Ellison v Cleghorn

This case concerns an ill-starred property development venture between two friends, which has gone badly wrong for one of them. In outline, the claimant Darrin Ellison and the defendant Timothy Cleghorn bought land together in March 2005 with a view to dividing into two, and each of them building a house on his separate part of it, accessible by a shared driveway. After obtaining vacant possession at the end of 2006, Mr Cleghorn’s house was sufficiently complete for him to move in for Christmas 2008. The building of Mr Ellison’s house never progressed beyond the foundations and walls. Due to the negligence of his building surveyors and the incompetence of his builder, his partly built house had to be demolished, so that he has thus far obtained nothing from the project.

That misfortune of Mr Ellison is not the ostensible cause of the present dispute. Rather, the casus belli consists of a substantial double garage, built by Mr Cleghorn on the edge of his part of the property adjacent to Mr Ellison’s now vacant part. Although Mr Cleghorn has, in response to Mr Ellison’s complaints, reduced the garage both in height and depth, Mr Ellison says that it remains nonetheless a serious impediment to his ability to build a satisfactory house on his part of the property, such that it cannot even now be developed as beneficially as has been achieved by Mr Cleghorn on his part, contrary to the basis of mutual equality upon which the project was undertaken.

The property was purchased by Mr Ellison and Mr Cleghorn as tenants in common in equal shares, and remains registered at HM Land Registry on those terms to this day. Mr Ellison says that no agreement was ever reached as to the delineation of a boundary between their respective parts of the property. By these proceedings he seeks an order that the property be sold, and that the net proceeds of its sale be divided equally between them. Alternatively, he pleads that, as a reasonable man, and if Mr Cleghorn is opposed to a sale, he would be prepared to accept, in satisfaction of his interest in the property, repayment of the £122,500 which he contributed to its purchase, together with interest thereafter amounting to £58,800 to 28 February 2011, and continuing at a daily rate of £26.85.

For his part Mr Cleghorn counterclaims for a declaration that he is already the beneficial owner of his part of the property, pursuant to a constructive trust or an equity arising by way of proprietary estoppel, and seeks an order for the transfer of his part of the property into his sole name. Alternatively, if the property is to be sold, he claims that the division of the proceeds should reflect his contribution to its present value, in the form of the substantial five bedroomed house and double garage erected on it at his expense.

The unfortunate history of the parties’ development of the property is moderately well documented but there are fundamental factual issues about important aspects of the dispute which are by no means capable of being determined by reference to the documents. This is mainly because, being good friends, the parties did not reduce to writing the terms of their joint venture, and because Mr Ellison’s case about the occasions when he claims to have expressed his disagreement and dissatisfaction with the siting and size of Mr Cleghorn’s garage are said to have been entirely oral, before being expressed for the first time in solicitors’ correspondence, in and after July 2009. Prior to that Mr Ellison says that he protested Mr Cleghorn’s plans for the garage, and their implementation, at all relevant stages from first seeing them in 2005. Mr Cleghorn’s case is that despite being shown the plans for the garage, the marking out of its proposed location on the site and witnessing its construction, Mr Ellison made no complaint about its location prior to 2009, and complained only about its height during the course of its construction, a matter which Mr Cleghorn says that he readily conceded and thereafter remedied at his own expense.

Those important factual issues were addressed at length by Mr Ellison and Mr Cleghorn in their own evidence and, but peripherally, by a number of other witnesses. It has therefore been necessary for me to form a view about the relative credibility of the witnesses, which I now summarise.

Mr Ellison gave written evidence in quite extraordinary detail about matters which occurred up to seven years ago, including lengthy verbatim passages said to have occurred in oral exchanges between him and others. In his oral evidence he was a man of much fewer words. Despite being obviously traumatised by what must on any view have been a deeply unsatisfactory venture, his evidence under cross-examination was calm, quiet and, in its essentials, consistent with his witness statement.

Although I do not believe that Mr Ellison sought at any stage to mislead the court, I have come to the view that in the critical aspects of this factual dispute, Mr Cleghorn’s account is to be preferred. I shall give my reasons for that overall conclusion as I describe the facts in detail but by way of summary I found that Mr Ellison’s evidence about the key aspects of the dispute was inconsistent both with the testimony of other more credible witnesses, with the general thrust of the documents, and with the probabilities of the matter, viewed in the round. I have come to the depressing conclusion that Mr Ellison has become convinced of the truth of an essentially reconstructed history of the matter, built up over a considerable time as the result of his most unfortunate experience in relation to the property.

Mr Ellison called his architect, Mr Gavin Knox. Both in his witness statement and in cross-examination he showed that he had formed a very clear opinion of the rights and wrongs of the matter and, in particular, of the gulf between how a joint venture between the parties should have been managed, and how it actually was.

At material points, in particular as to the date when Mr Ellison first expressed to him dissatisfaction with the location of Mr Cleghorn’s proposed garage, his evidence also appeared to be corroborative of that of his client. He gave his evidence with an apparently confident assurance as to the accuracy of his recollection, largely unaided by contemporaneous documents. In particular he gave a vivid description of having received a plan of a proposed house on his client’s site prepared by Mr Cleghorn’s architect which, quite apart from not having survived, even Mr Rodger, counsel for Mr Ellison, was constrained to submit was a mis-recollection by Mr Knox.

