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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Land - From: 1985 To: 1989

This page lists 78 cases, and was prepared on 02 April 2018.

 
Singh v Singh [1985] Fam LR 97
1985

Anthony Lincoln J
Equity, Land
A husband resisted his former wife's claim under the section against his brother, her brother-in-law. He asserted, with a view to deceiving both his wife and the Court, that his brother, who held the fee of a house, did not hold any share beneficially for the husband but held entirely for himself, the brother. That would have denied the wife any beneficial interest in the house. He fell out with his brother and adjusted his stance in the related proceedings that were heard at the same time to assert instead that the brother held in part beneficially for him, the husband. Held: The court considered refusing relief to the husband on the "clean hands" principle but had decided not to do so, because (i) that to do so would harm the former wife, who was not only innocent of the husband's fraud but was its intended victim and who could recover only if the husband succeeded against his brother and (ii) that the husband had made a clean breast of the falsity of his assertions ahead of the hearings.
Law of Property Act 1925 30
1 Citers


 
Auerbach v Beck (1985) 6 NSWLR 424
1985

Powell J
Commonwealth, Land
(New South Wales) An easement does not confer exclusive possession to land. An easement may include a right to extract smells from cooking. As to easements of necessity; Powell J said: "it is open to the court to imply into a conveyance or demise the grant of such rights as are absolutely necessary to the enjoyment of the subject matter of the conveyance or demise, or of such rights as are reasonably necessary for the use and enjoyment, in the way contemplated by the parties in the conveyance or demise, of the subject matter of the conveyance or demise."
1 Citers



 
 Bentray Investments Limited v Venner Time Switches Limited; ChD 1985 - [1985] 1 EGLR 39
 
In re West Anstey Common [1985] 1 Ch 329
1985

Slade LJ
Land
Though an enquiry as to whether land is a green can only be initiated by an application for the addition of the claimed green to the register by some individual, the enquiry should not be seen as civil litigation between the applicant and any objectors: the public also clearly has an interest in the outcome.
1 Citers



 
 Celsteel Ltd v Alton House Holdings Ltd; ChD 1985 - [1985] 1 WLR 204
 
In Re Pittortou (a bankrupt) [1985] All ER 285
1985
ChD
Scott J
Equity, Land, Insolvency
H and W charged the property to secure the H's overdrawn bank account. The account was used both for his business and for payment of expenses relating to the matrimonial home. H was adjudicated bankrupt. W sought her equity to be exonerated from H's debt. Held: Scott J said that where payments had been made for the joint benefit of the household, they must be paid from the net proceeds before division. However an equity of exoneration applied to payments made purely for business purposes and for H's sole benefit, and these were to be deducted only from H's share.
Exoneration depended on the presumed intention of the parties. To apply, it would be necessary to demonstrate that (a) the spouse joined in a charge over jointly owned property; (b) the spouse did so for the purposes of the bankrupt; and (c) the money must have been borrowed and used for the bankrupt's sole benefit.
The joint owner who is effectively in the position of a surety for the other joint owner is not only entitled to be indemnified by the other joint owner in relation to the relevant debt but the right to an indemnity carries with it a proprietary right over the indemnifying party's share in the property. Thus, the party with the benefit of an equity of exoneration has not only a personal claim but is also a secured creditor in relation to that claim.
The court set out a definition of an equity of exoneration: "if the property of a married woman is mortgaged or charged in order to raise money for the payment of her husband's debts, or otherwise for his benefit, it is presumed, in the absence of showing an intention to the contrary, that she meant to charge her property merely by way of security, and in such case, she is in the position of a surety, and is entitled to be indemnified by the husband, and to throw the debt primarily on his estate to the exoneration of her own."
"It is, I think, clear that the effect of the equity of exoneration in a case such as this is indeed to enhance the proprietary interest of the surety/joint mortgagor and not simply to give the surety a personal right to an indemnity from the debtor who is the other joint mortgagor."
1 Cites

1 Citers


 
In Re Alton Corporation [1985] BCLC 27
1985

Robert Megarry VC
Land, Equity
Sir Robert Megarry V-C, said in relation to a loan accompanied by the deposit of title deeds: "I have to remember that the basis of an equitable mortgage is the making of an agreement to create a mortgage, with the deposit of the land certificate and, since Steadman v. Steadman [1976] AC 536 . . probably the paying of the money as well, ranking as sufficient acts of part performance to support even the purely oral transaction. But some contract there must be."
1 Cites

1 Citers


 
Alpenstow Ltd v Regalian Properties plc [1985] 1 WLR 721
1985
ChD
Nourse J
Contract, Land
The parties agreed in writing for the sale of land, the agreement contained a right of pre-emption. In the event of the owner wishing to sell it was to offer to sell a share in the property by notice. Within 28 days of the notice, the grantee was to accept the offer "subject to contract". Within seven days thereafter a draft contract was to be submitted; the draft was to be approved within 28 days, subject to any amendment reasonably required, and contracts were to be exchanged seven days thereafter. Held: The agreement was binding. There was an incompatibility between the freedom to withdraw from the transaction which the words "subject to contract" suggested, and the duty to submit a contract and to exchange it within a particular timetable.
1 Citers


 
Paddington Building Society v Mendelsohn (1985) 50 P & CR 244
1985


Land

1 Citers


 
Wrotham Park Settled Estates v Maclean Homes (North London) Unreported, February 1985
1 Feb 1985
ChD
Mervin Davies J
Land, Damages

1 Citers


 
Rompelman v Minister van Financien (Judgment) C-268/83; [1985] ECR I-655
14 Feb 1985
ECJ

European, VAT, Land
A trader who decided to acquire property for letting could claim repayment of VAT on the cost of a right to acquire a building which had not yet been constructed, let alone tenanted.
1 Cites

1 Citers


 
Rance v Elvin (1985) 50 P&CR 9; [1985] EWCA Civ 7
14 Feb 1985
CA
Browne-Wilkinson, Griffiths LJ, Sir George Waller
Land, Utilities
The plaintiff complained that he had an easement over the defendants land for the supply of water, including the right to connect into the mains on the defendant's land. The defendant said that the right was only to connect to the mains directly. Held: There was a crucial distinction between the right to a supply of water; and a right to an uninterrupted passage of water. A right of the passage of water through the service connection serving the property was not a right to be supplied with water by the servient owner at his expense, but to the uninterrupted passage of water and no more. It confers no right to insist upon the servient owner allowing water to enter his pipes. If, however, water does reach the pipes by any means whatever, that water must be permitted to pass through the pipes on the servient land so as to reach the dominant land. The servient owner is not bound to ensure that any water does reach the system, but if it does he cannot prevent its onward passage to the dominant tenement without being liable for action for interference with the easement.
1 Cites

