Tighe -v- Carey,  IEHC 395 (2017)
|Party Name:||Tighe, Carey|
|Docket Number:||2007 5264 P|
THE HIGH COURT[2007 5264 P.]
WILLIAM HEVERINTHIRD PARTY
JUDGMENT of Mr. Justice Noonan delivered on the 20th day of June, 2017
By a memorandum of agreement in writing dated the 20th July, 2006, the defendant as vendor agreed to sell to the plaintiff as purchaser the property described in the particulars as follows:
“ALL THAT AND THOSE that piece or plot of ground situate in the town land of Bangor, parish of Kilcommon Erris, Barony of Erris and County of Mayo comprising 0.992 hectares or thereabouts metric measure which said property is outlined with a red verge line on the map thereof annexed hereto and thereon marked with the letter ‘C’…”,
for the price of €290,000.
The sale was closed on the 25th October, 2006, and the consideration paid over. Shortly thereafter it became apparent that the defendant did not own a substantial part of the lands he had purported to sell to the plaintiff.
In fact, a strip of land on the eastern boundary of the site which the defendant had purported to sell was owned by the Office of Public Works (“OPW”), so that the lands ultimately acquired by the plaintiff amounted in area to 0.717 hectares representing a 27.7% reduction in what had been agreed to be sold.
The plaintiff’s claim is for damages for breach of contract.
The plaintiff is a building contractor who was, during the economic boom period during which these events initially transpired, interested in acquiring development lands. The defendant is a publican and restaurateur who was also engaged in property development. The lands in question were part of a larger parcel of lands purchased by the defendant in or around 1990. The defendant acquired the property on foot of a conveyance of the 19th November, 1990, made between Eileen O’Rourke of the one part and the defendant of the other part. Ms. O’Rourke in turn had acquired the property on foot of an earlier conveyance of the 18th September, 1981, made between Sheelagh Mary Geraldine Hewat of the one part and Ms. O’Rourke of the other part. These two conveyances were among the title documents contained in the documents schedule to the contract of sale. Both had maps attached to them.
The evidence in the case establishes that the physical features of the site include a large land drain on the eastern side of the site running broadly from north to south. Some distance to the east of this land drain is a line of bushes or shrubs parallel to it. The lands acquired by the defendant from Ms. O’Rourke are delineated by the maps attached to the 1981 and 1990 conveyances which show as their eastern boundary the line of the land drain to which I have referred. However, the map attached to the contract for sale the subject matter of these proceedings shows the eastern boundary of the site as being broadly in line with the line of bushes further to the east. Both of the maps attached to the 1981 and 1990 conveyances are of a very small scale. In that regard, the evidence of the plaintiff’s consulting engineer, Mr. Beale, which I accept, is that from a perusal of the 1981 and 1990 conveyance maps, it is very difficult to say what those maps include given their small scale.
The planning history of the site is of some relevance to these proceedings and in that regard, I will refer to the portion of the site to the east of the land drain as the OPW lands. In 2003, the defendant made a planning application to Mayo County Council for the development of three detached houses on the larger site he had acquired from Ms. O’Rourke. The application was made on the defendant’s behalf by Messrs. John Irwin and Associates, who are described as auctioneers and design consultants. The site map submitted to the planning authority on behalf of the defendant by Irwin and Associates included the OPW lands. This application was refused. A second planning application was made in 2004 again by Messrs. Irwin and Associates on behalf of the defendant also for three detached dwelling houses with a modified design and this application was granted. The site map again included the OPW lands.
A third planning application was made by the defendant in respect of the lands in 2005 but this time, it was made on his behalf by the third party herein (“Mr. Heverin”) who is an architectural technician. This application was again for three detached dwelling houses, the design having been modified from that in the earlier applications. The site map accompanying the 2005 application prepared by Mr. Heverin also included the OPW lands. It should be noted that at the commencement of the trial, the court was informed that the defendant’s claim against Mr. Heverin had been compromised.
In the course of giving his evidence, the defendant was asked to explain how these discrepancies in the maps arose. The defendant was clear in his evidence that he was at all times aware of where the correct boundary of his property lay and the inclusion of the OPW lands in the planning maps submitted by Messrs. Irwin and Associates was an error on their part. He was unable to explain how Mr. Heverin had apparently made precisely the same error when he submitted the 2005 planning application. It is also of note that in the latter application, Mr. Heverin showed on the site map the land drain as being filled in and when the defendant was asked why Mr. Heverin...
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