Perhaps more importantly, Mr Knox was unable to give evidence of any exchange between Mr Ellison and Mr Cleghorn about the deficiencies of the garage. Furthermore, he prepared his own drawings of a house for Mr Ellison (used for the obtaining of detailed planning permission in 2005) upon the basis of a plan which treated the siting of Mr Cleghorn’s proposed garage as a given. I was not in the end persuaded by Mr Knox’s evidence that he nonetheless regarded the siting of Mr Cleghorn’s garage as a matter still to be negotiated in the future. All in all therefore, I did not find Mr Knox’s evidence to be a reliable support for Mr Ellison’s version of the facts.

The only other witness to give oral evidence for Mr Ellison was Mr Ged Daly, but this only related to a short conversation which Mr Daly had with one of Mr Cleghorn’s witnesses, a Mr Hunter. I found Mr Daly’s account of that event more persuasive than that of Mr Hunter, but the outcome of that difference of recollection went nowhere near the heart of the factual issues.

Mr Ellison relied upon the written evidence of his partner Patricia Murray who was, unfortunately, unable to attend for cross-examination due to illness. He also relied upon a witness statement from his mother Mrs Margaret Ellison which Mr Menon, counsel for Mr Cleghorn, chose not to challenge, on the ground that it was hearsay. Again, Mrs Ellison’s evidence did not deal with any occasion upon which she witnessed her son complaining to Mr Cleghorn, about the location of the garage. Nonetheless she did describe her son complaining about it to her, both in 2005 and 2007.

Mr Cleghorn’s written evidence condescended to much less detail than that of Mr Ellison. On the main issue as to the nature and timing of Mr Ellison’s complaints about the garage, he was, in essence, seeking to prove a negative, namely that there had been no complaints about its location before 2009 and only about its height while under construction.

In cross-examination Mr Cleghorn gave his evidence with care and a level of self-control which did not entirely conceal his dismay at being accused of highhanded, abusive and intimidatory conduct towards his former friend. As I have said, I found his evidence of the important matters in issue both to be more consistent with the general thrust of the documents, and with the overall probabilities.

Mr Cleghorn relied also on the evidence of the parties’ common building surveyor, Mr Craig. It was necessary for me to approach his evidence with some caution because he had been the subject of negligence proceedings by Mr Ellison in connection with his conduct as building surveyor in relation to Mr Ellison’s house, concluded by a substantial settlement in Mr Ellison’s favour, funded by Mr Craig’s insurers. Nonetheless I found Mr Craig’s evidence to be both careful and reliable. In particular, in relation to critical matters of difference in recollection between him and Mr Ellison, it was supported by contemporaneous notes made by Mr Craig in 2007. On the important incident about which their recollection differed, I found Mr Craig’s account to be the more credible.

Mr Cleghorn sought to corroborate his account by reference to evidence from a Mr Neil Hunter who provided informal advice as to the project from his experience in the building trade, and from Mr Stuart Wilson, the builder who both parties used for the construction of their respective houses. Without suggesting that either of them sought to mislead, I did not find their evidence to be inherently reliable or persuasive. Mr Hunter’s evidence was undermined by the more credible evidence of Mr Daly on the one matter about which they disagreed. Mr Wilson was at least as traumatised by his involvement in the building of both houses as Mr Ellison had been, and he displayed an unfortunate inability to recall matters chronologically with any accuracy.

Finally, Mr Cleghorn relied upon the written evidence of a Mr David Carr, who could not be called due to absence abroad on holiday. It was not therefore possible for me to attribute any significant weight to his evidence, which did not in any event go to the heart of the matters in dispute.

Both parties deployed valuation evidence, from a Mr Graham Cadwallader MRICS for Mr Ellison and from a Mr Ian Jefferson MRICS for Mr Cleghorn. Unfortunately their reports did not address entirely the same subject matter. To the extent that they did, their opinions were remarkably congruent. In the event, neither party sought the attendance of his opponent’s expert for the purpose of cross-examination as to the few matters upon which there was not virtual agreement. I have accordingly been able to accept the valuation evidence substantially without challenge.

The property in question consists of a trapezoidal but approximately rectangular strip of land fronting Holywell Lane, Sunniside, near Newcastle-upon-Tyne. When Mr Ellison found it for sale in 2004 it had a modest bungalow at the slightly narrower north north-western end fronting Holywell Lane, with a substantial area of empty unkempt land behind it, surrounded on all of its other three sides by neighbouring residential properties. Mr Ellison had by then known, and become firm friends with, Mr Cleghorn for nearly ten years. He showed him the property and they agreed that it would in principle be suitable for a joint purchase, so that they could each build houses upon it.

