Harsten Developments Ltd v Eaken & Ors

Where a conveyance identifies land by reference to an Ordnance Survey plan, the legal boundary follows the physical feature represented by the relevant map line. Where that feature is a pre-existing hedge, the hedge-and-ditch presumption does not apply and the boundary is ordinarily the hedge’s middle line. A drainage easement may restrict development above a drain, depending on whether access can be preserved or the drain diverted. Misrepresentation about title or development potential may justify rescission where the purchaser is led to expect property substantially different in quantity or quality.

The proceedings concerned a building plot adjoining 27 Wickwar Road and the boundary with 25 Wickwar Road. In the Bristol County Court claim, John Devlin and Marianne Powell sought a declaration of ownership extending into the plot. Harsten contended that the Bleaken defendants had transferred land they did not own.

In the High Court proceedings, Harsten sought rescission of the auction contract and subsequent transfer, alleging misrepresentations about the eastern boundary, a drainage pipe and easement, and the implementation of planning permission. The central issues were the true boundaries, actionable misrepresentation, affirmation, and the court’s discretion under section 2(2) of the Misrepresentation Act 1967.

1. Boundary. The 1926 conveyance identified the land by reference to the Ordnance Survey map. Applying Fisher v Winch, [1939] 1 KB 666, and Davey v Harrow Corporation, [1958] 1 QB 60, the relevant map line represented the physical boundary feature. The box hedge pre-dated the conveyance, so the hedge-and-ditch presumption did not apply. Consistently with Alan Wibberley Building Ltd v Insley, [1999] 1 WLR 894, the legal boundary was the middle line of the hedge.
2. Contractual boundaries. The western boundary under the auction contract and transfer was the line of the newly erected fence. The eastern boundary extended further east than the hedge’s middle line. The auction particulars therefore represented that the purchaser would acquire the hedge, which was incorrect.
3. Drainage. Long and open use of the buried pipe had created a prescriptive drainage easement. The replies in the Sellers Property Information Form that no relevant drain crossed the land and that no neighbouring owner needed access to maintain drains were misrepresentations. The easement could inhibit building, although its practical effect depended on preserving access or diverting the drain.
4. Affirmation and rescission. Harsten had not affirmed the contract because the Bleakens failed to prove that, when Harsten applied for planning permission, it knew enough of its legal and factual right to rescind. Under section 2(2) of the Misrepresentation Act 1967, it was not equitable to leave the contract subsisting. Harsten was entitled to rescind the agreement and transfer, retransfer the land, and recover the purchase price with interest and damages under section 2(1).