or received by the Seller prior to the date of settlement, the Seller will immediately forward the notice to the Purchaser’s Solicitor. If the proposals contained in the notice would have a materially detrimental effect on the Property the Purchaser will be entitled to resile from the Missives without penalty due to or by either party.”
The sellers then sent the purchasers a letter (dated 27 July) purporting to re-open the missives and changing the date of entry to 5 August 2010. The purchasers replied (on 30 July) accepting the terms of the seller’s letter and again concluding the missives.
When the purchasers moved into the property following settlement they discovered a handwritten note from the sellers attached to a letter (which had been received by the sellers on 15 July) to the sellers from Aberdeenshire Council. The letter advised that the Council had published the proposed local development plan and that it included a proposal for development on or adjacent to the property. The notice and plan were, it was said, being issued to the sellers in line with regulation 14(2) of the Town and Country Planning (Development Planning) (Scotland) Regulations 2008. The purchasers raised an action for breach of contract.
The sellers argued:
- that the notice was not a “neighbourhood notification notice”; and
- that the warranty in the missives applied as at the date of conclusion of the “original” missives (5 weeks before the Council’s letter was received) and not as at the date the “amended” missives were concluded (2 weeks after receipt of the letter).
The sheriff principal, agreeing with the sheriff’s interpretation of the missives, rejected these arguments.
The neighbour notification notice
The sellers had argued that “neighbour notification notice” is a term of art derived from the statutory scheme contained in The Town and Country Planning (General Development Procedure) (Scotland) Order 1992. In terms of that order, the owner of ground required to intimate his intention to develop its property to its neighbours. However, the scheme was changed when the 2008 Regulations (above) came into force, making the local authority responsible for intimating proposed planning developments (and containing no reference to a “neighbourhood notification notice”). The sheriff principal found that, nevertheless, the clause referred to “any neighbour notification”, the word ‘any’ being significant and indicating that the clause was intended to cover planning legislation as a whole[1].
The warranty
As regards the warranty, the sellers argued that the contract was concluded on 9 June and that the sole purpose of the later letters was to amend the date of entry (effectively meaning that the warranty was given as at 9 June). However, the sheriff principal found that the best approach was to consider what the parties intended to be the date at which the warranty was given. The parties agreed that the warranty was as at the date of conclusion of the missives rather than as at the date of the original offer. The effect of the later letters was to create a new date for the conclusion of missives. Thus the natural consequence of amending the date of entry was to create a new date as at which the warranty was given.
The sheriff principal refused the appeal and agreed with the sheriff’s finding to the effect that the sellers were in breach of contract.
The full judgement is available from Scottish Courts here.
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[1] In reaching that conclusion the sheriff principal was “comforted by the thought that it would surely be startling to decide that the body of Aberdeen and Aberdeenshire solicitors expert in the law and practice of residential conveyancing would not have been aware of the changes in the legislative framework and would not have considered whether or not the standard clauses should be amended to take that into account” (which would have been the inevitable result if the seller’s construction of the clause had been preferred).
