Harris v Williams-Wynne
| Jurisdiction | England & Wales |
| Judge | Bernard Livesey QC |
| Judgment Date | 11 February 2005 |
| Neutral Citation | [2005] EWHC 151 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC03C01257 |
| Date | 11 February 2005 |
[2005] EWHC 151 (Ch)
IN THE IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
Bernard Livesey QC
(Sitting as a Deputy High Court Judge)
Case No: HC03C01257
Marc Dight (instructed by CKFT of London NW3) for the claimant
JK Quirke (instructed by Evans Roberts of Machynlleth, Powys) for the defendant
This is the official judgment of the court and I direct that no further note or transcript be made of it: vide CPR 39 PD 6.1.
This is the trial of the claimant's claim and the defendant's counterclaim for damages for breach of an agreement dated 21 April 1988 ('the agreement') for the sale of a piece of land ('the additional land'). The claimant had already in April 1997 purchased from the defendant a property called Berthoud Farm, Bryncrug, Nr Tywyn, Gwynedd which comprised a farmhouse with a modest amount of land. The agreement, which was specifically to provide additional amenity land adjacent to, and to be enjoyed with, the farmhouse, contained a covenant not to erect any buildings on the land the subject of the agreement. The claimant erected a building and, when he came to sell the property comprised in both titles, the defendant required him to provide compensation for breach of the covenant before he would enable him to give good title to his purchasers. The claimant denies that the defendant is entitled to compensation on the grounds that he has expressly or impliedly consented to the building being constructed and is barred from recovering compensation by laches, acquiescence, waiver or estoppel.
The property in question is a farmhouse in the Snowdonia National Park. The defendant's family had owned land in rural Gwynedd for years and a part of that, known as the Peniarth Estate, which comprised both agricultural and other land was owned by the defendant. Over the years various parcels of land had been sold with the houses standing on the land. The defendant usually took the farms 'in hand' and sold those farmhouses and buildings for which he did not have further use.
The claimant is a designer who lived and worked in London and occasionally abroad. He purchased the Berthlwyd Farmhouse in 1987 for the sum of £36,000 and thereafter used it for about three months per year for vacations for himself and his girlfriend. Very shortly after he arrived, he sought to purchase more land. The defendant was initially reluctant but eventually agreed to sell the additional land in circumstances which are in dispute.
The agreement was dated 21 April 1988 and contained the following covenants:
2. The Vendor … undertakes that if notice in writing is given to the vendor within twenty-one years from the date hereof the Vendor at the Purchaser's expense will execute any document required to transfer the said freehold interest in such land to the Purchaser or as the Purchaser may direct and use his best endeavours to obtain the concurrence of any other necessary parties
3. The Purchaser … in view of the land being within a National Park covenants for the benefit of the Vendor's retained land not to erect any buildings on the land the subject of this agreement.
At the request of the claimant the defendant's then solicitors registered the agreement at the Land Registry. It is probable that the claimant received a copy but promptly mislaid it and subsequently forgot about both the necessity for a formal transfer and registration of his own title and of the existence of the covenant. The defendant kept a copy of the agreement in his study at his own home and retained, at the back of his mind, the terms of the covenant.
While in Berthlwyd the claimant indulged his passion for gardening and set about designing an unusual garden, which incorporated terraces, walls, other structures and follies. In 1991 he made application for planning permission for the construction of a two storey garage and studio in accordance with detailed plans which were lodged. The overall size of the building was in excess of 2000 square feet, which is the size of a modern four bedroom house. A formal consent was given, which was subject to seven planning conditions, two of which are material. The first was the requirement that the development should be commenced within five years of the date of the planning consent. The second was that 'the building hereby permitted shall not be used otherwise than as an annexe to the adjacent dwelling house and, in particular, shall at no time be used as a separate self-contained unit of accommodation'. The reason given for this condition was that 'the building is not regarded as adequate for use as a separate dwelling house having regard to the relationship of the building to the existing dwelling house and its curtilage'.
