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Land - 1970- 1979

Land Law. Now includes Easements, Restrictive Covenants, occupier's liability. See also Land Charges, Registered Land, Landlord & Tenant, Housing

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 149 cases, and was prepared on 21 October 2013. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.
West Midland Baptist (Trust) Association (Inc) -v- Birmingham Corporation; HL 1970
Holmes -v- Cowcher [1970] 1 WLR 834
1970
ChD
Stamp J
Land, Limitation Casemap

The court accepted the proposition put forward by counsel for the mortgagee that on an application by the mortgagor to redeem the mortgage, all the arrears of interest (amounting to almost 10 years) had to be paid as a condition of redemption, not just interest for the last 6 years.
Redbridge London Borough Council v Jaques [1970] 1 WLR 1604
1970

Lord Parker CJ
Land Casemap

An authority cannot authorise an unlawful restriction on the use of land subject to a public right of way.
Barclay -v- Barclay [1970] 2 QB 677
1970

Land, Trusts Casemap
1 Citers
Eagling -v- Gardner [1970] 2 All ER 838
1970

Land Casemap

Introductory words in a covenant in a conveyance of land such as 'to the intent that such covenant shall enure for the benefit of and be annexed to the remainder of the . . . Estate . . .' are words of express annexation, but they are also not inconsistent with the establishment of a building scheme.
Manchester Corporation -v- Connolly [1970] Ch 420
1970
CA
Lord Diplock
Planning, Land, Litigation Practice Casemap
1 Citers
The local authority sought to use an injunction to assist in enforcing planning controls. The court had no power to make an interlocutory order for possession. Lord Diplock: "The writ of possession was originally a common law writ (although it is now regulated, as I say, by Ord. 45 r.3) under which it was ordered that the plaintiff recover possession of the land. Like other common law remedies it did not act in personam against the defendant. It authorised the executive power as represented by the sheriff to do certain things, perform certain acts, in this particular case to evict from land persons who are there and deliver possession of the land to the plaintiff. "
In re Dolphin's Conveyance; ChD 1970
Chung Khiaw Bank -v- United Overseas Bank [1970] AC 767
1970

Land Casemap
1 Citers
A judgment creditor who obtains a charging order against his debtor's property can take only such interest as the debtor has in the property.
Pugh -v- Savage [1970] 2 QB 373; [1970] EWCA Civ 9; [1970] 2 WLR 634; [1970] 2 All ER 353; (1970) 21 P & CR 242
14 Jan 1970
CA
Harman, Salmon
Land, Landlord and Tenant Casemap
1 Citers
The enjoyment of an easement by a succession of tenants is sufficient to create a right by prescription for the landlord.
Link[s] omitted
In Re St Peter's, Bushey Heath [1971] 1 WLR 357
26 Oct 1970
Conc
G. H. Newsom Q.C.
Ecclesiastical, Land Casemap

cw Ecclesiastical Law - Faculty - Secular purpose - Use of unconsecrated curtilage of church - Jurisdiction to grant faculty
A faculty was sought for the grant of a right of way easement over unconsecrated land, but within the curtilage of the church. Held: Such an easement could be granted, but the land itself must remain the property of the incumbent. Private rights of way should be granted only after full and open argument. The only way to grant an easement over consecrated land is through an Act of parliament or a church measure.
[ lip ]
Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) -v- Anglia Building Society; HL 09-Nov-1970
Willson and Another -v- Greene and Another [1971] 1 WLR 635
10 Nov 1970
ChD
Mr Justice Foster
Land, Contract

A plot of land had been originally sold after being pegged out, but the conveyance plan differed from the line pegged out. The land was again sold with a plan on both contract and conveyance still being incorrect. In each case the plan had been used 'for identification purposes only', and the purchaser knew the layout of the actual boundary. Held: Since the plans were used for identification purposes only, and the parties knew of the actual position of the boundary, the court was entitled to take into account the surrounding circumstances to construe the contract. The actual layout on the land prevailed.
[ lip ]
Brunner -v- Greenslade [1971] Ch 993
1971

Land

Gotobed -v- Pridmore; CA 1971
North Sydney Printing Property Ltd -v- Sobemo Investment Co. Ltd [1971] NSWLR 150
1971

Hope J
Commonwealth, Land Casemap

(Supreme Court of New South Wales in Equity) A company sold part of its land, which abutted on to a street. The retained land had no access to a highway, but the company intended subsequently to sell it to the local authority as an addition to a contiguous car park owned by that authority. The proposed sale to the local authority went off, and the company was left with its retained land, which was landlocked. The company then sought a declaration that its retained land had a way of necessity over the land sold. The company contended that it was entitled to a way of necessity by virtue of public policy, and that the intention of the parties was irrelevant. The purchaser contended that public policy was irrelevant, and that the company was entitled to no right of way, since the intention of the parties was that the company should have no such right. Held: The claim failed. A way of necessity arises to give effect to an actual or presumed intention. On the facts the company's intention was the contrary: its intention was that the land retained should have no access over the land conveyed, but instead should have access over the car park.
Barstow and Others -v- Rothwell Urban District Council (1971) 22 P&CR 942
1971

Land Casemap

Wilson -v- Liverpool Corporation; CA 1971
Allan's Trustes -v- Lord Advocate; HL 1971
Cuckmere Brick Co Ltd -v- Mutual Finance Ltd; CA 1971
Southwark London Borough Council -v- Williams; CA 1971
Coleen Properties Ltd -v- Minister of Housing and Local Government [1971] 1 All ER 1049; (1971) 1 WLR 433
1971
CA
d Denning MR, Sachs LJ, Buckley LJ
Land, Administrative Casemap
1 Citers
The minister confirmed a compulsory purchase order depite it having been made without any supporting evidence. Held: The order was set aside.
Tehidy Minerals Ltd -v- Norman [1971] 2 QB 528
1971
CA
Buckley LJ
Land, Limitation Casemap
1 Cites

The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the Prescription Act 1832 but not at common law. Discussing Angus v Dalton, applying the doctrine of lost modern grant: "where there has been upwards of 20 years' uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason . . the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made."
Prescription Act 1832
Giles -v- County Building Constructors (Hertford) Limited; ChD 1971
Grigsby -v- Melville & Another [1972] 1 WLR 1355; [1973] 1 All ER 385
1972
ChD
Brightman J
Land Casemap

A purchaser of a house above a cellar sought an injunction to support his assertion that a cellar which was served by an access only from the defendant seller's retained property had been included in the conveyance of 'all that dwellinghouse' Held: The right asserted by the seller to use the premises as a store gave, in effect, an exclusive right of user over the whole of the servient tenement, and was not to be supported. The cellar had been included in the sale.
F T Challinor -v- Stone Rural District Cuncil Ref/161/1971
1972
LT
JR Laird
Land
1 Citers
Hutton -v- Esher Urban District Council [1972] 3 All ER 504
1972
ChD
Land

1 Citers
The council sought to build a sewer. It had power to acquire land for this purpose, and sought to acquire the plaintiff's bungalow. He argued that the word land did not include a building on land.
Lee-Parker -v- Izzett (2) [1972] 1 WLR 775; [1972] All ER 800
1972

Goulding J
Land, Contract Casemap
1 Cites
A contract was exchanged subject to 'the purchaser obtaining a satisfactory mortgage'. Held: A contract which is said to be conditional, but where the condition is not expressed clearly or is too imprecise as in this case, may be void for uncertainty.
Banning -v- Wright (Inspector of Taxes); HL 1972
Texaco Antilles Ltd -v- Kernochan; HL 1972
British Railways Board -v- Herrington; HL 16-Feb-1972
Smout -v- Farquharson Unreported, 12 December 1972
12 Dec 1972
CA
Land

The court considered a case where there was difficulty in deriving the horizontal boundaries of a property.
Official Custodian for Charities -v- Goldridge (1973) 26 P & CR 191
1973
CA
Lord Denning MR
Land

The social policy underlying the 1967 Act is that "the land belongs in equity to the landowner and the house belongs in equity to the occupying leaseholder."
Leasehold Reform Act 1967
St Edmundsbury -v- Clark (No 2); ChD 1973
Wroth -v- Tyler; 1973
Hutton -v- Esher Urban District Council [1973] 2 All ER 1123
1973
CA
Local Government, Land Casemap
1 Cites
1 Citers
(reversed) The local authority sought to acquire the plaintiff's bungalow by compulsory powers which allowed it to purchase land required to construct a new sewer. Held: By the 1978 Act, the word land was to be read to include buildings upon the land, and this was a correct purchase.
Interpretation Act 1978
Rugby Joint Water Board -v- Shaw-Fox; HL 1973
Sinclair-Hill -v- Southcott (1973) 26 P&CR 490
1973