It was common ground from the outset that they should contribute equally to the cost of buying the property, and that Mr Ellison should build his house at the rear of it, and Mr Cleghorn at the front. There is however a subtle but important difference of recollection between them as to how it was agreed that the property should be divided. Mr Ellison said that they were each to build a “nice house” at their respective ends of the property, and then divide the remaining land between the houses in half, with a view to achieving equality of area in relation only to that remaining part. Mr Cleghorn said that there was to be an equal division of the whole of the property by area, the precise delineation of the boundary being a matter for calculation rather than subsequent agreement.

In my judgment Mr Cleghorn’s evidence better reflects their common intention at the time of their agreement to buy the property. As will appear, at that time neither of them had any reason to suppose that the two different formulations would produce any different result. Their relatively unsophisticated bargain was informed by an assumption that they were paying equally for a piece of land, and that an equal division of the land (leaving aside only the shared driveway) was the natural reflection of their equality of contribution. It was only after their purchase of the property that it became apparent that planning constraints arising from the proximity of neighbouring dwelling houses at the far end of the site (away from Holywell Lane) meant that Mr Ellison’s house might well have to be built nearer to the notional dividing line between the two plots than would Mr Cleghorn’s house. I consider it also to be clear from the much later complaint by Mr Ellison, in 2009, that Mr Cleghorn had by then obtained de facto slightly more than half of the property by area, that overall equality of area was the essence of their original bargain.

At Mr Cleghorn’s suggestion, both engaged the services of an architectural consultant, Mr Walter Ross, to provide indicative plans of a two house development of the property, for the purpose of ascertaining whether in principle this would be acceptable to the local planning authority, the Gateshead Borough Council. In December 2004 Mr Ross produced outline plans and elevations depicting two houses on the property, each broadly the same distance from the end boundaries. By early March 2005 they had ascertained that a development along those lines would, in principle, be acceptable to the planning authority.

With this encouragement, the parties proceeded to buy the property, for £222,500, each contributing half of the purchase price, and without mortgage finance. Contracts were exchanged on 1^st March 2005, and completion occurred on 18 March. The property consisted of two registered titles, both of which were transferred to Mr Ellison and Mr Cleghorn as tenants in common in equal shares. It is not suggested that the boundary between the two Land Registry titles was intended to become the boundary between their respective halves of the property. For convenience I shall adopt the parties’ identification of Mr Cleghorn’s part (at the front) as Plot 1 and Mr Ellison’s part (at the rear) as Plot 2. No boundary between the two plots was at that stage expressly agreed, still less marked out, and it was common ground between them that, since there needed to be a shared driveway along the eastern side of the property to enable Mr Ellison to have access to it from Holywell Lane, the boundary would not be a simple lateral division of the site into two halves, but rather a division which accommodated the requirement that the common driveway would encroach substantially into Plot 1.

The property was not in fact acquired with vacant possession, the existing bungalow being at that time occupied by a person other than the vendor. Nonetheless, shortly after completion the parties embarked upon the obtaining of detailed planning permission. For that purpose Mr Cleghorn continued to make use of the services of Mr Ross, who prepared detailed plans and elevations of a house and detached double garage to be built on Plot 1, in late March and early April.

By this time Mr Ellison had decided that he wished to dispense with the services of Mr Ross in relation to Plot 2 and instruct his own architect. There is a sharp dispute of fact as to when, and precisely why, this occurred. The parties were at one in their evidence that they made only a single joint visit to Mr Ross, at his offices in Leet Street, Coldstream. Mr Cleghorn said that this occurred in December 2004, in connection with Mr Ross’s preparation of outline plans and elevations for both plots, copies of which were in evidence. Mr Ellison said that it occurred after exchange of contracts, and therefore in March 2005, and led to the production of more detailed plans and elevations, separately for each plot. He said that his decision to dispense with the services of Mr Ross arose because of his dissatisfaction with both sets of plans. As to Plot 1 he said that he was dissatisfied by Mr Ross’s placement of Mr Cleghorn’s double garage right on, and in the middle of, a boundary drawn between the two plots. As to the plans for his own house, he said that he regarded them as wholly unsatisfactory. More generally, he said that he regarded Mr Ross, although jointly instructed, as apparently determined to favour Mr Cleghorn’s interests over his own.

There are two reasons why, taken together, I consider that Mr Cleghorn’s evidence on this issue is to be preferred. The first is that no plan or drawing of any kind of a house on Plot 2 prepared by Mr Ross has survived other than the outline plan and elevation which he prepared in, and dated, December 2004. This is despite the fact that Mr Cleghorn’s solicitors obtained Mr Ross’s files for the purposes of these proceedings and disclosed the relevant parts of them, which included a number of other plans which he prepared in March and April 2005, relating almost exclusively to Plot 1. I approach that reason with some caution because it appears from the Allocation Questionnaire in these proceedings that Mr Cleghorn intended originally to call Mr Ross as a witness, but has since decided otherwise.

