Lancashire County Council v Buchanan

Particulars of sale – Misdescription – Trading standards – Respondent compiling particulars of sale of property – Trading standards officer alleging offences under Property Misdescriptions Act 1991 – District judge dismissing proceedings – Whether judge properly concluding that no reasonable grounds for suspecting offences – Appeal dismissedThe respondent was a solicitor and estate agent. Problems arose in respect of a property that he was offering for sale. The particulars of sale described the property as a substantial end-of-terrace house with a garden. However, the vendor informed a potential purchaser that he did not have possessory title to the garden and the purchaser withdrew from the deal and complained to the appellants’ trading standards department that the property had been misdescribed.The department had received another complaint concerning the particulars of sale compiled by the respondent and the trading standards officer (TSO) asked the respondent for his comments. The respondent replied that the garden was a side garden of which the vendor had full control. He enclosed statements from six past and present residents of the same street, including the former owner who had first fenced the garden, all of which acknowledged that the garden had been enclosed with the property for around 30 years. The vendor had lived in the property for 12 years and had erected a new fence together with retaining walls. The TSO was also informed that the council were disputing the vendor’s registration of title to the garden.The TSO subsequently paid an unannounced visit to the respondent’s office, where his request to see the file relating to the sale of the property was refused on the ground of legal professional privilege. Following further correspondence, the TSO laid two informations against the respondent, alleging offences under para 5(1)(a) and (b) of Schedule 3 to the Property Misdescriptions Act 1991. The TSO accepted that she had no reason to disbelieve the statements relating to the occupation and use of the garden and that the respondent was not obliged to check the vendor’s title.The district judge dismissed the case against the respondent, holding that, even though the vendor did not have registered title, there was evidence of more than 30 years adverse possession. Accordingly, the TSO had no reasonable grounds for suspecting that the respondent had committed an offence under section 1 of the 1991 Act. The appellants appealed. Held: The appeal was dismissed.The district judge had been correct in law to conclude that the respondent was not guilty of the offences charged since, on the evidence, a reasonable person assumed to know the law and in possession of the same information as the TSO could not have had reasonable grounds for suspecting that an offence under section 1 of the 1991 Act had been committed.The particulars of sale had described the property as having a garden and it did have a garden. No representations had been made as to the nature or quality of title and no reasonable person would have inferred any such representations. Furthermore, the reasonable person would have been aware that questions of title were resolved during the conveyancing process and the conveyancing business of estate agents was specifically excluded from section 1 of the 1991 Act.The TSO had accepted that there was no reason to disbelieve the information relating to the garden that the respondent had provided. The fact that the appellants had disputed the vendor’s registration of title to the garden was not sufficient to lead a reasonable person to suspect that an offence had been committed and the TSO had failed to make any inquiries as to the extent of, or reasons for, the appellants’ objection. There were no grounds for a reasonable suspicion that the respondent had committed an offence under section 1 of the Act.Andrew Clark (instructed by the legal department of Lancashire County Council) appeared for the appellants; Hugh Barton (instructed by Farleys, of Blackburn) appeared for the respondent.Eileen O’Grady, barrister