Graham J
Land, Contract Casemap
1 Citers
There was an unconditional sale of a property to a developer for which the vendor was seeking planning permission. The vendor withdrew his application for planning permission after the contract. Held: The principle of the vendor's trusteeship extended to prohibit withdrawal of a planning application in such circumstances: "It was not suggested that a term to keep the planning application in being should be implied. Nor could it be said that a planning application could properly be regarded as part of property passing on sale in the same way and for the same reasons as the roses in the front garden. If it were the principle of trusteeship on the part of the vendor could be applied without any hesitation. … Under modern conditions, where all potential building land is subject to planning consents of various kinds, and where local authorities are likely to have large numbers of such applications before them, it is obvious that a high rather than a low place in the queue was of value to a speculative bidder … It follows that the vendor in such circumstances is in my judgment under an obligation after the contract has been signed, not to withdraw a planning application which must be assumed to be of value to the purchaser, at any rate without obtaining the purchaser's consent to such withdrawal."
Smith -v- Scott; ChD 1973
St Edmundsbury and Ipswich Diocesan Board of Finance -v- Clark (No.2); CA 1973
Re Endricks' Conveyance [1973] 1 All ER 843
1973
ChD
Goulding J
Land, Contract
1 Citers
Goulding J remarked that redundant words in a contract may sometimes serve the useful purpose of increasing clarity.
Saint -v- Jenner [1973] Ch 275
1973

Land
1 Citers
The dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. The servient owner installed speed bumps. The dominant onwer alleged interference with the right of way. Held: This unreasonable use, a use not consistent with the principle of civiliter, entitled the servient owner to erect speed bumps along the drive but did not justify the erection of speed bumps of such severity that a motor car moving at, say, 10 to 15 mph would be unable to cross the bumps without the bumps striking the car's undercarriage.
Halifax Building Society -v- Clark; ChD 1973
Lloyds Bank Limited -v- Marcan [1973] 1 WLR 1387
1973
CA
Russell LJ, Cairns LJ
Equity, Land
The mortgagor, knowing of the bank's application for possession of the property, granted a lease to his wife for a term of twenty years. He intended to deprive the mortgagee bank of the ability to obtain vacant possession of the property as and when a possession order was made. Held: Before section 172 could be used to avoid a transaction, dishonesty had to be shown. This transaction was dishonest. Russell LJ said:- "If he disposes of an asset which would be available to his creditors with the intention of prejudicing them by putting it, or its worth, beyond their reach, he is in the ordinary case acting in a fashion not honest in the context of the relationship of debtor and creditor"
Cairns LJ said that:- "a conveyance for good consideration would be regarded as fraudulent if made with the deliberate intention of hindering creditors and for the benefit of the debtor himself rather than as a bona fide… arrangement"
Law of Property Act 1925 172
Wroth -v- Tyler [1974] Ch 30; [1973] 1 All ER 897
1973

Professional Negligence, Land
The presence of a class F Land Charge registered against a property was a breach of the condition requiring vacant possession. A solicitor failing to complete a registration becomes liable to his client in negligence.
Murrayfield Ice Rink Ltd -v- Scottish Rugby Union Trustees 1973 SC 21
1973

Lord Justice Clerk Grant
Scotland, Land
1 Citers
The court referred to a clause in the feu charter which described a right of use of an area of ground as a car park as a servitude right as "a mere servitude right."
Grigsby -v- Melville [1973] 3 All ER 455
6 Jul 1973
CA
Russell LJ, Stamp LJ, James Lj
Land

1 Citers
The seller had owned two adjoing properties. He sold one off to the plaintiff, describing it in the conveyance as 'all that dwellinghouse'. A cellar under the part sold off had access only from the retained property, but contained supports for the room above. The plainttiff sought an injunction to restrain the seller from using the cellar. Held: The seller's appeal failed. The term dwellinghouse was to be interpreted to include the cellar. There was no ambiguity in the description so as would allow the court to look to any surrounding circumstances to construe the deed. Had he intended to exclude the cellar, it would have been easy to do so. This was not an action for rectification.
Storer -v- Manchester City Council [1974] 1 WLR 1403
1974

Land, Contract

Commissioner for Railways -v- Valuer-General [1974] AC 328
1974
PC
Lord Wilberforce
Land, Rating Casemap

The parties disputed the value of a property in the centre of Sydney beneath which there had been extensive excavations to a depth of 40 feet or more. The question was how the property was to be valued for rating purposes. The statute proceeded on the basis that it was a parcel of land that had to be valued. The Commissioner said that this meant land defined only by vertical boundaries – land usque ad coelum et ad inferos, in other words. The Valuer-General said that it was only possible to value as land that which had a recognisable connection with the surface. Otherwise it had to be valued as stratum, to which special provisions applied. Held: The question that the Valuer-General's argument gave rise to was whether there was a complete dichotomy between land and strata beneath it and, if so, what that dichotomy was. The statutory definition did not answer the question how, in the context of the legislation, layers defined by horizontal boundaries were to be treated. "It is in relation to this question", he said, "that the Latin tag usque ad coelum et ad inferos has been introduced and given a prominent place in the argument." Lord Wilberforce said that it was unlikely that such a sweeping, unscientific and unpractical doctrine as that 'land' meant the whole of the space from the centre of the earth to the heavens would appeal to the common law mind.
Wrotham Park Estate Ltd -v- Parkside Homes Ltd; ChD 1974
Holiday Inns Inc -v- Broadhead; 1974
Trocette Property Co Ltd -v- Greater London Council; CA 1974
Quadrangle Development and Construction Co Ltd -v- Jenner; CA 1974
British Railways Board -v- G J Holdings Ltd (1974) 230 EG 973
1974

Limitation, Land Casemap
1 Citers
There can be no adverse possession where the squatter's use of the land was not inconsistent with the use intended by the paper owner.
Harrison -v- Battye [1975] 1 WLR 58; [1974] 3 All ER 830
1974

Contract, Land Casemap

Where it is intended that a contract should come into existence upon exchange of parts executed by the various parties, it was necessary for the parts exchanged to be identical. The effective date when parties are bound is the date of exchange.
Longbottom and Longbottom -v- Bingley Urban District Council [1974] 14 RVR 139
1974
LT
Land Casemap
1 Citers
When calculating compensation on the compulsory purchase of property occupied by a partnership, an allowance should be made for managerial or supervisory wages by adding back the wages or drawings of both partners to the average net profits for three years. This was because the council were required to take the premises and the business as they found them and the business was a partnership of the two claimants and it was irrelevant that it might have been bought by a limited company if sold as a going concern.
Law -v- Jones; 1974
Wickham Tools v Schuler AG [1974] AC 235
1974
HL
Lord Wilberforce
Land Casemap
1 Cites

Lord Wilberforce referred to the Watcham case as: "a precedent which I had thought had long been recognised to be nothing but the refuge of the desperate." but "Whether in its own field, namely that of interpretation of deeds relating to real property by reference to acts of possession, it retains any credibility in the face of powerful judicial criticism is not before us."
In Re Wallis & Simmonds (Builders) Ltd [1974] 1 WLR 391; [1974] 1 All ER 561; [1974] AC 467
1974
ChD
Templeman J
Land, Equity Casemap

The deposit of title documents, without more, gives rise to an inference that the deposit was intended by the parties to operate as creating an equitable charge or mortgage over the property whose title document is deposited. In logic there could be no distinction between deposits to secure a first and third party indebtedness.
Templeman J said: "But in my judgment this is a contractual lien - it is said to be a contractual lien - and that makes all the difference. It is also a contractual charge; true it is that the charge arises by presumption, but it does not arise by operation of law. What the court does is to say: `We shall not compel the parties to write down in so many words what the effect of the deposit of title deeds is; we shall simply assume that when they contract, and although they probably do not know the consequences, the person who takes the title deeds contracts not only to retain them but also to have an equitable charge on the land.' The presumption reads into the contract the charge which is implied. If that is right, the charge was created by the company and is therefore registrable under s95."
Worcestershire County Council -v- Newman [1974] 2 All ER 867
1974
QBD
Cairns LJ
Land, Torts - Other Casemap

A complaint had been made to the magistrates that the authority had failed in its duty to repair pathways. The paths were crossed by fencing, by barbed wire, and vegetation had grown.
Heron Garage Properties Ltd -v- Moss; 1974
Myers -v- Milton Keynes Development Corporation [1974] 1 WLR 696
1974
CA
Lord Denning MR
Land, Damages Casemap
1 Cites
1 Citers
Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the "scheme" meant that the valuer should disregard the scheme altogether or permitted him to have regard to it when identifying the "proposals of the acquiring authority" in accordance with which the valuer had to assume planning permission would be granted. A valuer assessing land for compulsory purchase was at risk of having to 'conjure up a land of make-believe' and 'let his imagination take flight to the clouds' "What is to be assumed about the Walton Manor Estate itself? Here again one thing is clear. You are not to assume that it would have been developed in accordance with the proposals of the development corporation. You are to disregard any increase by reason of the estate itself being developed in accordance with their proposals. . . But you are to assume that after 10 years planning permission would be available for development as a residential area."
and “It comes to this. In valuing the estate, you are to disregard the effect of the scheme, but you are to assume the availability of planning permission. This is best explained by taking an imaginary instance: A scheme is proposed for building a motorway across Dartmoor with a service station every five miles. Suppose that land is taken on which a service station is to be built as soon as possible. In assessing compensation, you are to disregard any increase due to the proposed motorway, or service stations. But if the landowner had already been granted actual permission for that piece of land for commercial purposes (for example, as a café), you are to have regard to it: see section 14 (2). Even if he had no such permission already, you are to assume that he would have been granted planning permission for a service station; see section 15 (1). And you are to value that land with that permission in the setting in which it would have been if there had been no scheme. If it would have been a good site for a service station, there would be a great increase in value. If it would have been in an inaccessible spot on the wild moor, there would be little, if any, increase in value because there would be no demand for it. A further complication arises when the proposals are not put into effect for 10 years. Planning permissions are not in practice granted so far ahead. They are only granted for immediate development. In the illustration you are therefore to assume that, after 10 years, planning permission would be granted for development of a service station – in a setting where there had been no scheme.”
Davis -v- Whitby [1974] 1 Ch 186
1974
ChD
Lord Denning MR, Stamp LJ
Land, Limitation