The second reason is that, if Mr Ross had still been jointly instructed when he prepared the detailed plans for Plot 1, including those relating to the garage, it seems to me inconceivable that any professional person in his position would have produced plans for a garage of the type he did produce. It was a large two-storey building, more like a small house than a garage, lying hard against his chosen boundary line between the two plots, in a position which, as all those with building expertise and experience in these proceedings, and also both Mr Ellison and Mr Cleghorn agree was seriously depreciatory of the development value of Plot 2. Those persons include Mr Cadwallader, Mr Craig and Mr Knox. The principal reason why it had that deleterious effect was its height, rather than its location, but Mr Ross’s elevations showed it in all its horrible glory. It was, quite simply, as designed by Mr Ross, an eyesore to any occupant of a house built on Plot 2. In sharp contrast, the outline plans and elevations prepared by Mr Ross in December 2004, when unquestionably acting on the instructions of both parties, contained no features of either house or (integral) garage which could sensibly be regarded as impacting adversely upon the development value of the other plot. I consider that the natural inference is that, by the time he came to prepare detailed plans and elevations for Plot 1, Mr Ross was instructed only by Mr Cleghorn and regarded himself as duty bound to maximise the amenity (and therefore developmental value) to be extracted from Plot 1 regardless of its effects upon Plot 2.

Even though it is probable that Mr Ross was by then instructed solely by Mr Cleghorn, it is clear that Mr Ellison was sent, or otherwise obtained, a copy of a plan prepared by Mr Ross in April 2005, which depicted the whole of the property (marked as Plots 1 and 2) the footprint of the house and garage proposed to be erected on Plot 1, the layout of the common driveway and a notional boundary drawn between Plots 1 and 2, which ran along the rear wall of the proposed garage. It became the template upon which Mr Knox on Mr Ellison’s instructions prepared his own detailed plans for the house (with integral garage) to be built on Plot 2, in May 2005.

There is again a sharp dispute of fact as to Mr Ellison’s reaction. Mr Cleghorn said that he showed Mr Ellison the Ross plans, and that Mr Ellison made no objection to them of any kind. Mr Ellison said that he immediately protested to Mr Cleghorn about the location of the garage, complaining that Mr Ross had not followed an earlier agreement in principle that both parties’ garages should be located, side by side, on the western boundary of the property between the two houses. Mr Ellison says that he was rebuffed by Mr Cleghorn, and told that the positioning of the garage had been decided by Mr Cleghorn’s partner.

Mr Cleghorn said that, quite apart from there having been no complaint from Mr Ellison of this kind, he was not living with the lady in question at the time, and that she played no part at all in the decision making. I will return to the question whose evidence about this issue is to be preferred when I have described the next relevant events, because they afford the main basis for my conclusion.

Mr Knox acknowledged that he received from Mr Ellison a copy of the Ross plan which I have just described, and that his own detailed plans for the house to be built on Plot 2 were based upon a perceived need to design around the Ross plan, and in particular the garage. He produced a plan for a five bedroom Dutch bungalow (i.e. with an upper floor served by dormer windows) having only a hall, toilet and bathroom facing the rear wall of the garage. The plan acknowledges on its face that Plot 1 (which shows the outline of a house and garage) was the subject of a separate planning application. It was prepared in May 2005, and used as the basis for Mr Ellison’s application for detailed planning permission which was submitted on 3 June 2005, some three weeks after Mr Cleghorn submitted his. It had by this time become apparent that the development of Plot 2 was more constrained by privacy lines running from neighbouring houses than the development on Plot 1, and Mr Knox’s design therefore put Mr Ellison’s house nearer to the northern end of Plot 2, leaving little room for parking and turning of vehicles between the house and the rear of the garage on Plot 1, in front of an integral garage which he incorporated into the design of the house on Plot 2. His design was more complicated than Mr Ross’s design for Plot 1. Mr Ellison said that this was partly responsible for his decision to go for a three bedroom rather than a five bedroomed house on Plot 2 because the cost per bedroom of that design exceeded his resources. Be that as it may, Mr Ellison acknowledged in cross-examination that he would have been happy with that design if it had been built, albeit unhappy with the parking and turning area in front of it.

No objection was made by Mr Ellison or Mr Knox on his behalf to Mr Cleghorn’s planning application. Mr Knox said that neither he nor Mr Ellison received any elevations for the house and garage to be built on Plot 1, and that Mr Ellison’s objection at that stage was purely to the location, rather than height, of the garage.

Mr Knox was taken to task by Mr Menon in cross-examination for having made no objection to Mr Cleghorn’s planning application, if, as he said, both he and Mr Ellison were unhappy with the positioning of the garage. Mr Knox said that his understanding was that the final positioning of the garage was still a matter for discussion between the parties, that it was necessary to make some application for planning permission, and that alterations could thereafter be made when negotiations about the garage led to its being sited elsewhere. Furthermore, he said that Mr Ellison received no notification of the lodging of Mr Cleghorn’s planning application, both because Mr Cleghorn had wrongly stated that Plot 1 was in his sole ownership, and that the plans for Plot 1 were not part of a larger development.

