Mullberry Homes Ltd v The Council of the Borough of Barrow-in-Furness
| Jurisdiction | England & Wales |
| Judge | Cawson |
| Judgment Date | 13 January 2023 |
| Neutral Citation | [2023] EWHC 38 (TCC) |
| Docket Number | Claim No: HT-2022-MAN-000015 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2023] EWHC 38 (TCC)
HHJ Cawson KC
SITTING AS A JUDGE OF THE HIGH COURT
Claim No: HT-2022-MAN-000015
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
TECHNOLOGY AND CONSTRUCTION COURT (QB)
Manchester Civil Justice Centre
1 Bridge Street West,
Manchester M60 9DJ
Robert Sterling (instructed by Mullberry Homes Limited, Legal Department) for the Claimant
Wilson Horne (instructed by Brown Barron Solicitors) for the Defendant
Hearing dates: 12–15 December 2022
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10.30 am on 13 January 2023 by circulation to the parties or their representatives by email and by release to The National Archives.
HHJ Cawson KC:
Contents
| Introduction | 1 |
| Parties | 9 |
| Witnesses | 11 |
| Assessment of the witnesses | 16 |
| The Contract | 26 |
| Background to the Contract | 34 |
| Events following entry into the Contract | 67 |
| The Flass Lane Verge issue | 97 |
| The other preliminary issues | 106 |
| Mullberry's case | 106 |
| The Council's case | 129 |
| Determination of other preliminary issues | 138 |
| Preliminary observations | 138 |
| Implied terms | 145 |
| The Council's handling of the planning applications | 159 |
| Conclusion in respect of each of the preliminary issues | 177 |
| Consequential issues | 186 |
Introduction
The principal question that arises for consideration in the present case is whether the Defendant, The Council of the Borough of Barrow-in-Furness (“ the Council”), was entitled pursuant to clause 14 thereof, to determine by letter dated 18 June 2019, a contract dated 22 May 2018 and between the Council (1) and the Claimant, Mullberry Homes Ltd (“ Mullberry”), (2) (“ the Contract”), whereby the Council agreed to sell and Mullberry agreed to buy two plots of land on Flass Lane, Barrow-in-Furness (together “ the Property”), conditional on the obtaining a satisfactory planning permission.
On 21 July 2021, Mullberry commenced proceedings against the Council in the High Court in the Business and Property Courts in Manchester (Claim No. BL-2021-MAN-000077) (“ the Mullberry Proceedings”), seeking a declaration as to whether a verge (“ the Flass Lane Verge”) was included within the boundary of one of the plots of land, specific performance of the Contract (if necessary with an abatement in price) and/or damages for breach of contract and/or in lieu of specific performance.
Contemporaneously therewith, and apparently without knowledge of the proceedings commenced by Mullberry, on 30 July 2021, the Council commenced proceedings against Mullberry in the County Court at Preston (Claim No. H00PR955) (“ the Council Proceedings”), seeking a declaration that the Contract had been validly terminated pursuant to clause 14 thereof, and an order that Mullberry forthwith obtain the removal of a notice entered by Mullberry against the Council's title.
By Order dated 10 November 2021, the Council Proceedings were transferred to the Business and Property Courts in Manchester to be considered for case management together with the Mullberry Proceedings.
Subsequently, by Order dated 16 February 2022, HHJ Stephen Davies, sitting as a Judge of the High Court, gave directions in respect of the case management of both sets of proceedings, directing that the Mullberry Proceedings be treated as the lead claim, and that the two sets of proceedings be transferred to the Technology and Construction Court in the Business and Property Courts in Manchester for case management, and transferred also into the Shorter Trials Scheme (under CPR PD 57AB) for the trial of a number of preliminary issues, with me being designated as the judge for the purposes thereof.
The preliminary issues directed to be tried by the Order dated 16 February 2022 were the following:
“(1) Did the [Contract] include the Flass Lane Verge and/or the strip as defined and referred to in the statements of case in the claims?
(2) Did the [Contract] include any implied terms, including those for which the Claimant contends at paragraph 5 of its particulars of claim in the lead claim?
(3) Has the Defendant breached the [Contract]?
(4) Has the Claimant breached the [Contract]?
(5) What is the effect of any breaches, including what remedies are the parties entitled to?
(6) Has the [Contract] been terminated, whereupon the notice registered against the title to the land, the subject matter of the [Contract], should be removed, or should the [Contract] be specifically performed?