The court discussed the need for some system of acquisition of right by user. Lord Denning MR: "…. the long user as of right should by our law be given a lawful origin if that can be done." Stamp LJ: "…. if long enjoyment of a right is shown, the court will strive to uphold the right by presuming that it had a lawful origin."
Law of Property Act 1925 40
Argyle Motors (Birkenhead) -v- Birkenhead Corporation [1974] CLY 374; [1975] AC 99
1974
HL
Lord Wilberforce
Land

The House described the way that the 1845 Act continued to affect the calculation of compensation: "The relevant section of the Act of 1845 (section 68) has, over 100 years, received through a number of decisions, some in this House, and by no means easy to reconcile, an interpretation which fixes upon it a meaning having little perceptible relation to the words used. This represents a century of judicial effort to keep the primitive wording - which itself has an earlier history - in some sort of accord with the realities of the industrial age."
Land Compensation Act 1965 10
Clearbrook Property Holdings Limited -v- Verrier [1974] 1 WLR 243
1974
ChD
Templeman J
Land, Contract Casemap
1 Citers
The issue was whether a caution registered in the Land Registry by a plaintiff purchaser who was claiming specific performance of an agreement for sale should be vacated. The effect of the vacation of the caution was that the plaintiff's claim for specific performance would have been put in a position in which it was bound to fail in limine. Held: To redress the unfairness to the defendant vendor, whose property was unsaleable while the caution remained registered, the caution should be vacated on the plaintiffs being given the opportunity to make an immediate application for an interlocutory injunction restraining the defendant from dealing with the land in any way inconsistent with the plaintiff's claim pending the trial, which would not be opposed by the defendant, and the defendant getting a cross undertaking in damages.
Haron Development Company Ltd (in liquidation) -v- West Sussex County Council Ref/167/1973
1974
LT
Douglas Fanks QC
Land
Wallis's Cayton Bay Holiday Camp Ltd -v- Shell-Mex and BP Ltd [1974] 3 WLR 387; [1975] QB 94
10 Jul 1974
CA
Lord Denning MR, Stamp and Ormrod L.JJ.
Land, Limitation Casemap
1 Cites
1 Citers
A strip of land between a holiday camp and a garage had been conveyed as an intended roadway. It had not been fenced. A plot of land was sold by the previous farmer to the garage. Later the plaintiffs bought the farm, excluding the roadway, and the disputed land. They farmed the disputed land for several years. The garage was sold to the defendants, but the land remained unidentified, and the plaintiffs continued to farm it. The new road was abandoned, and the defendants tried to sell the disputed land to the plaintiffs. When they sought to fence the land, the action was begun, claiming possessory title, but failed. The plaintiffs appealed. Held: The owners of the disputed land had left it unoccupied for the purposes of eventual use in connection with the proposed new road and there had been no sufficient ouster of the owners so as to create 12 years' adverse possession within the Limitation Act 1939. The appeal failed.
Link[s] omitted
Time Products Ltd -v- Combined English Stores Unreported, 2 December 1974
2 Dec 1974

Oliver J
Land, Trusts
1 Citers
The plaintiff and the defendant were each interested in buying a property and had agreed that one of them would make an offer, the other refraining from doing so, and that if the offer were to be accepted the purchaser would deal with the property in a manner to the advantage of both. The arrangement was not sufficiently detailed as to constitute an enforceable contract and the offeror, having become the purchaser with the other refraining from competing, sought to keep the property for itself, excluding the other from any benefit. Held. The property was declared to be held on trust for the two parties in equal shares.
Bracewell -v- Appleby [1975] Ch 408
1975
ChD
Graham J
Land, Damages

1 Citers
The defendant wrongly used and asserted a right of way over a private road to a house which he had built. Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the grounds of the plaintiff's delay in commencing proceedings. The defendant was "liable to pay an amount of damages which so far as it can be estimated is equivalent to a proper and fair price which would be payable for the acquisition of the right of way in question."
Graham J said: "I think that for the purposes of estimating damages [the plaintiffs] and the other servient owners in Hill Road, albeit reluctant, must be treated as being willing to accept a fair price for the right of way in question and must not be treated as if they were in the extremely powerful bargaining position which an interlocutory injunction would have given them if it had been obtained before the defendant started operations and incurred expense. Such is to my mind the penalty of standing by until the house is built.
On the evidence here the probable figure of notional profit which the defendant has made, being the difference between the overall cost of the new house and its present-day value seems to be somewhere between £4,000 and £6,000 and I think it is fair to take £5,000 as about as accurate a figure as one can get. The circumstances here are very different from those in the Wrotham Park case and I think that the proper approach is to endeavour to arrive at a fair figure which, on the assumption made, the parties would have arrived at as one which the plaintiffs would accept as compensating them for loss of amenity and increased user [of the private road], and which at the same time, whilst making the blue land a viable building plot, would not be so high as to deter the defendant from building at all. . . . I think he would have been prepared to pay what is relatively to his notional profit quite a large sum for the right of way in question and to achieve the building of his new home. This was a time of rising property values and I think he would have been prepared to pay £2,000 to get his right of way and if he had made such an offer, I think the other five owners in Hill Road ought also to have been prepared to accept it.. . . "
Regina -v- Secretary of State for the Environment ex parte Hood; CA 1975
Michael Richards Properties Ltd -v- Corporation of Wardens of St Saviour's Parish Southwark [1975] 2 All ER 416
1975

Goff J
Contract, Land

Property was offered for sale by tender. The tender documents contained all the detailed terms upon which the contract was to be based. The successful tender was accepted by letter, but by mistake the secretary who typed it typed in the words "subject to contract" at the bottom. The purchaser had refused to complete after discovering that the local authority intended to acquire the property compulsorily. Held: Since there was nothing left to negotiate, the words subject to contract could be rejected as meaningless. As to the request for the return of the deposit: "Section 49, however, was passed to remove the former hardship which existed where a defendant had a good defence in equity to a claim for specific performance but no defence in law, and, therefore, the deposit was forfeited. I am not prepared to say that the jurisdiction can only be exercised in such a case, but outside that ambit, it should only be exercised, if at all, sparingly and with caution.
Here the plaintiffs have advanced only two reasons why I should exercise my discretion in their favour. First, that if I do not, the defendants will have made a profit, and secondly, that the warning concerning the views of the local authority could have been communicated before the deposit was paid. The first element, however, is inherent in cases where a deposit is forfeited, and the second is not really significant because the contract was concluded before then by the letter of acceptance…."
Law of Property Act 1925 49(2)
Higgs -v- Nassauvian Ltd [1975] AC 464
1975
PC
Sir Harry Gibbs
Land Casemap
1 Cites

A claim was made for possession of two plots of land, one some 92 and the other some 12 acres. The land was part arable, part pine barren and not fenced or otherwise enclosed. Held: Sir Harry Gibbs said: "It is clearly settled that acts of possession done on parts of a tract of land to which a possessory title is sought may be evidence of possession of the whole." and as to the case of Blantyre, "This rule is not applicable to a question of undefined and disputed boundary (Clark v. Elphinstone (1880) 6 6 App.Cas. 164, 170-171; West Bank Estates Ltd. v. Arthur [1967] 1 AC 665, 679-680), but this does not mean that acts done on part of the land are only relevant to prove possession of the whole if the land is enclosed by a wall or other physical barrier. The property claimed by possession may be sufficiently defined in other ways, e.g. where the claim is to trees in a belt of woodland (Stanley v. White (1811) 14 East 332), to the bed or foreshores of a river (Jones v. Williams) (1837) 2 M&W 326 and Lord Advocate v. Lord Blantyre, 4 App.Cas. 770) or to the right to fish in a river (Lord Advocate v. Lord Lovat (1880) 5 App.Cas. 273, 289). In the present case, although the two tracts were not physically enclosed, their boundaries were known and undisputed, and possession of the whole tracts might have been established by appropriate evidence of acts done on parts of them. The question was one of fact and degree and depended upon a consideration of all the circumstances of the case."
Schindler -v- Pigault [1975] 30 P&CR 328
1975