I did not find Mr Knox’s explanations at all persuasive. It is clear that both he and Mr Ellison knew that Mr Cleghorn was applying for detailed planning permission based upon the Ross plans, and that Mr Knox went to considerable trouble in the design of the house on Plot 2 to accommodate, and minimise the effect of, the garage planned for Plot 1. Detailed planning permission was duly obtained by Mr Cleghorn and Mr Ellison, based upon the plans which I have described, in August and November 2005 respectively, and nothing at all was done to re-negotiate the positioning of the garage, or to re-design the house to be built on Plot 2 and apply for varied planning permission, during the whole year which then elapsed before vacant possession of the property was obtained in December 2006. Thereafter, Mr Wilson was retained by both parties as their builder and Mr Craig as their building surveyor without any further discussion about the positioning of the garage, before building works started in earnest in March 2007.

In my judgment no objection was made by Mr Ellison to Mr Cleghorn about either the siting or the height of the proposed garage in 2005. The reason is, I think, quite simple. Neither Mr Ellison nor Mr Knox was shown Mr Ross’s elevations for the garage, or anything to indicate that it was to be a two storey structure, rather than a simple garage not substantially higher than a natural boundary fence. Having chosen to go their separate ways so far as concerned the detailed planning and layout of their respective plots, I consider that Mr Ellison did not think it appropriate to complain about his friend’s chosen position of his garage on being content with the house designed for him by Mr Knox, which included no clear glass windows (other than from the hall) giving a view of it from any bedroom or reception room within that design. It was no part of the parties’ original bargain that the two houses which they proposed to erect on the property should themselves be of equal value, or that the properties should in the abstract (ie divorced from any particular house design on either of them) have, and have preserved, an equivalent development value.

I reach that conclusion notwithstanding the evidence to the contrary of Mr Knox, and the unchallenged written evidence of Mrs Ellison, that her son told her that he was unhappy about the positioning of the garage in 2005. The critical question is whether he expressed any such unhappiness to Mr Cleghorn. The undoubted facts that no objection was made to Mr Cleghorn’s planning application, and no attempt made to re-negotiate the siting of the garage before builders were instructed more than a year later, leaves no room for a contrary conclusion on the balance of probabilities.

The existing bungalow was demolished and the site cleared between December 2006 and March 2007. Mr Ellison and Mr Cleghorn each separately instructed Mr Wilson as builder and Mr Craig as building surveyor. Mr Cleghorn’s contract was for the construction of a shell, which he intended to complete himself, due to reservations about the quality of Mr Wilson’s work elsewhere. Mr Ellison’s instruction was for the complete construction of his house. Both parties contracted informally with Mr Wilson, and with Mr Craig. In the ordinary way, matters proceeded first with a marking out of the positions for foundations and walls of the three buildings (the two houses and the large two storey garage) followed by the digging of trenches, the laying of foundations and the construction of brickwork. There is, again, a sharp dispute as to whether, at this stage, Mr Ellison complained about the positioning of the garage. He said that he did, both to Mr Cleghorn, for having ignored his request in 2005 to site the garage on the western side of the property, and separately to Mr Craig, at a meeting on site a few days later. Both Mr Cleghorn and Mr Craig said that no such complaint had been made.

Although Mr Cleghorn faced the usual difficulties of a witness whose evidence is simply that something did not happen, I was more impressed by Mr Craig’s reasons for his similar denial. He said that he only had two meetings on site with Mr Ellison in 2007, one in March at the beginning of the works and one in October. He said that at the time of the March meeting he had yet to receive the detailed plans without which it would have been impossible for him to have dealt with the matter as described in Mr Ellison’s witness statement (since they had been posted to him with an inadequate stamp and he had had to obtain them himself from the Post Office). He supported his evidence by reference to contemporaneous manuscript notes, showing that he first visited the site with the relevant plans on 17 March (when Mr Ellison was not there) and that he could not have dealt with the matter as described by Mr Ellison thereafter on the telephone because he spent the following ten days (until almost the end of March) celebrating his 25^th wedding anniversary in the Maldives where he said (and I have no doubt) that he was not taking telephone calls.

Bearing in mind that by this time the location of the garage was represented either by markings or foundation trenches I consider that Mr Craig’s comprehensive and credible refutation of an important plank in Mr Ellison’s evidence is powerfully supportive of Mr Cleghorn’s case. I find that Mr Ellison made no complaint to Mr Cleghorn of to Mr Craig about the location of the garage as its laying out and construction proceeded.

It is however common ground that, as the garage rose in height during its construction, Mr Ellison complained about its height, on becoming aware for the first time that it was to be a two storey building. He said that he was rudely rebuffed by Mr Cleghorn, but the latter said in his evidence that, in the light of the numerous other difficulties then arising with Mr Wilson’s building work, he acknowledged the problem but asked Mr Ellison to be patient, and that he would deal with the height problem later on. Again, I prefer Mr Cleghorn’s evidence about this.

Problems there certainly were. Mr Wilson had constructed Mr Cleghorn’s house a metre to the east of the building line on the permitted plans. Part of Mr Ellison’s house was too close to a neighbour’s property, so that a gable end had to be pulled down. Mr Wilson’s work was also deficient in quality, and he had something of a nervous breakdown at the time. The deficiencies in his work on Plot 2 were much worse than on Plot 1. Eventually Both Mr Ellison and Mr Cleghorn dispensed with Mr Wilson’s services. So poor was the building work on Plot 2 that the partly built house there had eventually to be completely demolished. Mr Ellison sued Mr Craig for negligent supervision of Mr Wilson, and eventually made a substantial (but less than fully satisfactory) settlement with his insurers. I infer that Mr Wilson was not worth powder and shot. The melancholy result for Mr Ellison was that, in the end, he got nothing at all of that which he had planned, commissioned and paid for.