(7) For the avoidance of doubt, all issues as to the amount of abatement of purchase price, compensation and damages shall be the subject of a later trial.”
The preliminary issues were tried before me between 12 and 15 December 2022. This is my judgment in respect of them.
Mullberry was represented by Mr Robert Sterling Counsel, and the Council by Mr Wilson Horne of Counsel. I am grateful to them both for their helpful written and oral submissions.
Parties
Mullberry is a housebuilder and developer that has carried out a number of developments in and around Barrow-in-Furness, Cumbria. Its principal witness was Mr Derek Hugh Barnes (“ Mr Barnes”) who, although not a de jure director of Mullberry, describes himself as its “owner”.
The Council is the local authority for Barrow-in-Furness. In that capacity, it owns land including, at all relevant times, the land registered at HM Land Registry with title absolute under title number CU110510, of which the Property formed part. In addition to its other functions, the Council is the local planning authority for the area including the Property, in which capacity it exercises its statutory rights, powers, discretions and responsibilities as such.
Witnesses
Mullberry called as witnesses of fact Mr Barnes and Mr Allan Lloyd-Haydock (“ Mr Lloyd-Haydock”). Mr Lloyd-Haydock is an architectural technician, employed by Mullberry until April 2021 but now engaged by Mullberry on a self-employed basis. He describes his job as being to complete and submit paperwork for planning permission applications made by Mullberry, but he accepted in evidence that he did not have expertise as such in planning policy and procedures.
Further, under compulsion of a witness summons and having served a witness summary in respect of his evidence, Mullberry also called as a witness Mr Stephen John Solsby (“ Mr Solsby”), a civil engineer, who was employed by the Council as Assistant Director of Regeneration and Built Environment at all material times prior to 22 September 2019. Whilst this role involved oversight over a number of departments, Mr Solsby was clear in his evidence that he did not have any role as a planning officer with responsibility for decisions taken by the Council as a local planning authority.
The Council called the following witnesses of fact, namely:
i) Mr David Joyce (“ Mr Joyce”), who has at all relevant times been the Council's Commercial Estate Manager tasked with the identification and disposal of surplus land and property assets on behalf of the Council; and
ii) Mr Jason Hipkiss (“ Mr Hipkiss”), who has, at all relevant times been the Council's Head of Development Management, in which capacity he oversaw the response of the Council, as local planning authority, to the relevant applications for planning permission submitted by Mullberry in respect of the Property.
In addition, the parties called expert evidence as to planning practice, namely:
i) Mr Rawdon Edward William Gascoigne (“ Mr Gascoigne”), called on behalf of Mullberry; and
ii) Mr Alastair Skelton (“ Mr Skelton”), called on behalf of the Council.
Mr Gascoigne produced a report dated 9 September 2022, and Mr Skelton produced a report also dated 9 September 2022. They subsequently produced a joint report dated 4 November 2022.
Assessment of the witnesses
This is not a case in which, in my judgment, any witness deliberately gave false evidence.
However, I bear in mind the much-repeated observations of Leggatt J (as he then was) in Gestmin SGPS S.A. v Credit Suisse Limited [2013] EWHC 3560 (Comm) at [15]–[22] with regard to the unreliability of memory, and his caution to place limited weight on witnesses' recollections of what was said in meetings and conversations, and to base factual findings in respect of such matters on inferences drawn from the documentary evidence and known or provable facts.
These observations have a resonance in the present case where we are concerned with events that took place some years ago, and where there is particular scope for witnesses to subconsciously recall events in a self-serving way. Nevertheless, I recognise that any findings that I am required to make must be made by reference to all the evidence, that is both documentary evidence and witness evidence, placing such weight as the circumstances require on each.
Mr Barnes, who I understand to be now well in his 80s, came across as an experienced and seasoned builder and developer, but as someone who had little time for the niceties of planning policy or procedure. Nevertheless, he came across as a frank and honest witness doing his best to assist the Court, as did Mr Lloyd-Haydock.
The only real conflict of evidence in the case concerns Mr Barnes' evidence in paragraph 3 of his witness statement where, having referred to Mr Solsby, incorrectly, as the Council's Chief Planning Officer, he went on to say: “I indicated to him on behalf of the Claimant Company that we would only be interested in the site if we could have the difference in housing density between the permitted density of the nearby Oakmere site of 50/60 houses and our...
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