The claimant contends, but the defendant disputes, that prior to the application for planning permission he had discussed his intentions with the defendant and the latter had supported him, suggesting that it would assist his case for obtaining planning consent if he were to say to the authorities that he was proposing to remove an old corrugated black garage on the land, which would be an improvement. The claimant also contends that he began implementing the planning consent, albeit on an ad hoc basis, towards the end of 1995, and that the defendant stood by while the building was being constructed until it was nearly finished.
What is clear is that by the autumn of 1995 the defendant had demolished the black garage, cleared the land on which it had stood and built a substantial stone wall whose function at that time was to retain a mound of earth and prevent its collapse. It appears from later photographs that this wall was incorporated into the building. The defendant lived at that time across the valley in a house known as Talybont. As a hobby he piloted light and microlight aircraft from a landing strip in his grounds, sometimes to travel long distances and sometimes just to take a tour of his estate, flying out once per fortnight on average. On one of those trips on 29 October 1995 he took an aerial photograph of the claimant's property which shows that the corrugated garage had been demolished, the land cleared and the wall built. There was, however, no trace of any foundations and no sign to suggest that the works were preparatory to the construction of any sort of building, rather than another gardening project of some sort. It is relevant that it was only on 7 December 1995 that the Technical Services Department of the local authority granted 'full plans' approval under the building regulations, which approval was valid for three years from that date.
The evidence of the claimant, supported by invoices for some of the work and the occasional photograph, demonstrates that the building work was carried out piecemeal in the following stages. The foundations were installed during the late summer of 1997. It was then not until the end of 1999 that further work began which resulted in the building rising from foundation level to first floor level by the spring of 2000. The roof was not begun until 2002. Between April and June 2002 the rafters were installed and the roof was slated in December 2002.
In early 2002 the claimant decided to sell the property and the additional land and the sale was handled by local estate agents called Welsh Property Services. By October 2002 a Mr and Mrs Johnson had agreed to buy at the price of £280,000. However, during the conveyancing process it was discovered that the additional land had not been registered. The estate agents contacted the defendant by fax in November 2002 and requested his help in resolving the matter. He did not reply. In December 2002 the claimant's solicitors formally contacted the defendant and his solicitors in an attempt to obtain a transfer. The defendant's solicitors did not reply until March 2003 when they supplied a copy of the agreement. They then made it clear that they would not transfer the additional land to the claimant without a further payment to compensate for the breach of covenant. On 2 April 2003 the claimant instituted proceedings claiming specific performance, a declaration and damages or equitable compensation. The defendant served a defence disputing the claim for specific performance and counterclaiming for damages for breach of covenant. Following an application for summary judgment, the defendant consented to an order for specific performance of the agreement and executed a transfer of the additional land on 1 October 2003. The sale to the Johnsons proceeded and exchange and completion took place on 20 and 28 November 2003 respectively. At that time the building was watertight but the interior remained unfinished.
The claimant submits that by reason of the defendant's refusal promptly to transfer the property he suffered financial loss which he is entitled to recover as damages for breach of the agreement. The defendant counterclaims damages for breach of the covenant contending that the additional land had been sold as amenity land and that, by building on it, the claimant had made a development profit of about £62,000, which should be shared between them equally.
The case has been argued over three days. I heard evidence from the claimant and from Miss Lucy Richardson who was his girlfriend from 1993 to 2002. I heard also from the defendant and from his wife, the Honourable Veronica Williams-Wynne. Expert evidence was given by specialist expert valuers whose evidence was not agreed. Much of the factual evidence related to events which happened in 1987, 1988 and in the period 1993 to 2002. It was predictable that the clarity of the memories of the witnesses would be affected by the passage of time, as indeed they were,...
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Harris v Williams-Wynne
...eventually granted in December 1995. 6 The judge described the building works carried out thereafter at paragraph 9 of his judgment [2005] EWHC 151(Ch): "… the building work was carried out piecemeal in the following stages. The foundations were installed during the late summer of 1997. It ......