Megarry J VC
Contract, Land Casemap
1 Citers
The purchaser of land had not completed and sought return of the deposit paid claiming default by the vendor, or alternatively under section 49(2). Held. He was entitled to the repayment of the deposit on the first ground. The court went further to hold that, even if the purchaser had been at fault, section 49(2) was wide enough to enable the court to grant relief, giving a broad range of action.
Megarry J said: "In its 50 years of life, this section has remained remarkably quiescent. There are few authorities on it. From Charles Hunt Limited v Balmer, Finkielkraut v Monohan and James Macara Ltd. v Barclay, it appears, as one might expect, that the jurisdiction is discretionary and that it is to be exercised where justice requires it, but it will not be exercised so as to deprive a purchaser of the deposit which he is legally entitled to recover. This sub-section is essentially one that is available for use in mitigation of the vendor's right at law to forfeit the deposit: see Williams' Contract of Sale of Land (1930), pp. xv.94. Mr Lightman, basing himself mainly on Galbraith v Mitchenhall Estates Ltd, and the authorities there cited, contended that the jurisdiction under section 49(2) should only be exercised in favour of one party if there was unconscionable conduct by the other, but I do not think that what is appropriate in relation to any alleged equity of restitution provides any reliable touchstone for the exercise of the statutory jurisdiction conferred by section 49(2). That jurisdiction is, I think, exercisable on wider grounds than that, including a general consideration of the conduct of the parties (and especially the applicant), the gravity of the matters in question and the amounts at stake: see Shiloh Spinners Ltd v Harding which, though on a quite different point, provides a helpful analogy. The jurisdiction is, of course, statutory and is not the product of equity, but its discretionary character in relation to deposits on the sale of land makes it at least akin to equitable relief against forfeiture. A purchaser who does not claim rescission or is unable to establish a sufficient case for it may nevertheless recover his deposit by suing for its return and making out a proper case under the subsection."
Law of Property Act 1925 49(2)
LE Walwin and Partners Limited v West Sussex County Council [1975] 3 All ER 604
1975
ChD
Plowman V-C
Land
1 Citers
The parties disputed the extent of a public bridleway. The definitive map appeared to show a bridleway stopping at a point where it met a footpath. However the definitive statement described the bridleway as running "to the foreshore" ie. beyond the point at which the bridleway met the footpath. Held. The bridleway extended to the foreshore. The unequivocal statement prevailed because of inconsistencies in the map. In considering the definitive map of right of way, the map and statement must be read together. The map and statement when read together demonstrated that the right of way extended to the foreshore. It is necessary for the interested member of the public only to establish that the map in general shows a path which the statement purports to particularise. Held. the correct approach to interpretation of the definitive map and statement must be a practical one. They should be examined together with a view to resolving the question whether they are truly in conflict or the statement can properly be read as describing the position of the right of way. If they are in conflict, then the map must take precedence since the discretionary particulars depend for their existence upon the conclusiveness of the obligatory map. Unless the statement can properly be interpreted as describing the same footpath as that shown on the map, then the statement cannot be regarded as conclusive evidence of the position of the footpath shown on the map.
New Windsor Corporation -v- Mellor; CA 1975
Hereford and Worcester County Council -v- Newman; CA 1975
St Edmondsbury and Ipswich Diocesan Board of Finance -v- Clark (No 2) [1975] 1 All ER 772; [1975] 1 WLR 468
1975
ChD
Sir John Pennycuick
Land
1 Citers
A reservation contained In a conveyance must be construed in the context of the deed as a whole, and in the light of the surrounding circumstances. Held: Sir John Pennycuick said: "Mr Vinelott contended that the proper method of construction is first to construe the words of the instrument in isolation and then look at the surrounding circumstances in order to see whether they cut down the prima facie meaning of the words. It seems to us that this approach is contrary to well-established principle. It is no doubt true that in order to construe an instrument one looks first at the instrument and no doubt one may form a preliminary impression upon such inspection. But it is not until one has considered the instrument and the surrounding circumstances in conjunction that one concludes the process of construction. Of course, one may have words so unambiguous that no surrounding circumstances could affect their construction. But that is emphatically not the position here, where the reservation is in the loosest terms, i.e. simply ´right of way.' Indeed those words call aloud for an examination of the surrounding circumstances and, with all respect, Mr Vinelott's contention, even if well-founded, seems to us to lead nowhere in the present case."
Re Kershaw's Application (1975) 31 P& CR 187
1975
LT
Douglas Frank QC
Land, Damages Casemap

Two bungalows were to be built in the grounds of a house subject to a restrictive covenant. The tribunal considered the degree of disturbance which would be suffered by the objector neighbours. Held: The neighbours would "suffer considerably from the noise of builder's vehicles, from the construction of the driveway and by the general disturbance associated with building works". This would be a considerable disadvantage for up to a year and "One of the questions, perhaps the most important question I have to decide, is what weight I should give to this intensive inconvenience and noise generated by builders' traffic for this very limited period. Clearly for that period the restrictive covenant does secure practical benefits of substantial value or advantage to (the objector). On the other hand, I cannot think that such a literal construction of the section is intended, but rather one should look at the matter in a broader context and regard this as a short term, albeit intensive interference but small and not so substantial in relation to the overall long term enjoyment of the property."
In principle, protection from short term disturbance arising from construction, although providing a "substantial" benefit during the construction period, had to be looked at in a broader context for the purposes of section 84.
Law of Property Act 1924 84
Edwards -v- Marshall Lee; ChD 1975
Rightside Properties Ltd -v- Gray [1975] Ch 72
1975

Walton J
Contract, Land

Lund -v- Taylor [1975] 31 P & C R 167
1975
CA
Land
1 Cites
1 Citers
The defendant appealed against a finding that a building scheme was effective over his land. There was no evidence that any purchaser had seen the architect's plan prepared for the common vendor or was told that the common vendor was proposing to exact similar (or indeed any) covenants from the purchasers of other plots. Held: The appeal succeeded. There was no sufficient evidence from which it could be inferred that the common vendor intended to create a scheme of local law.
Tiverton Estates Ltd -v- Wearwell Ltd; CA 1975
St Edmunsbury -v- Clark (No 2) [1975] 1 WLR 468
1975
CA
Land Casemap

The conveyance created "a right of way". The court considered the manner of construction of a conveyance, saying: "We feel no doubt that the proper approach is that upon which the court construes all documents; that is to say, one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of the surrounding circumstances." However, "one may have words so unambiguous that no surrounding circumstances could affect their construction."
Smirk -v- Lyndale Developments Ltd [1975] Ch 321; [1975] 1 All ER 690
1975
ChD
Pennycuick V-C
Land, Limitation, Landlord and Tenant Casemap

1 Citers
The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord. Held: The cases demonstrated that "the law … has got into something of a tangle", but the doctrine, at least as summarised by Parke B, appeared to be "in accordance with justice and common sense". If a tenant occupies land belonging to the landlord but not included in the demise, that land is presumed to be an addition to the land demised to the tenant, so that it becomes subject to the terms of the tenancy and must therefore be given up to the landlord when the tenancy ends. For there to be a surrender of an existing lease by operation of law because of the grant of a new lease,
Crabb -v- Arun District Council; CA 23-Jul-1975
Horrocks and Another -v- Forray [1975] EWCA Civ 9; [1976] 1 All ER 737; [1976] 1 WLR 230
7 Nov 1975
CA
Land, Wills and Probate
Link[s] omitted
Harris -v- Birkenhead Corporation [1976] 1 All ER 341; [1975] EWCA Civ 10; [1975] 1 WLR 379
12 Nov 1975

Land
1 Citers
For the purposes of that Act the Corporation, having the immediate right of control of the property, became its occupier as soon as a tenant had left. An occupier has a duty to protect infants from a danger of trespassing. The Council knew the property was empty. They had control of it and they had done nothing about providing any such protection.
Occupiers Liability Act
[ Bailii ]
Munton -v- Greater London Council; CA 1976
Steadman -v- Steadman [1976] AC 536
1976
HL
Lord Reid
Contract, Land Casemap

A mere payment of a sum of money might amount to an act of part performance, as might the act of a purchaser instructing solicitors to prepare and submit a draft conveyance or transfer, so as to leave asituation capable of enforcement in equity. There is no general rule against the payment of a sum of money constituting an act of part performance for the purposes of s 40. It is necessary to look at the surrounding circumstances, including payments of money, to see if they pointed to some oral contract consistent with the alleged contract.
Lord Reid said: "This matter has a very long history. Section 40 replaced a part of section 4 of the Statute of Frauds 1677 (29 Car. 2 c. 3), and very soon after the passing of that Act authorities on this matter began to accumulate. It is now very difficult to find from them any clear guidance of any general application. But it is not difficult to see at least one principle behind them. If one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn round and assert that the agreement is unenforceable. Using fraud in its other and less precise sense, that would be fraudulent on his part and it has become proverbial that courts of equity will not permit the statute to be made an instrument of fraud . . It must be remembered that this legislation did not and does not make oral contracts relating to land void; it only makes them unenforceable. And the statutory provision must be pleaded; otherwise the court does not apply it. So it is in keeping with equitable principles that in proper circumstances a person will not be allowed “fraudulently” to take advantage of a defence of this kind. There is nothing about part performance in the Statute of Frauds. It is an invention of the Court of Chancery and in deciding any case not clearly covered by authority I think that the equitable nature of the remedy must be kept in mind."
Law of Property Act 1925 40 - Statute of Frauds 1677 4
Central Electricity Generating Board -v- Clwyd County Council [1976] 1 All ER 251; [1976] 1 WLR 151
1976