1 Citers

[ Bailii ]
 
Bristol and West Building Society v Henning [1985] CLY 2950; [1985] 2 All ER 606; [1985] EWCA Civ 6; [1985] 1 WLR 778
2 Apr 1985
CA

Land, Equity

1 Citers

[ Bailii ]
 
Midland Bank Plc v Dobson [1986] 1 FLR 171
12 Jul 1985
CA

Land, Trusts
The trial judge had been entitled to find a common intention constructive trust from evidence which he accepted that the parties treated the house as "our house" and had a "principle of sharing everything". Although the judge should approach such direct evidence with caution, if he does accept such evidence the necessary common intention is proved.
1 Citers


 
Goodman v Gallant [1986] Fam 106; [1985] EWCA Civ 15; [1986] 1 FLR 513; [1986] 2 WLR 236
30 Oct 1985
CA
Slade, Purchase LJJ, Sir Roualeyn Cumming-Bruce
Trusts, Land
The court reviewed the conflicting authorities with regard to the creation of trusts and held that the overwhelming preponderance of authority was that, in the absence of any claim for rectification or rescission, provisions in a conveyance declaring that the plaintiff and the defendant were to hold the proceeds of sale of the property "upon trust for themselves as joint tenants" concludes the question of the respective beneficial interests of the two parties in so far as that declaration of trust, on its true construction, exhaustively declares the beneficial interests. Severance of a beneficial joint tenancy results in a beneficial tenancy in common in equal shares.
Lord Justice Slade said: "In a case where the legal estate in property is conveyed to two or more persons as joint tenants, but neither the conveyance nor any other written document contains any express declaration of trust concerning the beneficial interests in the property (as would be required for an express declaration of this nature by virtue of s 53(1)(b) of the Law of Property Act 1925), the way is open for persons claiming a beneficial interest in it or its proceeds of sale to rely on the doctrine of 'resulting, implied or constructive trusts' (see s 53(2) of the Law of Property Act 1925). In particular, in a case such as that, a person who claims to have contributed to the purchase price of the property which stands in the name of himself and another can rely on the well-known presumption of equity that a person who has contributed a share of the purchase price of property is entitled to a corresponding proportionate beneficial interest in the property by way of implied or resulting trust (see, for example, Pettitt v Pettitt [1970] AC 777 at 813-814, per Lord Upjohn). . . ."
Trustee Act 1925
1 Cites

1 Citers

[ Bailii ]
 
Bank of Scotland v Grimes [1986] 1 QB 1179
1986
CA
Griffiths LJ
Land
The court considered the combined effect of both sections. Griffiths LJ said: "It is the intention of both sections to give a measure of relief to those people who find themselves in temporary financial difficulties, unable to meet their commitments under their mortgages and in danger of losing their homes."
Administration of Justice Act 1970 36 - Administration of Justice Act 1973 8
1 Citers


 
Price v Bouch (1986) 53 P & CR 257; [1986] 2 EGLR 179
1986

Millett J
Land, Contract
The power to approve building plans on an estate had been passed to a committee of all estate owners. The plaintiff said that a term should be implied to say that approval should not be unreasonably withheld. Held: A term that consent would not unreasonably be withheld should be implied when necessary to uphold the purpose (or efficacy) of the contract under which a requirement for consent arose according to the circumstances. The court court not review the reasonableness of the committee's decision. However: "It was conceded that the committee had a duty to inspect and consider any application submitted to them, to reach a decision themselves and not to delegate it to others, and to act honestly and in good faith and not for some improper or ulterior purpose. It was also accepted that, if the committee took into account irrelevant considerations or failed to take into account relevant considerations, or reached a perverse decision such that no reasonable committee could possibly reach, then their decision could be impugned, for it would be ultra vires. This, however, was not enough for the plaintiffs. They insisted that the committee must act reasonably and that they must give reasons for their decision, so that it could, if necessary, be challenged, when the court would adjudicate and decide, in the light of the evidence, whether those reasons were justified.
. . . In my judgment, the mutual covenantors are equally bound by the decision of the committee, whether it be a decision to grant or refuse approval, and they are so bound, provided only that it is given honestly and in good faith and not for some improper purposes. Where the required consent is that of an individual who is free to consult his own interests exclusively, a provision that such consent must not be unreasonably refused is often included in order to prevent consent being withheld arbitrarily, or capriciously, or from improper motives. If that is the only effect of including such a provision, its implication in the present case is unnecessary . . ."
1 Citers


 
Abbey Homesteads (Developments) Limited v Northamptonshire County Council [1986] 1EGLR 24
1986
CA
Parker LJ, Lawton LJ, Nourse LJ
Land
Clause 1 of an agreement between a company and the District Council required that the land should be sold subject to the conditions restricting and regulating the development. A clause provided "An area of 1.3 hectares adjacent to the playing field and amenity open space areas shall be reserved for school purposes." Held: The paragraph was a restrictive covenant running with the land. Parker LJ: "It is said to be positive because it involved a positive obligation to define the area and reserve it. I have had some difficulty in following this argument and I reject it without hesitation. One only has to ask the question: 'were the respondents free to build residential houses on the land?' to get the answer: 'No they were not!' If that is not restrictive I do not know what is." Lawton LJ concluded that on a natural reading of the agreement the developers had covenanted with the District Council for the benefit of the land that 1.3 hectares should be not used other than for school purposes. He said that that covenant was just as restrictive as the seminal one in Tulk v Moxhay (1848) 2 Ph 774. Nourse LJ considered whether the parties intended that the term of the agreement should create a restrictive covenant whose burden was to run with the land or did they intend that its obligation should exist only in contract. He concluded that it was clear that it should run with the land and that, in the terms of the agreement, the land was to be subject to conditions and restrictions which regulated the development. He posed this question: "How then can it be said that such of those conditions as are negative in substance were not intended to run with the land, but to exist only in contract?"
1 Cites

1 Citers


 
Kingsnorth Finance Co Ltd v Tizard [1986] 2 All ER 559; [1986] 1 WLR 783
1986
ChD
Finlay QC
Land, Equity
The marriage between the defendants had broken down, but the wife still visited the house regularly, staying and caring for the children when the husband was away. The house was held in his sole name. He charged it to the plaintiffs, who now sought possession. The wife asserted an equitable interest, as a person in possession. Held: The husband had concealed her presence from the lender at the time of the charge. Nevertheless, occupation under the section did not have to be exclusive or continuous. It was not negatived by repeated or even regular absences. The wife was in the house almost every day. The presence of the children should have put the surveyor on inquiry, and knowledge of her presence was to be imputed to the lender who therefore took their charge subject to her rights. Once the surveyor came to be aware that the husband was married, he was under a duty to make appropriate enquiries. The husband's attempts to hide her could not be used by the bank to defeat her claim. What would be reasonable enquiries will depend on the circumstances. The court attempted to equate inquiry in unregistered conveyancing with that expected in registered conveyancing as a result of the decision in Boland.
Law of Property Act 1925 199(1)(ii)(a)
1 Cites