Mr Cleghorn had personally supervised the building works much more closely than had Mr Ellison, with the result that he did eventually manage to complete his house, and the garage, on Plot 1, sufficiently at least to be able to move in just in time for Christmas 2008. He said that he was still on friendly terms with Mr Ellison at that stage, and that Mr Ellison made him a short term cash loan to enable him to move in, which he repaid in two instalments early in 2009. The making of such a loan would have been entirely inconsistent with the abusive state of the relationship as described in evidence by Mr Ellison, and indeed he denied the loan entirely. Again I prefer Mr Cleghorn’s evidence on this, even though, as a cash loan, it was entirely undocumented.

It was at this point, in my judgment, that Mr Ellison’s entirely understandable disappointment about his misfortunes, in particular when compared with Mr Cleghorn’s success, led him to focus for the first time on what became an unshakable conviction that Mr Cleghorn had treated him unfairly. A professional survey obtained by Mr Ellison in 2009 revealed that the boundary set by Mr Ross’s plans had left Plot 1 twenty square metres larger than Plot 2, and the distance between Mr Cleghorn’s house and the eastern boundary narrower than permitted, with a possible knock-on narrowing of the shared driveway. Mr Ellison complained about these matters and, through solicitors by this time, complained about the location as well as the height of the garage.

Mr Cleghorn’s response was to try to accommodate Mr Ellison’s concerns. He sought planning permission for a lower garage, and a reduction of its depth so as to enable the common boundary to be moved north (sufficient to equalise the two site areas). He also sought retrospective planning permission to leave his house where it had been built, but on the basis that he would give up a private path between it and the driveway, so that the driveway itself would not be narrowed by the location of his house too far east. These planning permissions were obtained, but Mr Cleghorn hesitated in carrying out the authorised works, in the hope of reaching agreement with Mr Ellison first. No agreement was reached, with the result that those works were only carried out after these proceedings had been issued, in 2011. Their result is that the common boundary has now been moved north far enough to restore area equality between Plots 1 and 2, and the garage consequentially reduced in depth by the demolition and rebuilding of its rear wall. The garage has also been reduced in height to a more conventional single story structure, but its location remains otherwise unchanged.

There was no dispute about the law, either in relation to the court’s statutory jurisdiction to order a sale of co-owned land, or as to the court’s wide power to give appropriate, just and proportionate relief so as to satisfy a proprietary estoppel. At various stages during the hearing I suggested that the parties might give thought to the court’s statutory jurisdiction to partition co-owned land. S. 14 of the Trusts of Land and Appointment of Trustees Act 1996 confers power on the court to direct a partition, even without the beneficiaries’ consent, and with or without payment of equality money: see Hopper v Hopper [2008] EWHC 228 (Ch), at paragraph 123. Section 15 requires the court to have regard (among other things) to the intentions of the persons who created the trust, and to the purposes for which the property subject to the trust is held. More generally the court seeks to do justice between the parties: see Murphy v Gooch [2007] EWCA Civ 603, per Lightman J at paragraph 14.

By the time of closing submissions Mr Menon had come to the view that the relief claimed by Mr Cleghorn could as well be provided by partition as by relief for proprietary estoppel, and did not suggest that those alternative formulations would give rise to any different result. Mr Rodger agreed, and so do I. I would go further. Where the parties are already co-owners of land which they intended at the outset should eventually be divided between them, then partition is the direct and natural means of achieving that objective, with recourse to the court if the beneficiaries will not all consent.

On the statements of case the issue as to relief lay between sale of the whole property, purchase of Mr Ellison’s share by Mr Cleghorn, or a transfer of Plot 1 to Mr Cleghorn as sole owner, it being implicit that Mr Ellison would receive sole ownership of Plot 2. By the end of the evidence Mr Rodger very sensibly confined his closing submissions about relief to a concession that there would have to be a partition into Plots 1 and 2 along the new boundary created by Mr Cleghorn in 2011, but with a payment of equality money to Mr Ellison to reflect the adverse effect upon the value of Plot 2 arising from the conduct of Mr Cleghorn about which Mr Ellison complained.

I consider that Mr Rodger’s concession was not merely sensible, but inevitable. The property was acquired not for long term co-ownership, nor for development and resale, but for division into two homes, one for each of them. Mr Cleghorn has substantially achieved that objective on the ground, save only as to obtaining sole ownership. Mr Ellison’s failure to make any progress towards that objective, apart from obtaining planning permission, can in no sense be blamed upon Mr Cleghorn. His failure arose from the grave shortcomings of his builder, the negligence of his surveyor, and his decision not to supervise the process personally as closely as had Mr Cleghorn. Mr Ellison said in evidence that he was happy with the 3 bedroom design which Mr Knox provided for Plot 2 in 2006, and its completion was not inhibited, still less rendered impossible, by the siting or size of the garage on Plot 1, or by the then position of the common boundary.