Goff J
Land
1 Citers
Wills Trustees -v- Cairngorm Canoeing and Sailing School [1976] SC (HL) 30
1976
HL
Lord Wilberforce, Lord Salmon, Lord Fraser of Tullybelton
Utilities, Transport, Scotland, Land
1 Citers
The public right of navigation (PRN) is a right to public use of the river. The river may be used by the public for purposes of exercise and recreation as well as transport and commerce. At common law PRN cannot be lost by lack of use over time. "A public right of way on highways is established by use over the land of a proprietor." The existence of the right does not depend upon there being two termini for any journey. The right may embrace the passage of articles without human accompaniment, for instance, the floating of logs on the current either singly or in rafts.
Crown Estate Commissioners -v- Fairlie Yacht Slip Ltd 1976 SC 161
1976

Lord Dunpark
Land, Scotland
1 Citers
The defenders had laid down moorings on the seabed in Fairlie Bay. They argued that the right to lay moorings was a necessary incident of the public right of navigation. The pursuers maintained, however, that the right to anchor was restricted to temporary anchorage in the course of passage and that it did not extend to quasi-permanent anchorage between voyages. Held: A right to lay up a vessel between voyages is a not necessary incident of a public right of navigation: "the public right of navigation is restricted in the manner for which the pursuers contend. In my opinion, the earliest point of time when navigation begins is when a vessel is being prepared for a voyage, and navigation ends when the ship is left, either unmanned or with a caretaker crew, at the end of a voyage. A ship moored between voyages is not being navigated.
The laying up of a vessel is, in my opinion, an incident of ownership; it cannot properly be regarded as a necessary incident of the right of navigation."
Treloar -v- Nute [1976] 1 WLR 1295
1976

Land, Limitation Casemap
1 Citers
Gibson -v- Hunter Home Designs Limited 1976 SC 23
1976

Lord President Emslie
Scotland, Land

A disposition had been executed but not delivered. Held: Entry to the subjects and payment of the price, referable to the terms of the missives, did not instruct the existence of a trust pending delivery of the disposition to the purchaser. There was no evidence of the constitution of a trust and that it was impossible to entertain the suggestion that as a result of the purchaser's entry to the subjects and payment of the price a trust in his favour had come into existence. "In the law of Scotland no right of property vests in a purchaser until there has been delivered to him the relevant disposition. On delivery of the disposition the purchaser becomes vested in a personal right to the subjects in question and his acquisition of a real right to the subjects is dependent upon recording the disposition in the appropriate Register of Sasines. Putting the matter in another way the seller of subjects under missives is not, in a question with the purchaser, divested of any part of his right of property in the subjects of sale until, in implement of his contractual obligation to do so, he delivers to the purchaser the appropriate disposition."
Kingston -v- Phillips Unreported, 1976 Transcript 279
1976
CA
Buckley LJ
Land Casemap

The court was asked to construe a parcels clause in a transfer: "It will be observed that the parcels as there set out are really almost devoid of any particularity; all that is said about the property conveyed is that it is part of the Chicklade Estate and part of the dwelling house thereon. Unhappily, the plan which was annexed to that conveyance is wholly inadequate to perform the function which the draftsman of the conveyance seems to have contemplated that it would. It is a very dangerous practice for a conveyancer to frame a conveyance with parcels which are not adequately described. Perhaps the most important feature of all the features of a conveyance is to be able to identify the property to which it relates; and, if the draftsman of the conveyance chooses to identify the property solely by reference to a plan, it is of the utmost importance that he should make use of a plan which is on a scale sufficiently large to make it possible to represent the property and its boundaries in precise detail, giving dimensions and any other features which may be necessary to put beyond doubt the subject matter of the conveyance."
Security Trust Co -v- The Royal Bank of Canada; PC 1976
SJC Construction -v- Sutton London Borough Council [1974] 28 P & CR 200; (1975) 234 EG 363; [1976] RVR 219
1976
CA
Stephenson LJ
Land, Damages Casemap

An appeal was mounted against the decision of the Lands Tribunal to allow the variation of a restrictive covenant under 84(1A)(b) only and not under 84(1A)(a). The tribunal had said that the word 'substantial' required applicants to show: "that the benefit is not of any real importance in either money terms or in having some other advantage" The application of the word "substantial" was "a question of fact and degree having regard to all the circumstances"; and "The question I have asked myself in this case is whether the benefits and advantages to the (covenantee) are of so little weight in relation to what is proposed by the appellants that they can regard as having no real importance." The answer in this case was 'No'. Held: The award was upheld: "the modification of this restrictive covenant clearly resulted in the respondents suffering the loss of a practical benefit of substantial value or advantage. For that substantial loss or disadvantage they were entitled to substantial compensation."
Law of Property Act 1925 84
Copeland Borough Council -v- Secretary of State for the Environment (1976) 31 P&CR 403
1976

Lord Widgery CJ
Land, Damages Casemap

An enforcement notice was served relating to a dwelling house which had been built with a roof covering of the wrong colour. The authority had described the breach of planning control by reference to the construction of the roof, rather than the construction of the house as a whole. Held: This was an error sufficient to require the enforcement notice to be quashed. The character of the development to be considered derives from the whole development, and to construct only a small part would result in something different in character.
Lord Widgery CJ said: “For my part, and in the absence of authority, I would have had no hesitation in saying that in a case of this kind where there is to be new development on land previously undeveloped one ought, subject to any special provisions in the planning permission itself, to treat the operation as single one, and I test it for myself in this way. The purpose of all town and country planning is to preserve amenities and the sensible and attractive lay-out of properties, and if the appellants are right in this case and the grant of a permission of this kind is really the grant of multiple permissions to install brick by brick it would mean that an eccentric land developer could produce most extraordinary results on his land, results which might perfectly well redound to the disadvantage of others, without in any way falling foul of this legislation; he could leave holes in the walls of his house; he could leave half the roof off; he could do all sorts of eccentric things of that kind, and when he was tackled about it by the planning authority he would say: ‘But every brick is in accordance with the plans; at no point have I done anything which the plans did not authorise.’ If it were asked: ‘What about the all the vacant spaces which the plans intended to be filled?’ the answer would be: ‘There is no breach of planning control there. There is nothing done there and if you do nothing you cannot be wrong.’”
Bird and Bird -v- Wakefield Metropolitan Borough Council; 1976
Chang -v- Registrar of Titles (1976) 137 CLR 177
1976

Mason J, Jacob J
Land, Contract Casemap

The court discussed the trusteeship arising on a contract for the sale of land. Mason J: "It has long been established that a vendor of real estate under a valid contract of sale is a trustee of the property sold for the purchaser. However, there has been controversy as to the time when the trust relationship arises and as to the character of that relationship. Lord Eldon considered that a trust arose on execution of the contract (Paine v Meller; Broome v Monck). Plumer M.R. thought that until it is known whether the agreement will be performed the vendor 'is not even in the situation of a constructive trustee; he is only a trustee sub modo, and providing nothing happens to prevent it. It may turn out that the title is not good, or the purchaser may be unable to pay' (Wall v Bright). Lord Hatherley said that the vendor becomes a trustee for the purchaser when the contract is completed, as by payment of the purchase money (Shaw v Foster). Jessel M.R. held that a trust sub modo arises on execution of the contract but that the constructive trust comes into existence when title is made out by the vendor or is accepted by the purchaser (Lysaght v Edwards). Sir George Jessel's view was accepted by the Court of Appeal in Rayner v Preston.
It is accepted that the availability of the remedy of specific performance is essential to the existence of the constructive trust which arises from a contract of sale". Jacob J: "Where there are rights outstanding on both sides, the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the respective parties".
Secretary of State for Education and Science -v- Tameside Metropolitan Borough Council; HL 21-Oct-1976
Berkley -v- Poulett and others [1976] EWCA Civ 1; [1977] 1 EGLR 86; (1977) 241 EG 911
29 Oct 1976
CA
Stamp LJ, Scarman LJ, Goff LJ
Land, Contract Casemap
1 Cites
The court was asked whether some pictures, prints, a statue, and a sundial, each affixed to the land, had become fixtures or had remained chattels. If fixtures, they passed on the conveyance of the land; if chattels they did not. Held: The modern answer to the question whether objects which were originally chattels have become fixtures, that is to say part of the freehold, depends upon the application of two tests: (1) the method and degree of annexation; (2) the object and purpose of the annexation. Here, the paintings had been hung for their better enjoyment, and were not fixtures. Neither the statue nor the sundial were physically attached to the realty, and remained chattels.
Lord Justice Scarman said: "If there is no physical annexation there is no fixture. Quicquid plantatur solo solo cedit. Nevertheless an object, resting on the ground by its own weight alone, can be a fixture, if it be so heavy that there is no need to tie it into a foundation, and if it were put in place to improve the realty. Prima facie, however, an object resting on the ground by its own weight alone is not a fixture. Conversely, an object affixed to realty but capable of being removed without much difficulty may yet be a fixture. Today so great are the technical skills of affixing and removing objects to land or buildings that the second test is more likely than the first to be decisive. Perhaps the enduring significance of the first test is a reminder that there must be some degree of physical annexation before a chattel can be treated as part of the realty. "
Link[s] omitted
Twentieth Century Banking Corporation Ltd -v- Wilkinson; ChD 1977
Shaw -v- Applegate [1977] 1 WLR 970
1977
CA
Buckley LJ, Goff LJ
Land Casemap
1 Cites