 
Regina v Doncaster Metropolitan Borough Council ex parte Braim (1987) 85 LGR 233; (1986) 57 P & C R 1
1986

McCullough J
Land
The court considered whether the lease of part of Doncaster Common (not registered as such) fell within section 123(2A) of the 1972 Act. Held: For over a century the public had, as of right, used Doncaster Common for what could be conveniently termed recreation. Even if the public's use depended upon a bare licence, the Council would be obliged to comply with the section, unless reasonable notice of termination was given and had expired.
McCullough J said: "One further point remains. What quality of user 'for purposes of public recreation' is required before the land is 'open space' for the purposes of Section 123 (2A) of the Local Government Act 1972 as amended [which is a like provision to Section 122 (2A) in relation to disposal]? Mr Whybrow contends that it must be as of right, ie that user under a bare licence will not suffice. He suggests that any other construction would be absurd and inconvenient. I do not agree. Section 123 (2A) appears to have been enacted to protect the interests of those lawfully using open spaces. A bare licensee has no interest in land, but so long as his licence exists he has something which he can enjoy. It can only be brought to an end on giving him reasonable notice. In many cases such notice need only be very short, but it is possible to envisage circumstances in which a significant period would be required. Where a licence has been given, there is no hardship or absurdity in a council having to choose between postponing its disposal of the land until such notice has been given and expired and, alternatively, advertising the intended disposal in the way required."
Commons Registration Act 1965 1(2)(a) - Local Government Act 1972 123(2A)
1 Citers


 
Carr-Saunders v Dick McNeill Associates [1986] 2 All ER 888; [1986] 1 WLR 922
1986

Millett J
Land, Damages
The claim was for interference with the plaintiff's right to light. Held: There is a need to approach infringements of easements of light with flexibility. The plaintiff's subjective views as to the loss of light were not to the point. When deciding upon an appropriate award in relation to the notional 'reasonable sum' or 'fair figure' for the defendant to pay, regard was to be had to the bargaining position of the parties in order to arrive at a price which would have been likely to have been negotiated as the reasonable price of a licence for the action taken by the defendant which constituted the invasion of the claimant's rights. As between claims in contract or in tort, there is no reason for any difference of approach when awarding damages in respect of wrongful interference by a defendant with the use and enjoyment of the claimant's land. The court having been shown daylight contour plans by both parties' expert witnesses: "the conventional fifty-fifty rule by which a room may be regarded as adequately lit for all ordinary purposes if 50% or more of its area receives not less than one lumen of light at table level." When dismissing an argument that recently erected internal walls should be disregarded when determining whether there had been an actionable infringement: "I reject this approach. It applies the fifty-fifty rule rigidly as if it were a rule of law, and not (as it is) as merely a useful guide to be adopted or discarded according to the circumstances. The fifty-fifty rule is not, in my judgment, to be applied without any regard to the shape and size of the room or the disposition of the light within the room to which it is applied."
1 Cites

1 Citers


 
Deen v Andrews [1986] 1 EGLR 262; (1986) 52 P&CR 17
1986

Hirst J
Land
Land was sold. The parties disputed whether a greenhouse was included. Held: It was a large greenhouse consisting of a sectional frame bolted to a large concrete base. 'Building' was to be given the meaning ascribed by s62 of the 1925 Act. The greenhouse was not sufficiently affixed but rested by its own weight on the land.
Law of Property Act 1925
1 Cites

1 Citers


 
Cryer v Scott Brothers Sunbury Ltd (1986) P & CR 183
1986

Waite J
Land, Contract
A covenant had been taken on the sale of building land to require all building plans to be submitted to the transferors for their approval before building work was commenced. Held: There was an implication that the transferors would not withhold approval unreasonably, in which context the members of the court referred to withholding approval arbitrarily or capriciously.
1 Citers



 
 Gomba Holdings v Homan; 1986 - [1986] 1 WLR 1301
 
Shears Court (West Mersea) Management Company Ltd v Essex County Council [1986] 85 LGR 479
1986
ChD
Prosser QC
Local Government, Land
Residents claimed a right to use a way over the plaintiff's land as access to a beach. The County Council after representation by the residents instituted proceedings under the 1981 Act having concluded that there was a public right of way. Meanwhile the plaintiff landowner issued a writ seeking a declaration that no public footpath existed over its land. The County Council sought to have the writ struck out. Held:- "There is nothing in these cases which supports the contention that once the procedure of the Act of 1981 is under way but not yet completed there is no right to bring a question concerning the alleged right of way before the court. That such an action may be stayed is one thing, but to say that it should be struck out is entirely without foundation." He therefore declined to strike it out but ordered the proceedings under it to be stayed pending resolution of the local authority's enquiries and determinations under the 1981 Act.
Wildlife and Countryside Act 1981 53
1 Citers



 
 Malayan Credit Ltd v Jack Chia-MPH Ltd; PC 1986 - [1986] 1 AC 549
 
Auerbach v Beck (1986) 6 NSWLR 454
1986


Commonwealth, Land
(New South Wales Court of Appeal) Affirmed
1 Cites



 
 Enfield London Borough Council v McKeon; CA 1986 - [1986] 1 WLR 1007
 
Bretherton v Paton [1986] 1 EGLR 172; (1986) 278 EG 615
1986
CA

Land, Landlord and Tenant
The parties intended to sell and buy a property. The defendant was allowed into possession pending the arrangement of a mortgage and exchange of contracts. The sale fell through and the owner sought possession. The defendant had paid outgoings and a small amount of rent and claimed a tenancy following Street v Mountford. Held: The court refused the owner's appeal against the finding that a tenancy had been created. There existed an enforceable contract giving exclusive possession for a rent for a periodic term. The possibility of a contract for the sale of the property was not enough to displace the found intention to create a tenancy.