It is also clearly appropriate that the boundary between the partitioned plots should remain where it now is, namely along a straight line extending each way from the line of the re-built rear of the garage on Plot 1. Mr Cleghorn moved it to that position in order to accommodate Mr Ellison’s claim that the previous boundary left him about 20 square metres less land than Mr Cleghorn, and there is no evidence to show that, leaving aside the driveway, Plot 2 is now any smaller than Plot 1.

I consider that the driveway should become an additional part of Plot 2, subject to rights of way and to maintain services to Plot 1, as well as to a right of access for the purposes of maintaining the adjacent house structure, boundary gates and walls. There will need to be shared obligations to maintain the driveway. None of these requirements are at all contentious.

The real bone of contention is equality money. The present values of the two plots are of course very different, because Plot 1 has a new 5 bedroom fully serviced house, double garage and ample parking area on it, whereas plot 2 is an empty unserviced site, with a recently obtained planning permission for a smaller 3 bedroom bungalow . But Mr Cleghorn has spent some £234,500 to achieve that result on Plot 1, in addition to his £111,125 share of the purchase price. His total outlay of £345,625 is now almost precisely reflected in the presently estimated value of Plot 1 of £345,000 (taking an average between the £10,000 difference between the two valuers’ opinions). So, ignoring inflation and the downward movement in the local property market, Mr Cleghorn is nominally neither a winner nor a loser. By contrast both experts agree that the present value of Plot 2 is £80,000, although Mr Cadwallader advises £75,000 subject to its current (rather than 2005) planning permission. That is £31,125 less than Mr Ellison’s share of the acquisition price. I leave out of account his wasted expenditure on the now demolished building on Plot 2, for which he has partially been compensated by Mr Craig. It is irrelevant because it has contributed nothing to the value of Plot 2.

Mr Cadwallader’s unchallenged opinion is however that Plot 1 could have been developed to its present condition with an outlay of only £190,000 so that, in terms of present notional site value, Plot 1 is worth about £155,000, some £43,875 more than Mr Cleghorn’s share of the acquisition price, and almost double the site value of Plot 2. I see no reason to doubt Mr Cadwallader’s estimated development cost. Mr Cleghorn’s higher actual cost may well be attributable to his own troubles with Mr Wilson, together with the extra costs of reducing the height and depth of the garage in response to Mr Ellison’s complaints in 2009.

Mr Cadwallader sought to attribute the whole of Mr Ellison’s shortfall of £31,125 to what he described as “the actions of the defendant”. He itemised the adverse effects upon Plot 2 of the manner in which Mr Cleghorn developed Plot 1 under three headings. The first was the reduction of the width of the driveway (caused by Mr Cleghorn’s house being built 1 metre too far to the east). He said that this could make access by large lorries difficult, thereby increasing the development cost of Plot 2.

The second was the obstruction to the view of a house built on Plot 2 from the driveway caused by the garage on Plot 1, even in its now reduced size. He said that this might cause purchasers to offer less than full market value.

The third was the combined effect of the privacy lines affecting Plot 2 with the position of the garage on Plot 1. He said that this meant that a house built clear of privacy restrictions on Plot 2 would have to be so near the garage that there would be inadequate room to manoeuver cars in front of it.

To this list Mr Rodger added that Mr Cleghorn’s decision to seek detailed planning permission for Plot 1 ahead of, rather than together with, Plot 2 led to his house having a rear elevation which imposed its own privacy lines into Plot 2, further restricting the developable area on Plot 2. This could he said have been avoided if Mr Ross had designed him a shallower house, with its rear wall further north.

All in all Mr Rodger submitted that the just solution would be to require an equality payment by Mr Cleghorn to Mr Ellison in the region of the £31,125 identified by Mr Cadwallader, thereby largely neutralising the large difference in site value between the two plots, and achieving substantial equality. He submitted in particular that it mattered not that the privacy line restrictions adversely affecting Plot 2 may only have become apparent after Mr Ellison chose Plot 2. There was nothing unfair in correcting an inequality brought about by circumstances of which the parties were unaware when they made their bargain, if equality lay at its heart.

I have not been persuaded either by Mr Cadwallader’s opinion or by the elegant structure which Mr Rodger sought to erect with its assistance. As Mr Menon pointed out, Mr Cadwallader started from an incorrect point of departure, namely that the parties agreed at the outset to divide the property into plots of equal value. I have found that their arrangement was to divide the property into plots which were equal in overall area rather than value. They each took the risk that their chosen plot might turn out to be worth less in terms of development value than the other. Their minimum requirement was (as the planning authority had confirmed in principle by the time they exchanged contracts) that each plot should be sufficient to accommodate what Mr Ellison called “a nice house”, not two houses of equal size, shape, cost or value.