There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and damages. The plaintiff appealed a decsion that he had lost the ability to enforce the covenant through delay. Held: The appeal succeeded, but the remedy was limited to damages. The court considered the continuing enforceability of a restrictive covenant.
Buckley LJ said: "The real test, I think, must be whether upon the facts of the particular case the situation has become such that it would be dishonest or unconscionable for the plaintiff, or the person having the rights sought to be enforced, to continue to seek to enforce it." As to Willmott -v- Barber: ‘As I understand that passage, what the judge is there saying is that where a man has got a legal right — as the plaintiffs have in the present case, being legal assignees of the benefit of the covenant binding the defendant — acquiescence on their part will not deprive them of that legal right unless it is of such a nature and in such circumstances that it would really be dishonest or unconscionable of the plaintiffs to set up that right after what has occurred.”
Britford Common, In re [1977] 1 WLR 39; [1977] 1 All ER 532
1977

Land Casemap

Yateley Common, Hampshire, In re [1977] 1 All ER 505; [1977] 1 WLR 840
1977

Land Casemap

Dunton -v- Dover District Council [1977] QB 87
1977

Griffiths J
Land, Nuisance
1 Citers
References to decibels in actions for noise nusance, are not helpful unless compared with everyday sounds to which others can all relate.
Western Bank Ltd -v- Schindler [1977] Ch 1
1977

Lord Justice Scarman, Lord Justice Buckley, Lord Justice Goff
Land, Constitutional Casemap
1 Citers
The mortgagee sought possession in circumstances in which the mortgagor had allowed a life policy, taken as collateral security, to lapse, but where there had been no default under the mortgage itself. The question arose whether the court could exercise the powers conferred by section 36(2) of the Act in a case where no sums being due under the mortgage and there being no default. Held: The Court found it possible to construe section 36 of the Act of 1970 in such a way as to avoid what the court perceived would be an obvious lacuna if the words were given a literal meaning. The section in its terms was enacted in order to deal with problem which had arisen following Caunt; and which had been the subject of examination and recommendation by the Payne Committee. However an insertion by a judge must not be too big, or too much at variance with the language used by the legislature.
Lord Justice Buckley: “If sub-s (1) [of section 36] is read literally, the conditional clause introduced by the words ‘if it appears to the court’ (which I shall refer to as ‘the conditional clause’) appears to restrict the operation of the section to cases in which some sum is due or some default has taken place and remains unremedied when the application comes before the court. This, however, seems to me to lead to a ridiculous result.” The words of the section being unfair and irrational, the court “must therefore investigate whether the section is capable of some other construction” and “Section 36 is an enabling section which empowers the court to inhibit the mortgagee’s right to take possession. It confers a discretionary power on the court to achieve this result. It is, in my judgment, impossible to spell out of it a positive abrogation of an important property right, and, moreover, an abrogation of it only in particular circumstances.”
Lord Justice Scarman saw three ways forward: “The first is to treat the section as having a ‘casus omissus’ which only Parliament can fill. The second . . . is to treat the section as excluding the common law right to possession from mortgages of dwelling houses. The third is to treat the section as giving the court a power to delay making an order in all cases where, upon whatever ground, a mortgagee is seeking possession of a mortgaged dwelling house.” and “Judicial legislation is not an option open to an English judge. Our courts are not required, as are, for instance, the Swiss courts (see the Swiss Civil Code, arts 1 and 2), to declare and insert into legislation rules which the judge would have put there had he been the legislator. But our courts do have the duty of giving effect to the intention of Parliament, if it be possible, even though the process require a strained construction of the language used or the insertion of some words in order to do so; see Luke v Inland Revenue Commissioners [1963] AC 557, per Lord Reid at p.577. The line between judicial legislation, which our law does not permit, and judicial interpretation in a way best designed to give effect to the intention of Parliament is not an easy one to draw. Suffice it to say that before our courts can imply words into an Act the statutory intention must be plain and the insertion not too big, or too much at variance with the language in fact used by the legislature. The courts will strain against having to take the first of the three courses I mentioned; that is to say, leaving unfulfilled the ‘casus omissus’. In the case of this section, is there an acceptable reading which would enable us to give effect to Parliament’s intention within the principle which I think governs the problem?
It would be going too far, in my judgment, to adopt the second course. It would, indeed, be judicial legislation to read a section conferring discretionary powers on the court as abrogating a common law right. I am not prepared to go that far in an attempt to make sense. If one had to go that far, then it would be for the legislature, not the courts, to take the step.”
Lord Justice Goff: Section 36 could not be held, by a side wind, to have abrogated the mortgagee’s proprietary right to take possession: “This would not, I think, be applying the principle of liberal construction to avoid absurdity stated in Luke v Inland Revenue Commissioners [1963] AC 577, but disregarding the statute or overriding it, which as Ungoed-Thomas J. pointed out in In re Maryon-Wilson’s Will Trusts [1968] Ch 268, 282, and in my judgment rightly pointed out, is what the court is not allowed to do.” There were only two courses open to the court: to construe the section as conferring a discretion in all cases; or to construe the section literally and face whatever anomalies or absurdities that produced. He preferred the latter; on the ground that he could not see how any sensible effect could be given to the powers in subsection (2) if there was nothing to be done by the mortgagor which an adjournment, stay, suspension or postponement would enable to be done within a time which the court was required to decide was a reasonable time.
Administration of Justice Act 1970 36
Powell -v- McFarlane; ChD 1977
Buckley -v- Lane Herman and Co [1977] CLY 3143
1977

Land, Professional Negligence, Legal Professions
A solicitor instructed to exchange contracts on a related sale and purchase must achieve simultaneous exchange. If he failed to do so he will be liable in negligence to the client for any losses.
Tito -v- Waddell (No 2); Tito -v-Attorney General; ChD 1977
Williams -v- Burlington Investments [1977] SJ 121
1977

Equity, Land

Chewton Common, In re [1977] 3 All ER 509; [1977] 1 WLR 1242
1977

Land
1 Citers
Red House Farms (Thorndon) Ltd -v- Catchpole; CA 1977
Jelson Ltd -v- Blaby District Council [1977] 1 WLR 1020; (1978) 1 All ER 548
1977
CA
Land Casemap

A strip of land had been originally reserved for a road, and was subsequently sold to the council under a purchase notice. A claim for compensation was made. On appeal the Minister issued a nil certificate on the basis that the correct time at which to consider whether planning permission might reasonably have been expected to be granted was the date of the deemed notice to treat and at that time, after the land on either side had been developed, the land was incapable of development. Held. The Minister was correct. Under the judicial version of the rule permission could be assumed for residential development.
Derby & Co Ltd -v- ITC Pension Trust Ltd; 1977
Berkely -v- Poulett [1977] 1 EGLR 86; [1977] 261 EG 911
1977
CA
Stamp LJ, Scarman LJ
Land, Contract Casemap
1 Citers
The court discussed the duties of a vendor to the property between exchange and completion: "These duties and rights [of a purchaser] arise from the contract of sale and it is because of their existence that the vendor is said to be a constructive trustee, or a trustee sub modo, of the estate for the purchaser from the time when the contract is constituted. But to say that it is the duty of the vendor as trustee for the purchaser to care for the property is to put the cart before the horse and may lead you into error. He is said to be a trustee because of the duties which he has, and the duties do not arise because he is a trustee but because he has agreed to sell the land to the purchaser and the purchaser on tendering the price is entitled to have the contract specifically performed according to its terms. Nor does the relationship in the meantime have all the incidents of the relationship of trustee and cestui que trust. That this is so is sufficiently illustrated by the fact that prima facie the vendor is until the date fixed for the completion entitled to receive and retain the rents and profits and that as from that date the purchaser is bound to pay interest. And you may search the Trustee Act 1925 without obtaining much that is relevant to the relationship of vendor and purchaser. Thus, although the vendor because of his duties to the purchaser is called a trustee, it is wrong to argue that because he is so called he has all the duties of or holds the land on a trust which has all the incidents associated with the relationship of a trustee and his cestui que trust."
Scarman LJ discussed what were the two tests for whether an item became affixed to the land: "(1) the method and degree of annexation; and (2) the object and purpose of the annexation. " and “In other words, a degree of annexation which in earlier time the law would have treated as conclusive may now prove nothing. If the purpose of the annexation be for the better enjoyment of the object itself, it may remain a chattel, not withstanding a high degree of physical annexation. Clearly, however, it remains significant to discover the extent of physical disturbance of the building or the land involved in the removal of the object. If an object cannot be removed without serious damage to, or destruction of, some part of the realty, the case for its having become a fixture is a strong one. The relationship of the two tests to each other requires consideration. If there is no physical annexation there is no fixture. Quicquid plantatur solo solo cedit. Nevertheless, an object, resting on the ground by its own weight alone, can be a fixture, if it is so heavy that there is no need to tie it into a foundation, and if it were put in place to improve the realty. Prima Facie, however, an object resting on the ground by its own weight alone is not a fixture: see Megarry and Wade , p 716. Conversely, an object affixed to realty but capable of being removed without much difficulty may yet be a fixture, if, for example, the purpose of its affixing be that “of creating a beautiful room as a whole” (Neville J in In Re Whaley [1908] 1 Ch 615 at p 619. An in the famous instance of Lord Chesterfield's Settled Estates [1911] 1 Ch 237 Grinling Gibbons carvings, which had been affixed to a suit of rooms 200 years earlier, were held to be fixtures. Today so great are the technical skills of affixing and removing objects to land or buildings that the second test is more likely than the first to be decisive. Perhaps the enduring significance of the first test is a reminder that there must be some degree of physical annexation before a chattel can be treated as part of the realty.”
. . . and the tests, in the case of an item which has been attached to the building in some way other than simply by its own weight, seem to be the purpose of the item and the purpose of the link between the item and the building. If the item viewed objectively, is, intended to be permanent and to afford a lasting improvement to the building, the thing will have become a fixture. If the attachment is temporary and is no more than is necessary for the item to be used and enjoyed, then it will remain a chattel. Some indicators can be identified. For example, if the item is ornamental and the attachment is simply to enable the item to be displayed and enjoyed as an adornment that will often indicate that this item is a chattel. Obvious examples are pictures. But this will not be the result in every case; for example ornamental tiles on the walls of kitchens and bathrooms. The ability to remove an item or its attachment from the building without damaging the fabric of the building is another indicator. The same item may in some areas be a chattel and in others a fixture. For example a cooker will, if free standing and connected to the building only by an electric flex, be a chattel But it may be otherwise if the cooker is a split level cooker with the hob set into a work surface and the oven forming part of one of the cabinets in the kitchen. It must be remembered that in many cases the item being considered may be one that has been bought by the mortgagor on hire purchase, where the ownership of the item remains in the supplier until the instalments have been paid. Holding such items to be fixtures simply because they are housed in a fitted cupboard and linked to the building by an electric cable, and, in cases of washing machines by the necessary plumbing would cause difficulties and such findings should only be made where the intent to effect a permanent improvement in the building is incontrovertible. The type of person who instals or attaches the item to the land can be a further indicator. Thus items installed by a builder, eg the wall tiles will probably be fixtures, whereas items installed by eg a carpet contractor or curtain supplier or by the occupier of the building himself or herself may well not be.
The judge's directions to himself on the law were these: that the primary test whether an item is or is not a fixture is the degree of annexation of the item to the building. He cited Megarry and Wade on Real Property at page 732:
“An article is prima facie a fixture if it has some substantial connection with the land or a building on it” and “A chattel attached to the land or a building on it, in some substantial manner, eg by nails or screws, were prima facie a fixture even if it would not be difficult to remove it. Examples in this category are a fireplace, panelling, wainscot and a conservatory on a brick foundation.”
Gray -v- Wykeham Martin & Goode Unreported, 17 January 1977
17 Jan 1977