 
Hertfordshire County Council v Bolden Times, 09 December 1986
9 Dec 1986


Land
A court may allow a de minimis incursion over a public right of way.
1 Citers


 
Scott v Martin [1987] 1 WLR 841
1987


Land, Contract
When construing a land contract, the parties should not readily be assumed to have intended to act in breach of planning requirements
1 Citers


 
Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [1987] 1 AC 114
1987
PC
Lord Templeman
Land, Commonwealth, Estoppel
An agreement in principle was marked "subject to contract". The Government would acquire some flats owned the plaintiff Group of companies in return for the Government granting, inter alia, a lease to the Group of some Crown lands. The Government was allowed to and did take possession of the flats and spent money upon them and moved some civil servants into them, the Crown accordingly disposing of the premises where those civil servants had previously resided. On the other side of the bargain, the Government allowed the Group to enter the Crown land and to demolish buildings upon it. However, the requisite forms of documents were never executed Held: Lord Templeman said: "The government acted in the hope that a voluntary agreement in principle expressly made 'subject to contract' and therefore not binding, would eventually be followed by the achievement of legal relationships in the form of grants and transfers of property. It is possible but unlikely that in circumstances at present unforeseeable a party to negotiations set out in a document expressed to be 'subject to contract' would be able to satisfy the court that the parties had subsequently agreed to convert the document into a contract or that some form of estoppel had arisen to prevent both parties from refusing to proceed with the transactions envisaged by the document."
1 Cites

1 Citers



 
 Knibb and another v National Coal Board; CA 1987 - [1987] 1 QB 906

 
 Martin v Martin; 1987 - [1987] P & CR 238
 
BP Petroleum Developments Ltd v Ryder [1987] 2 EGLR 233
1987


Land, Damages
Compensation was made on the basis of an increase in value from £40 per annum per acre to £45 for the rights over the additional land sought by the special purchaser, the increase being made "for him to be certain that he will acquire the rights he seeks".
1 Citers


 
Hirst and Agu v Chief Constable of West Yorkshire (1987) 85 Cr App R 143
1987
QBD
Glidewell LJ
Crime, Land
The defendants were arrested after distributing leaflets outside a furriers, and appealed against convictions for obstructing the highway. Held: The appeals succeeded. In deciding whether there was a lawful excuse for a technical obstruction of the highway, the Court rejected the test that a use of the highway which was not incidental to passing along it could not give rise to a lawful excuse, and applied the test whether the use of the highway (even though not incidental to passage) was reasonable or not.
Glidewell LJ said: "As counsel pointed out to us in argument, if that is not right, there are a variety of activities which quite commonly go on in the street which may well be the subject of prosecution under section 137. For instance, what is now relatively commonplace, at least in London and large cities, distributing advertising material or free periodicals outside stations, when people are arriving in the morning. Clearly, that is an obstruction; clearly, it is not incidental to passage up and down the street because the distributors are virtually stationary. The question must be: is it a reasonable use of the highway or not? In my judgment that is a question that arises. It may be decided that if the activity grows to an extent that it is unreasonable by reason of the space occupied or the duration of time for which it goes on that an offence would be committed, but it is a matter on the facts for the magistrates. magistrates, in my view.
To take another even more mundane example, suppose two friends meet in the street, not having seen each other for some time, and stop to discuss their holidays and are more or less stationary for a quarter of an hour or 20 minutes. Obviously, they may well cause an obstruction to others passing by. What they are discussing has nothing to do with passing or re-passing in the street. They could just as well have the conversation at the home of one or other of them or in a coffee shop nearby. Is it to be said that they are guilty of an offence and the reasonableness of what they are doing is not in issue? In my judgment it cannot be said.
Some activities which commonly go on in the street are covered by statute, for instance, the holding of markets or street trading, and thus they are lawful activities because they are lawfully permitted within the meaning of the section. That is lawful authority. But many are not and the question thus is (to follow Lord Parker’s dictum): have the prosecution proved in such cases that the defendant was obstructing the highway without lawful excuse? That question is to be answered by deciding whether the activity in which the defendant was engaged was or was not a reasonable use of the highway.
I emphasise that for there to be a lawful excuse for what would otherwise be an obstruction of the highway, the activity in which the person causing the obstruction is engaged must itself be inherently lawful. If it is not, the question whether it is reasonable does not arise. So an obstruction of the highway caused by unlawful picketing in pursuance of a trade dispute cannot be said to be an activity for which there is a lawful excuse. But in this case it is not suggested that the activity itself - distributing pamphlets an displaying banners in opposition to the wearing of animal furs as garments - was itself unlawful."
Highways Act 1980 137(1)
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1 Citers


 
MRA Engineering Ltd v Trimster Co Ltd (1987) 56 P.& C.R. 1
1987
CA
Dillon LJ
Land
The conveyancing process had left a house in Dorking without any access to the public highway otherwise than by public footpaths to its side and rear. The question was whether a vehicular way over land which had been conveyed to the defendants had been impliedly reserved for the house. The County Court judge had concluded on the evidence that, while it might be very inconvenient not to be able to access the house by car, it would not be said that the absence of vehicular access rendered it unusable "in the ordinary sense of the word". Held: It was not practicable to explore the presumed intention of the parties at the relevant time. Dillon LJ said: "It is of course well established that a way of necessity may arise by implied reservation as well as by implied grant. The law as to ways of necessity is in some respects archaic, and it may be that it was time that it was given closer consideration as against modern circumstances. As matters stand, however, there is a considerable difference between a way of necessity and a way which is implied to give effect to the presumed intention of the parties."
1 Citers


 
Kern Corporation Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164
1987

Deane J
Land, Commonwealth
(High Court of Australia) The court discussed the status of the owner of land between exchange and completion on a sale: "it is both inaccurate and misleading to speak of the unpaid vendor under an uncompleted contract as a trustee for the purchaser . . [T]he ordinary unpaid vendor of land is not a trustee of the land for the purchaser. Nor is it accurate to refer to such a vendor as a 'trustee sub modo' unless the disarming mystique of the added Latin is treated as a warrant for essential misdescription"
1 Citers