That said, I accept Mr Rodger’s narrower submission that the obligations of both parties as co-venturers in the project was not, without the other party’s prior consent, to take steps on their own chosen plot which significantly adversely impacted on the achievement of what I will label the “nice house” objective on the other equally sized plot nor, of course, to insist on a boundary between the two which left the other plot smaller in size. Plainly the avoidance of those consequences was much more likely to be achieved by a pre-agreed joint approach to the planning authority, but it did not require it, and it was Mr Ellison’s choice to proceed separately, with his own architect. Mr Cleghorn’s decision to apply on his own, first, created the risk that his layout and design might infringe those obligations, as they clearly did, in terms of height of the garage, and the positioning of the common boundary.

It follows that there is in my view no starting assumption that the court should by an award of equality money seek to equalize the development value or site value of what are now two equally sized plots. An award should do no more than fairly compensate Mr Ellison for any proven breach by Mr Cleghorn of the obligations which I have described. Furthermore, to the extent that Mr Ellison knowingly acquiesced in a breach, and Mr Cleghorn than spent money on works which would now have to be undone at substantial cost, or now made the subject of compensation after the event, it would be prima facie unjust not to take Mr Ellison’s acquiescence into account.

The second difficulty is Mr Cadwallader’s opinion that Mr Ellison’s shortfall of £31,125 is causally attributable to the specific acts of Mr Cleghorn which he has listed. The extent to which Mr Ellison’s 1995 acquisition cost exceeded the current site value of Plot 2 is attributable at least in part to a number of factors for which Mr Cleghorn cannot possibly be blamed, such as the privacy lines affecting Plot 2 and the fall in the development property market. It is little more than happenstance that Mr Ellison’s shortfall is approximately half the difference between the present site values of the two plots.

I therefore approach the question of equality money by seeking to identify the aggregate adverse effect (if any) in monetary terms of the listed items upon the development value of Plot 2, but only to the extent that it is just to treat them as the consequence of breaches by Mr Cleghorn of the obligations to which I have referred, after making due allowance for acquiescence by Mr Ellison. When these proceedings started, the height of the garage plainly fell into that category, as did the slightly misplaced common boundary, in reducing the area of Plot 2 to below half the area of the whole property. But both these faults were remedied, the first at least in part and the second in full.

Taking first the mispositioning of Mr Cleghorn’s house, this was plainly his responsibility (even if probably not his fault personally). But it caused no narrowing of the driveway, once Mr Cleghorn decided to give up his side path and restore the driveway to its originally planned width. It is in fact just about negotiable by large lorries, the real difficulty being more to do with the tight turn in from Holywell Lane, than with any lack of width. I consider that the effect on the development value of Plot 2 is nil.

There may be something in Mr Cadwallader’s point about the garage as an obstruction to the clear view of a house on Plot 2 from the driveway, although he put his opinion about it rather cautious terms. In its now reduced state the garage does still project a little above the level of a reasonable fence or wall along the common boundary. But my findings of fact lead to the clear conclusion that Mr Ellison did not protest to Mr Cleghorn about the proposed siting of the garage, from mid 2005 when he and Mr Knox learned of it, until April 2007 when Mr Cleghorn started spending money upon its construction. Accordingly Mr Ellison’s acquiescence in the positioning (although not the original height) of the garage makes it unjust in my view now to award him compensation for the very uncertain effect of its positioning upon diminution in value attributable to the obstruction of the view.

Mr Cadwallader’s third point is in my view misconceived, for the following reasons. The first is that the agreement for equally sized plots entitled Mr Cleghorn to insist on the common boundary being sited where it now is, even if he originally sited it too far south, and without prior consent from Mr Ellison. Secondly, any restriction in the manoeuvring area on Plot 2 is the result of the positioning of the common boundary rather than the garage, the rear wall of which happens to form part of it. Thirdly, the primary cause of the restricted manoeuvring area is the response of Mr Knox in 2005 to the problem of the privacy lines, which were in no sense Mr Cleghorn’s responsibility. Fourthly, it has now proved possible to design and obtain planning permission for a house on Plot 2 sufficiently far from the common boundary to leave ample room for the parking and turning of cars. While it may be that the new design is smaller, it is by no means clear that this was necessitated by the different ground plan, and Mr Cadwallader made no mention of this new design in his report, although it had been prepared for his client.

Finally Mr Rodger’s additional point is equally without substance. It is true that a 21 metre privacy line from Mr Cleghorn’s house does extend a little way into Plot 2, but not to an extent which would interfere with any house designed with relevant windows located at a sensible distance from the common boundary. Furthermore Mr Cadwallader makes no mention of it, so the point is unsupported by expert evidence.

The result is that none of the conduct of Mr Cleghorn relied upon as detracting from the development value of Plot 2 ought in justice to give rise to any compensation to Mr Ellison by way of equality money. Three of the four items had no adverse causative effect. The only one which may have done so, namely the effect upon the view of a house on Plot 2 caused by the siting of the garage, was a matter upon which Mr Ellison made no relevant complaint before Mr Cleghorn started spending money upon it. By contrast the real candidates for compensation (when these proceedings began) have since been addressed in full by Mr Cleghorn, in a manner which he offered to do beforehand, and for which he obtained the necessary planning permission as an earnest of his good faith.

There must therefore be a partition in the manner which I have described, but without payment of any kind.