Land, Limitation Casemap
1 Citers
Bernstein of Leigh (Baron) -v- Skyview and General Ltd (Summary); QBD 09-Feb-1977
Moreton Cullimore -v- Routledge Unreported, February 11 1977
11 Feb 1977
CA
Lord Denning MR
Land Casemap
1 Citers
Where a property being conveyed was said to be more particularly described or delineated on a plan, the verbal description prevailed but this was only because the court treated the combined expressions as meaning no more than "for the purpose of identification only". Lord Denning MR: "In this case we have the words 'for the purpose of identification only'. Those words seem to me to show quite clearly that the plan is only to be used to look and see roughly where the area is situated and not in any way to define the metes and bounds thereof."
Miller -v- Jackson [1977] 1 QB 966; [1977] 3 All ER 338; [1977] EWCA Civ 6
6 Apr 1977
CA
Geoffrey Lane, Cumming Bruce LJJ, Denning MR
Land, Nuisance Casemap
1 Citers
The activities of a long established cricket club were adjudged to be a nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of cricket balls landing in their gardens. The defendant appealed. Held: A factor to be taken into account was that the plaintiffs had purchased their properties knowing of the club. That could constitute the exceptional circumstances allowing the court to use its discretion not to award an injunction.
Lord Denning MR, dissenting: "In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short . . . [y]et now after these 70 years a judge of the High Court has ordered that they must not play there anymore . . . [h]e has done it at the instance of a newcomer who is no lover of cricket.
This newcomer has built . . . a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket." If the injunction were upheld, cricket would cease in the village and "the young men will turn to other things…" The public interest in the playing of cricket should prevail over the individual interests of the householders, and, instead of the injunction, he awarded £400 for past and future inconvenience.
Chancery Amendment Act 1858 (Lord Cairns' Act)
[ Bailii ]
G & K Ladenbau (UK) Ltd -v- Crawley & De Reya [1978] 1 WLR 266; [1977] 2 All ER 118
25 Apr 1977
QBD
Mocatta J
Land, Professional Negligence, Damages
1 Cites
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when purchasers from their clients later undertook a commons search. In fact the registration was erroneous, but the question took some time to resolve. Held: In the light of the defendants' knowledge about the plantiff intending to develop the land, any loss of profits was an appropriate head of damages including the cost of making good the error. Registration of common rights was conclusive evidence of the matters registered. Evidence was admitted from four solicitors as to best conveyancing practice as to whether commons searches were necessary. If the land is open land, a search of the commons registers should normally be undertaken to check that land is not subject to undisclosed rights of common. The fact that the land was vacant, and that it had previously been in the ownership of a lord of the manor should have alerted the defendants. However, a solicitor should not search in every case, but exercise a discretion.
Commons Registration Act 1965 10
Link[s] omitted
Sovmots Investments Ltd -v- Secretary of State for the Environment; HL 28-Apr-1977
Smith -v- UMB Chrysler [1977] UKHL 7; 1978 SLT 21; [1978] 1 All ER 18; 8 BLR 1; [1978] 1 WLR 165; 1978 SC (HL) 1
9 Nov 1977
HL
Scotland, Land, Contract
Link[s] omitted
Wigginton & Milner Ltd -v- Winster Engineering Ltd; CA 07-Dec-1977
In re Niyazi's Will Trusts [1978] 1 WLR 910
1978

Land Casemap
1 Citers
Terms in older documents could be re-interpreted to accord with current useage.
Ferguson -v- Tennant 1978 SC (HL) 19
1978
HL
Lord Fraser of Tullybelton, Lord Grieve
Scotland, Land Casemap

Pasturage is, in itself, a well-recognised servitude. Lord Grieve said that the number of cattle that may be put on the lands of the servient tenement must not exceed that which is "proper to the dominant" - that, is, that the number that the proprietor of the dominant tenement can support from his own resources.
Laing Homes Ltd -v- Eastleigh Borough Council (1978) 250 EG
1978
LT
E C Strathon FRICS
Land, Damages Casemap

The tribunal considered the compulsory acquisition of land for the construction of a spine road through a housing development, where rule (3) of the Rules had been considered in the context of whether the land held the key to its completion. Held: In so far as the reference land attracted a special value as the key to the completion of the spine road, rule (3) in the section would exclude such special value. Within the terms of rule (3), the reference land possessed the quality of special suitability for building the spine road. The market for such a purpose would be limited. In this case, the special suitability of the reference land for the purpose of building the spine road should not be taken into account because for that purpose there is no market apart from the requirements of Eastleigh or the special needs of Mill Lodge on behalf of Eastleigh"
Land Compensation Act 1961 5
Daulia Ltd -v- Four Millbank Nominees Ltd [1978] 1 Ch 231
1978

Land, Contract Casemap

In a contract the Defendants promised certain properties to whoever first arrived with the requisite draft contract and bankers drafts. The Plaintiffs did. Held: They failed in their claim. It involved a unilateral contract and the Defendants' oral promises was expressly made subject to contract, but the Court decided the dispute by reference to the central consideration that the contract concerned the disposition of an interest in land to which section 40 of the Law of Property Act applied.
Law of Property Act 1925 40
Methuen-Campbell -v- Walters; CA 1978
Laurence -v- Lexcourt Holdings Ltd [1978] 1 WLR 1128; [1978] 2 All ER 810
1978
ChD
Dillon QC
Contract, Land Casemap
1 Citers
The purchasers sought rescission of a 15 year lease of business premises. Unknown to either party, the planning permission restricted their use as offices to a period of no more than two years. Held: There had been a misrepresentation by the lessors which entitled the lessees to rescind the agreement. Dealing with an alternative plea of common mistake, the court followed Solle v Butcher and Grist v Bailey in holding that the lease could be rescinded on the ground that it had been concluded under a mistake which was fundamental. The defendant's failure to make the search which would have disclosed the mistake did not disentitle them from relying on their mistake.
Swordheath Properties Ltd -v- Floyd [1978] 1 WLR 550; [1978] 1 All ER 721
1978

Land, Damages Casemap
1 Cites
1 Citers
The rules relatng to the grant of immediate possession to a landowner as against squatters applied in the County Court just as much as in the High Court. The amount of damages payable by a trespasser on land is ordinarily the letting value of the premises.
In re Turnworth Down Dorset [1978] 1 Ch 251
1978

Oliver J
Land Casemap
1 Citers
The only effect of non-registration of rights of common was to deprive the inhabitants of the benefit of the conclusive presumption furnished by section 10 of the Act and to require them to prove the existence of the rights in question. The land was not deemed to be a village green but did not exclude the possibility that it actually was
Commons Registration Act 1965 10
Cole -v- Rose [1978] 3 All ER 1121
1978