 
Stannard v Issa [1987] AC 175
1987
PC

Commonwealth, Land
(Jamaica) The landowners proposed to erect six blocks providing some 40 dwellings, and sought variation of a restrictive covenant to allow this. The provsion as to the variation of restrictive covenants was whether there were: "practical benefits sufficient in nature or extent to justify the continued existence of (the restriction)". The area was a "peaceful seaside enclave of a family nature". The judge had dismissed the application to modify the covenants, but this was reversed by the Court of Appeal, on the grounds that the judge should have taken into account the potentially damaging developments which could have been carried out without breaching the covenants. Held: The Court of Appeal's approach was criticised: "Given any set of restrictions it is not usually difficult to conjure up colourful or hypothetical examples of things which could be done within the framework of the covenants as they stand and which, if done, would substantially repair or defeat the purpose for which the covenants were imposed, but that is not an exercise which the court is enjoined by the section to undertake. What the court exercising this jurisdiction is enjoined to do is to consider and evaluate the practical benefits served by the restrictions. The purpose of these restrictions is obvious on their face. It was to preserve the privacy of each purchaser's plot and the quality of the totality of the sub-divisions by restricting housing density, by regulating commercial activity and providing a lower cost limit intended to ensure good quality development. Whether or not the covenants as drawn are sufficiently specific to achieve all these purposes in the face of a really determined attack by somebody intent on disturbing the peace of the neighbourhood is really immaterial. The undisputed evidence was that in fact all those plots which had been built on had in fact been developed by the erection of single storey private dwellings. It was the trial judge's opinion, after a view, that the land formed a peaceful seaside enclave of a family nature. That was the actuality and, with respect to them, the majority of the Court of Appeal, in positing the nightmare of a complex of medical centres or six-storey castles covering the entirety of the sub-divided lots, were ignoring altogether the practical effects of the restrictions and engaging in unnecessary flights of imagination in order to test whether the original intention of the restrictions was capable of achievements in all circumstances. In doing so they were, in their Lordships judgment, asking themselves the wrong question. The question is not "what was the original intention of the restriction and is it still being achieved?" but "does the restriction achieve some practical benefit, and if so, is it a benefit of sufficient weight to justify the continuance of the restrictions without modification?"
1 Citers


 
National Trust v White [1987] 1 WLR 907
1987
ChD
Warner J
Land
Warner J discussed the cases of Cooke v Ingram and Pettey v Parsons concerning rights of way: "Each was concerned with the resolution, in particular circumstances, of the inevitable conflict between the dominant owner's right of access to the way and the servient owner's right to fence his land. No hard and fast rule emerges from those cases, let alone any rule that could be applied mechanically in the circumstances of the present case. The guidance that those cases do afford is, I think, this, that whilst the servient owner may not derogate from the grant, the dominant owner may not make unreasonable demands. What would, in a particular case, constitute a derogation from the grant and what would, in that case, constitute an unreasonable demand depends, of course, in the first instance on the proper construction of the grant and then on the factual circumstances."
1 Citers


 
Young v Dalgety plc [1987] 1 EGLR 116
1987
CA

Land
A decision had been made at first instance that fitted carpets were fixtures rather than fittings. Held: The deision was not disturbed.
1 Citers


 
Patel v Smith (WH) (Eziot) [1987] CLY 3039
1987


Land

1 Citers


 
Rubinstein v Secretary of State for the Environment (1987) 57 P&CR 111
1987

Taylor J
Land
Because of the conclusive nature of inclusion of a right of way on the definitive map as at the relevant date, Section 53(3)(c)(iii) could only involve consideration of evidence relating to matters after the relevant date, for example the physical destruction of the land over which the right of way was said to exist.
1 Citers


 
Newnham v Willison (1987) 56 P&CR 8
1987
CA
Kerr LJ, Eastham J
Land
Kerr LJ considered the exercise of an easement over land (a sweep of a curve over a driveway) by force, saying: "In my view, what these authorities show is that there may be 'vi' - a forceful exercise of the user - in contrast to a user as of right once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious. If he then overcomes the objections, and in particular if he overcomes them in a physical way, expressed by the word "vi" or "force", such as by removing an obstruction, then that is sufficient evidence to show that on the one hand the owner of the servient land was objecting to the use, so that the user was no longer as of right, and on the other hand that the person who claims the right was aware that he was not exercising it as of right but in the face of objections by the servient owner."
Prescription Act 1832
1 Citers


 
Bowers v Bowers Unreported, 3rd February 1987
3 Feb 1987

Hoffmann J
Land
Husband and wife were the joint owners of a house subject to a mortgage. The husband purported to remortgage the house, the wife's signature being forged. Held. Although the remortgage only took effect as a charge on the husband's equitable interest, the new mortgagee was subrogated to the rights of the original mortgagee even though the wife knew nothing about the remortgaging.
1 Citers


 
Batchelor v Kent County Council 117/1986; (1989) 59 P & CR 357
1 Mar 1987
LT
WH Rees Esq
Land
The tribunal was asked to determine compensation to be paid on the acquisition of two plots of land. The land-owner claimed £9,000,000 and the council offered £5,490. The land-owner claimed the value as ransom as necessary access to a larger development.
1 Cites

1 Citers


 
Loh Wai Lian v Sea Housing Corporation [1987] UKPC 4
3 Mar 1987
PC

Land, Construction
Malaysia
[ Bailii ]
 
Kumar v Dunning and Another [1987] EWCA Civ 1; [1989] 1 QB 193
15 Apr 1987
CA
Sir Nicholas Browne-Wilkinson V-C, Croom-Johnson, Neill LJJ
Land
The court considered the effect of section 62. Sir Nicholas Browne-Wilkinson V-C said: "The main intention of Section 62 was to provide a form of statutory shorthand rendering it unnecessary to include such words expressly in every conveyance. It is a matter of debate whether, in the context of the section, the words "rights . . appertaining to the land" include rights arising under a covenant as opposed to strict property rights. However, I will assume, without deciding, that rights under covenant are within the words of the section. Even on that assumption, it still has to be shown that the right "appertains to the land". In my judgment, a right under covenant cannot appertain to the land unless the benefit is in some way annexed to the land. If the benefit of a covenant passes under Section 62 even if not annexed to the land, the whole modern law of restrictive covenants would have been established on an erroneous basis. Section 62 (1) replaces Section 6 (1) of the Conveyancing Act 1881. If the general words "rights . . appertaining to land" operate to transfer the benefit of a negative restrictive covenant, whether or not such benefit was expressly assigned, it would make all the law developed since 1881 unnecessary. It is established that, in the absence of annexation to the land or the existence of a building scheme, the benefit of a restrictive covenant cannot pass except by way of express assignment. The law so established is inconsistent with the view that a covenant, the benefit of which is not annexed to the land, can pass under the general words in Section 62. Therefore, in my judgment, the Plaintiff cannot rely on Section 62 unless, at the least, he can show that the surety covenant touches and concerns the land so as to be capable of annexation, a point which I consider at (3) below."
Law of Property Act 1925 62
1 Citers

[ Bailii ]
 
