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 missives incorporated clauses (from the Aberdeen and Aberdeenshire standard clauses) stating that the seller was not aware of any proposals, applications or re-development plans affecting the Property or any neighbouring property and warranting that the Seller had not received any neighbour notification notice issued in terms of planning legislation

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 notice

The sellers 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.

Timing

The sellers also argued that, as the contract was concluded on 9 June and that the sole purpose of the later letters was to amend the date of entry, the warranty was given as at 9 June. However, the sheriff principal found that the warranty was given at the date of conclusion of the missives and the effect of the later letters was to create a new date for the conclusion of missives (meaning that the warranty was given at 30 July).

The sheriff principal refused the appeal and agreed with the sheriff’s earlier finding that the sellers were in breach of contract.

The full judgement is available from Scottish Courts here.