Mervyn Davies QC J
Contract, Land Casemap


The vendor had purported to rescind the contract and retain the deposit, while selling to another purchaser at a higher price. Held. The purchaser was entitled to return of the deposit, because the notice to complete had been ineffective. After referring to Schindler, Mervin Davies said: "With those observations in mind, it seems that one can contemplate an order under s 49(2) only if there are some special circumstances in the particular matter, being circumstances that suggest that it is perhaps unfair or inequitable that the purchaser should lose his deposit. I cannot see any special circumstances in the present case. It is a straightforward case of a contract for sale that was not completed because the purchaser could not find the purchase price in time."
Law of Property act 1925 49(2)
Hesperides Hotels Ltd -v- Aegean Turkish Holidays Ltd, Muftizahde; HL 1978
Appleby -v- Ireland [1978] RVR 156
1978

Land, Damages Casemap

"the multiplier that has come to be regarded as fair and reasonable as between a dispossessed trader and an acquiring authority is 3YP of ascertained net profit, assuming the business to have been trading at a steady level of profitability and from its own freehold premises".
Woolfson -v- Strathclyde Regional Council; HL 15-Feb-1978
Allen and Another -v- Greenwood and Another
16 Oct 1978
CA
Buckley, Orr and Goff L.JJ
Land, Limitation Casemap

cw Easement - Prescription - Right to light - Greenhouse - Claim for sufficient light to cultivate plants - Whether specially high amount of light - Whether right to extraordinary amount of light capable of being acquired by prescription - Whether right is to light for illumination only or capable of including sun's warmth
The claimants greenhouse had been in the same position for over 20 years. They complained about work on the defendant neighbour's land which interfered with the rights of light they had acquired. Held: The Act set the standard for the easement acquired by prescription as the extent required for the use which had been made. The greenhouse required extra light, and that was the extent of the easement acquired.
Prescription Act 1832 3
Link[s] omitted
Pascoe -v- Turner; CA 01-Dec-1978
Jackson -v- Bishop (1979) 48 P &CR 57
1979
CA
Bridge LJ
Land, Contract Casemap
1 Citers
Where the definition of the parcels in a conveyance or transfer is not clear, then the court must have recourse to extrinsic evidence, and in particular to the physical features on the ground: "It seems to me that the question is one which must depend on the application of the plan to the physical features on the ground, to see which out of two possible constructions seems to give the more sensible result."
Dicconson Holdings Ltd -v- St Helens Metropolitan Borough (1979) 249 EG 1075
1979

Land Casemap
1 Citers
Suffolk County Council -v- Mason; HL 1979
Leonidis -v- Thames Water Authority (1979) 251 EG 669
1979

Parker J
Land, Damages
1 Citers
The court considered the liability of an authority executing works under authority of the Act for damages for disturbance: “if a private individual had done what the defendants did in the present case the claimant would have had a good cause of action ... .”.
Public Health Act 1936
Regina -v- Surrey County Council, ex parte Send Parish Council; 1979
Melwood Units Pty Ltd v- Commissioner of Main Roads [1979] AC 426
1979
PC
Lord Russell of Killowen
Land, Commonwealth, Damages Casemap
1 Citers
The board considered the compensation payable on the compulsory purchase of land for the purpose of an expressway between Brisbane and Combabah. At the date of compulsory acquisition the project had reached the stage where it was reasonable to assume that a strip of the appellant’s land would be acquired for the expressway. The Land Appeal Court assessed compensation on the basis that the value of the land was to be arrived at by adjusting the price paid by the appellant for it in the light of the proposal. The Full Court of the Supreme Court of Queensland took the view that the question of the status and effect of the expressway proposal raised issues of fact upon the valuation but no question of law. Held. A failure to properly apply the Point Gourde principle did disclose a question of law. The Pointe Gourde principle is part of the "common law deriving as a matter of principle from the nature of compensation for resumption or compulsory acquisition." The principle operates both with respect to the consequential enhancement and adverse effect of a scheme for public works upon resumed land. A resuming authority cannot by its project of resumption destroy the potential for the highest and best use of the land and then resume land severing it from part of the previous holding, on the basis that the destroyed potential never existed. The principle remains applicable where planning permission is refused for development for the highest and best use of the whole of the land, because of the apprehended use of part of the land for a public purpose.
Lord Russell of Killowen said: "Under the principle in Point (sic) Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] A.C. 565 the landowner cannot claim compensation to the extent to which the value of his land is enhanced by the very scheme of which the resumption forms an integral part: that principle in their Lordships' opinion operates also in reverse. A resuming authority cannot by its project of resumption destroy the potential of the [land to be resumed] and then resume and sever on the basis that the destroyed potential had never existed."
Universal Corporation -v- Five Ways Properties Limited [1979] All ER 552
1979
CA
Buckley LJ, Eveleigh LJ
Contract, Land Casemap

1 Citers
The purchaser had failed to complete, notwithstanding the service of a notice to complete. The purchaser a Nigerian company suffered a delay in obtaining funds. There was no attempt to exclude section 49(2) and the purchaser applied under that section for the repayment of the deposit. Held: The application for a strike out failed. The court considered the jurisdiction to order the return of a deposit paid under a contract for the sale of land.
Buckley LJ said: "a discretion which must, of course, be exercised judicially, and with regard to all relevant considerations, including the very important consideration of the terms of the contract into which the parties have chosen to enter . . . the jurisdiction is one to be exercised where the justice of case requires. In this connection I take the word "justice" to be used in a wide sense, indicating that repayment must be ordered in any circumstances which make this the fairest course between the two parties." and "I prefer to the judge's approach to the construction of this subsection the approach of Megarry V-C who has expressed the view that the jurisdiction is one to be exercised where the justice of the case requires: see what he said in Schindler v Pigault. In this connection I take the word 'justice' to be used in a wide sense, indicating that repayment must be ordered in any circumstances which makes this the fairest course between the two parties. It is, I think, relevant in the present case that condition 22 of the national conditions does not confer on the vendor an unqualified right to forfeit a deposit. The words in para 3 of the conditions are ". . the purchaser's deposit may be forfeited (unless the court otherwise directs)". This formula may well have been adopted with the terms of section 49(2) in mind. However that may be, in my view the language makes clear that the vendor does not have an absolute right to retain the deposit paid by a purchaser who is in default under the condition."
Eveleigh LJ said that the limitation applied by the judge was not "plain and obvious".
Law of Property Act 1925 49(2)
Singh -v- Nazeer [1979] Ch 474
1979

Sir Robert Megarry VC
Land, Litigation Practice Casemap

Once an order for specific performance has been made by the court, the parties have put it into the hands of the court as to how the contract is to be carried out. The provisions of the order regulate how the contract is to be carried out. The completion notice procedure available under the contract is no longer intended to be applicable: the working out, variation or cancellation of the order is a matter for the court on application made to it .
Sharpe Re, Ex parte Trustee of the Bankrupt -v- Sharpe; ChD 30-Jul-1979
MEPC Ltd -v- Christian-Edwards; HL 08-Nov-1979
Domb and Another -v- Isoz [1980] 2 WLR 565; [1980] Ch 548; [1980] 1 All ER 942
29 Nov 1979
CA
Buckley, Bridge and Templeman LJJ
Legal Professions, Contract, Land, Agency Casemap
1 Cites
In a chain of conveyancing transactions, a solicitor sent his contract and deposit to his vendor's solicitor, asking him to hold it to his order pending exchange. On the next day, that vendor's solicitors agreed to an exchange of contracts over the telephone on his own purchase, but his client then told him not to proceed. The solicitor did not deliver the contract on that purchase, and claimed that under the postal rule, exchange had not taken place. The purchaser appealed a finding that there was no contract. Held: A contract had been created. The solicitor had his client's authority to exchange in this manner, and the contract was made at the time of the agreement on the telephone. The contract could come into existence before the posting of the second part of the contract, which would be the normal rule for postal acceptance.
Buckley LJ: "the essential characteristic of exchange of contracts is that each party shall have such a document signed by the other party in his possession or control so that, at his own need, he can have the document available for his own use. Exchange of a written contract for sale is in my judgment effected so soon as each part of the contract, signed by the vendor or the purchaser as the case may be, is in the actual or constructive possession of the other party or of his solicitor. Such possession need not be actual or physical possession; possession by an agent of the party or of his solicitor, in such circumstances that the party or solicitor in question has control over the document and can at any time procure its actual physical possession will, in my opinion, suffice. In such a case the possession of the agent is the possession of the principal. A party's solicitor employed to act in respect of such a contract has, subject to express instructions, implied authority to effect exchange of contracts and so to make the bargain binding upon his client. This he can, in my judgment, do by any method which is effectual to constitute exchange."
BRIDGE LJ: "A solicitor acting for a vendor or a purchaser who holds his client's signed part of the contract has his client's ostensible authority to effect exchange of contracts."
Templeman LJ: "In my judgment a client impliedly authorises, and ostensibly authorises, his solicitor to effect exchange of contracts in such manner and by such agents as the solicitor may think fit. The client confers power to exchange, but is not interested in the machinery or method of exchange, which is a matter for the solicitor and the general law."
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