City of London Building Society v Flegg And Another [1988] AC 54; [1987] 3 All ER 435; [1987] 2 WLR 1266; [1987] UKHL 6
14 May 1987
HL
Lord Bridge of Harwich, Lord Templeman, Lord Mackay of Clashfern, Lord Oliver of Aylmerton and Lord Goff of Chieveley
Land, Registered Land
A couple bought a property and registered it in their own names with substantial financial assistance from the parents of one of them. The parents occupied the house with them. Without telling the parents, the owners borrowed again, executing further charges. Held: The fact of occupation did not add to the parents' rights as equitable chargees, or as tenants in common. A balance was to be found between making property available to be traded, and protecting the rights of equitable owners. The parents' rights were overreached by the charges.
The provisions of the Land Registration Acts were designed to operate in parallel and consistently with the property legislation governing unregistered land.
Lord Oliver of Aylmerton: "… the philosophy behind both the Land Registration Act 1925 and the Law of Property Act 1925 was that they should operate in parallel, and it would, therefore, be surprising if it were found that the two systems were not constructed so as to dovetail into one another." and
"If then, one asks what were the subsisting rights of the respondents [the occupying beneficiaries] referable to their occupation, the answer must, in my judgment, be that they were rights which, vis-à-vis the appellants [the mortgagee], were, eo instante with the creation of the charge overreached and therefore subsisted in relation to the equity of redemption."
Law of Property Act 1925 14 - Land Registration Act 1925 70(1)(g)
1 Cites

1 Citers

[ lip ] - [ Bailii ]
 
BP Properties Ltd v Buckler [1987] EWCA Civ 2; (1988) 55 PC&R 337
31 Jul 1987
CA
Dillon LJ, Mustill LJ, Sir Edward Eveleigh
Land, Limitation
The putative owner of the paper title wrote to the defendant who occupied the relevant property in October 1974 as follows: "Since we wish to help you as much as possible we are prepared to allow you to remain in occupation of the house and garden rent free for as long as you may wish and for the rest of your life if you so desire. I am pleased accordingly to confirm that we will not require you to give up possession during your lifetime or until such time as you may choose no longer to live in the house and we have given the necessary instructions so that no proceedings will be commenced until you personally no longer live there."
There was a pending warrant for possession against the defendant. Her solicitors produced the letter written to her from the paper title owner to the County Court judge who stayed the warrant as a result. They sought her instructions on the letter but before obtaining a response the then paper owner withdrew the warrant. The defendant never did respond to the letter by accepting or rejecting it. She remained in possession until her death some nine years later. The paper title owner contended subsequently that no claim for adverse possession could arise after October 1974 because by then the defendant was occupying the land pursuant to a licence and so her possession was not adverse. The licence was unilateral in the sense that it was not one to which she had expressly assented, but it was contended that this would make no difference. Held: Where a person claimed to have obtained a title by adverse possesssion, it did not matter if the person in possession did not know that his or her possession was lawful; the lawful title would still preclude the person with the paper title from evicting the person in possession.
Dillon LJ said: "The claim that a unilateral licence can stop time running is a new one. It may be of some general importance in that it would enable a person who is not prepared to incur the cost of bringing proceedings for possession or of enforcing a possession order to keep his title alive for very many years until it suits him to evict. It might be thought that for title to be kept alive in this way was contrary to the policy of the statute as exemplified by section 13 of the 1939 Act which reproduced earlier statutory provision to the same effect and prevented any right of action to recover land being preserved by formal entry or continual claim . . It may be that the result would have been different if Mrs Buckler had, assuming she had learnt of the letters, plainly told BP Properties Limited that she did not accept the letters and maintained her claims to be already the owner of the property. She, however, did not do that. She accepted her solicitor's advice that, as the warrant for possession had been withdrawn, she should do nothing while the 12-year period from the date of possession order expired . . Whether BP Properties could or could not in law in the absence of consideration have sought to determine in her lifetime the licence, they did not in fact seek to do so. Had they sought to do so they would in the absence of any repudiation of the letters by Mrs Buckler have had to have given Mrs Buckler a reasonable time to quit, as with any licensee. The nature of Mrs Buckler's possession after receipt of the letters cannot be decided just by looking at what was locked up in her own mind. It must depend even more on this aspect of the case, on the position as seen from the standpoint of the person with the paper title. What could that person have done? The rule that possession is not adverse if it can be referred to a lawful title applies even if the person in possession did not know of the lawful title. The lawful title would still preclude the person with the paper title from evicting the person in possession.
So far as Mrs Buckler was concerned, even though she did not 'accept' the terms of the letter, BP Properties Limited would in the absence of any repudiation by her of the two letters have been bound to treat her as in possession as licensee on the terms of the letters. They could not have evicted her (if they could have done so at all) without determining the licence. I can see no escape therefore from the conclusion that, whether she liked it or not, from the time of her receipt of the letters Mrs Buckler was in possession of the farmhouse and garden by the licence of BP Properties Limited."
1 Citers

[ Bailii ]
 
Mount Carmel Investments Limited v Peter Thurlow Limited [1988] 1 WLR 1078
1988
CA
Nicholl LJ
Land, Limitation
The court considered a defence to an assertion of adverse possession, that the plaintiff had given notice of his intention to recover the land: "no one, either lawyer or non-lawyer, would think that a householder ceases to be in possession of his house simply by reason of receiving a demand that he should quit.
On the owner's argument time starts to run afresh by making a demand for possession. That is in flat contradiction to the long-recognised position and the statutory scheme where a squatter is in possession of another's land. Unless the squatter vacates or gives a written acknowledgment to the owner, the owner has to issue his writ within the prescribed time limit. Otherwise he is barred, because by section 15(1) he is barred from bringing any action to recover the land after the expiration of the 12-year period."
Land Registration Act 1925 15(1) 75(1)
1 Cites

1 Citers


 
Strover v Harrington [1989] ANZ Conv R 352; [1988] 1 Ch 396; [1988] 09 EG 61; [1988] 2 WLR 572
1988

Sir Nicholas Browne-Wilkinson VC
Land, Legal Professions
A property was at first wrongly described by the agents as having mains drainage. Correcting information was sent to the buyer's solicitors by the Agents, but the solicitors did not pass on the correction to their client. The mistake was later repeated by the valuer. Held: Sir Nicholas Browne-Wilkinson VC said: "if it is once shown that a misrepresentation has been made, it is no answer for the representor to say that the representee has been negligent and could have found out the true facts if he had acted otherwise. The representee is under no duty of care to the representor to check on the accuracy of the representation. The representor is bound by his representations, however careless the representee may have been." However when documents were received by the purchaser's solicitor, he was obliged to communicate them to his client, and that therefore there was from that time no concealment. The knowledge of the solicitor was imputed to his client. It was for a purchaser to satisfy himself as to the condition of what he purchased. The cause of the loss was not any misrepresentation, but the solicitor's failure. In any event the property was worth the price paid.
Browne-Wilkinson VC: "In this, as in all other normal conveyancing transactions, after there has been a subject to contract agreement the parties hand the matter over to their solicitors who become the normal channel for communication between vendor and purchaser in all matters relating to that transaction. In so doing, in my judgment the parties impliedly give actual authority to those solicitors to receive on their behalf all relevant information from the other party relating to that transaction. The solicitors are under an obligation to communicate that relevant information to their own clients. At the very least, the solicitors are held out as having ostensible authority to receive such information. Whether there be express or ostensible authority, the purchaser is in my judgment estopped from denying that he received the information relating to the transaction which has been communicated to his solicitors acting in the same transaction. In my judgment, such knowledge should be imputed to the principal."
1 Citers


 
Regina v Secretary of State for Transport, ex parte de Rothschild [1989] 1 All ER 933; (1988) 57 P & CR 330
1988
CA
Slade LJ, Croom-Johnson LJ and Ralph Gibson LJ
Transport, Land
The court considered the use of powers of compulsory purchase of land under the Acts. Held: "In answer to counsel's submissions as to 'special rules', I summarise my conclusions thus. First, I do not accept that any special rules beyond the ordinary Wednesbury/Ashbridge rules fall to be applied when the court is considering a challenge to the Secretary of State's confirmation of the compulsory purchase order. Second, however, the Secretary of State, as counsel on his behalf accepted and submitted, must be satisfied that the compulsory purchase order is justified on its merits before he can properly confirm it. He must not exercise his powers capriciously. Given the obvious importance and value to land owners of their property rights, the abrogation of those rights in the exercise of his discretionary power to confirm a compulsory purchase order would, in the absence of what he perceived to be a sufficient justification on the merits, be a course which surely no reasonable Secretary of State would take."
Highways Act 1980 - Highways Act 1981
1 Cites

1 Citers


 
Dyer v Dorset County Council [1988] 3 WLR 213; [1989] 1 QB 346
1988
CA
Lord Donaldson of Lymington MR, Nourse LJ, Mann LJ
Planning, Land
The court discussed what was meant by the curtilage of the appellant's house: "Thus the sole issue is whether Mr Dyer's house is or is not within the curtilage of another building or, by the application of section 6 of the Interpretation Act 1978, of more than one other building. This is a question of fact and degree and thus primarily a matter for the trial judge, provided that he has correctly directed himself on the meaning of 'curtilage' in its statutory context." and "Parliament has not seen fit to define the word 'curtilage' in this statutory context and we have to regard to dictionaries and to such authorities as to its meaning as existed in 1980 and 1984." and "There are also a number of ecclesiastical authorities to the effect that a curtilage must be near a house and must 'belong' to it ..." "'Curtilage' seems always to involve some small and necessary extension to that to which the word is attached." Nourse LJ: "I agree. The derivations mentioned in the Oxford English Dictionary (French, courtil - a little court or garth; Italian, corte; Mediaeval Latin, cortile or curtile - a court or yard) rather suggest that 'curtilage' started life as a word describing a small area enclosed by walls or buildings, the smallness of the area being emphasised by the diminutive suffix 'age', as in village. The need for physical enclosure of the area having disappeared in current usage, the dictionary definition, which I quote in full, is for most present-day purposes adequate." and "While making every allowance for the fact that the size of a curtilage may vary somewhat with the size of the house or building, I am in no doubt that the 100 acre park on the edge of which Mr Dyer's house now stands cannot possibly be said to form part and parcel of Kingston Maurward House, far less of any of the other college buildings. Indeed, a park of this size is altogether in excess of anything which could properly be described as the curtilage of a mansion house, an area beyond which no conveyancer would extend beyond that occupied by the house, the stables and other outbuildings, the garden and the rough grass up to the ha-ha, if there was one." Mann LJ: "The word 'curtilage' is a term of art and, in employing it, the draftsman and Parliament must have had regard to its meaning as such a term. Its meaning as a term was discussed in Metheun-Campbell. It appears from that decision that the meaning of the word 'curtilage' is constrained to a small area about a building. The size of the area appears to be a question of fact and degree."
Interpretation Act 1978
1 Cites

1 Citers


 
Hector v Lyons (1988) 58 P&CR 156
1988

Sir Nicolas Browne-Wilkinson V-C
Land, Equity, Contract
The appellant contracted to buy a house but used his under-aged son's name. He sought specific performance when the vendor failed to complete. Held: Since he was neither the purchaser nor the purchaser's agent, specific performance was refused. In unilateral mistake case goods are sold by V, to P, believing P to be X. P may fraudulently represent that he is X. In a face to face sale, the fact that V mistakes the identity of X does not render the contract void for mistake. It is a unilateral mistake as to a quality of the purchaser; only in cases where the identity of the purchaser is of direct and important materiality in inducing the vendor to enter into the contract is a mistake of that kind capable of avoiding the contract. Those principles have no application where the contract is wholly in writing. The identity of the parties is established by the names put in the contract. Once there, the court's only task is to identify who they are. "In the present case the deputy judge has found as a fact that the party named in the written contract was Mr. Hector junior. It follows, in my judgment, that in the absence of rectification, which has not been claimed, or Mr. Cogley's alternative argument based on agency the only person who can enforce that contract is the party to it, namely Mr. Hector junior."
1 Cites

1 Citers


 
Re Martin and Another's Application [1989] 05 EG 85; [1988] EWCA Civ 1; [1989] 1 EGLR 193; [1988] 3 PLR 45; [1988] 57 P&CR 119
10 May 1988
CA
Fox LJ, Balcombe LJ, Sir Frederick Lawton
Land
The applicants had agreed with the planning authority under section 37 of the 1962 Act that part of their land would be used only as a private open space. They later sought planning consent to build a house. The consent was granted on appeal to the Secretary of State. When the authority still refused to release them, they applied to the Lands Tribunal under section 84 of the 1925 Act. The application was dismissed. Held: The Court rejected the applicants' argument that the purpose of the section 37 agreement had gone with the grant of planning permission and that the covenant should therefore be discharged or modified. The section 37 regime and the regime governing the grant of planning permission were distinct and independent from each other.
Fox LJ said: "In my view, the applicants' contention is wrong in so far as it suggests that the granting of planning permission by the Secretary of State necessarily involves the result that the Lands Tribunal must discharge the covenant. The granting of planning permission is, it seems to me, merely a circumstance which the Lands Tribunal can and should take into account when exercising its jurisdiction under section 84. To give the grant of planning permission a wider effect is, I think, destructive of the express statutory jurisdiction conferred by section 84. It is for the tribunal to make up its own mind whether the requirements of section 84 are satisfied. All the facts of the case have to be examined by the Lands Tribunal."
Law of Property Act 1925 84 - Town and Country Planning Act 1962 37
1 Citers

[ Bailii ]
 
Lloyds Bank plc v Rosset [1988] EWCA Civ 11; [1989] Ch 350
13 May 1988
CA
Purchas LJ, Mustill LJ, Nicholls LJ
Trusts, Land

1 Citers

[ Bailii ]
 
P and A Swift Investments v Combined English Stores Group Plc [1988] UKHL 3; [1989] AC 632
7 Jul 1988
HL
Lord Oliver of Aylmerton
Land
The House was asked as to whether a covenant touched and concerned the land. Held: Lord Oliver of Aylmerton said: "Formulations of definitive tests are always dangerous, but it seems to me that, without claiming to expound an exhaustive guide, the following provides a satisfactory working test for whether, in any given case, a covenant touches and concerns the land: (1) The Covenant benefits only the reversioner for the time being and, if separated from the reversion, ceases to be of benefit to the covenantee: (2) The Covenant affects the nature, quality, mode of user or value of the land of the reversioner: (3) The Covenant is not expressed to be personal, that is to say neither being given only to a specific reversioner nor in respect of the obligations only of a specific tenant: (4) The fact that a covenant is to pay a sum of money will not prevent it from touching and concerning the land so long as the three foregoing conditions are satisfied and the covenant is connected with something to be done on to or in relation to the land."
1 Cites

1 Citers

[ Bailii ]
 
Kennedy v MacDonald 1988 GWD 40-1653
14 Nov 1988

Sheriff Principal Caplan
Land
Activities which are reasonably incidental to the enjoyment of a right of access over land may be incorporated in the right.
1 Citers


 
Dyer v Dyer (1788) 2 Cox 92; [1788] EWHC Exch J8
27 Nov 1988

Eyre CJ
Trusts, Equity, Land
Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: "The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold or leasehold; whether taken in the name of the purchasers and others jointly, or in the name of others without that of the purchaser, whether in one name or several; whether jointly or successive - results to the man who advances the purchase money. It is the established doctrine of a court of equity that this resulting trust may be rebutted by circumstances in evidence."
1 Citers

[ Bailii ]

 
 British Commonwealth Holdings plc v Quadrex Holdings Inc; 1989 - [1989] 1 QB 842
 
Phillips v Mobil Oil [1989] CLY 2087
1989


Land

1 Citers


 
Stoke-on-Trent City Council v W and J Wass Ltd [1988] 3 All ER 394; [1988] 1 WLR 1406
1989
CA
Nourse LJ, Nicholls LJ
Land, Damages
The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council sought damages and an injunction. It was awarded an injunction and damages in the amount of the licence fees it would have been able to charge. Held: The award of damages was incorrect. Rules relating to damages for breach of restrictive covenant were not applicable to such a situation. The damages awarded should have been nominal at most.
Nourse LJ said: "The general rule is that a successful plaintiff in an action in tort recovers damages equivalent to the loss which he has suffered, no more and no less. If he has suffered no loss, the most he can recover are nominal damages. A second general rule is that where the plaintiff has suffered loss to his property or some proprietary right, he recovers damages equivalent to the diminution in value of the property or right. The authorities establish that both these rules are subject to exceptions. These must be closely examined, in order to see whether a further exception ought to be made in this case." and as to torts of trespass etc
"But it is only in the last-mentioned case [i.e. Wrotham Park] and in the trespass cases that damages have been awarded in accordance with either principle without proof of loss to the plaintiff. In all the other cases, the plaintiff having established his loss, the real question has not been whether substantial damages should be awarded at all, but whether they should be assessed in accordance with the user principle or by reference to the diminution in value of the property or right. In other words, those other cases are exceptions to the second, but not to the first, of the general rules stated above."
He finished by saying: "It is possible that the English law of tort, more especially of the so-called 'proprietary torts', will in due course make a more deliberate move towards recovery based not on loss suffered by the plaintiff but on the unjust enrichment of the defendant: see Goff and Jones The Law of Restitution(3rd edn, 1986) pp 612–614. But I do not think that that process can begin in this case and I doubt whether it can begin at all at this level of decision."
Nicholls LJ said: "If, on the one hand, the unauthorised, other-day market has caused and is causing no loss, either of stallage or of tolls or under any of the other heads of loss which may affect the owner of a market right, there is no cause of action. There is, in that event, no question of applying the user principle. If, on the other hand, the owner of the market right does sustain loss under one or more of those heads, damages must surely be commensurate with the quantum of the loss so sustained. The damages will correspond, so far as the court can fairly assess them, to the amount of the loss flowing to the owner of the market right from the respects in which he has in fact been damnified in his enjoyment of that right by the holding of the unauthorised, other-day market. Again, there would be no place for awarding, by application of the user principle, damages in a sum greater than the amount of that loss." and
"It is an established principle concerning the assessment of damages that a person who has wrongfully used another's property without causing the latter any pecuniary loss may still be liable to that other for more than nominal damages. In general, he is liable to pay, as damages, a reasonable sum for the wrongful use he has made of the other's property. The law has reached this conclusion by giving to the concept of loss or damage in such a case a wider meaning than merely financial loss calculated by comparing the property owner's financial position after the wrongdoing with what it would have been had the wrongdoing never occurred. Furthermore, in such a case it is no answer for the wrongdoer to show that the property owner would probably not have used the property himself had the wrongdoer not done so.
1 Cites

1 Citers


 
Alvis v Harrison (1990) 62 P & CR 10; [1989] SLT 746
1989
HL
Lord Jauncey of Tullychettle
Land, Scotland
The dominant tenement lay on both sides of the servient land, a driveway running North South leading to the A73 highway. To the West of the driveway, on part of the dominant tenement, stood a house. The owner of the house wished to construct a new drive to run eastwards from the driveway and thence to join the highway further east than the place where the servient tenement joined it. The owner of the servient tenement sought to stop him from doing so. Held: He could not. A right of access over servient property could not in substance be used to benefit property other than the dominant property, whatever the ownership of the dominant and non-dominant properties.
Lord Jauncey of Tullychettle said: "Before turning to the facts of this case it may be convenient to state certain general principles applicable to servitude rights of access and their use: "Where a right of access is granted in general terms the owner of the dominant tenement is entitled to exercise that right not only for the purpose of the use to which the tenement is then being put but also for any other lawful purpose to which it may be put thereafter . . The right must be exercised civiliter, that is to say, reasonably and in a manner least burdensome to the servient tenement . . For the better enjoyment of his right the dominant owner may improve the ground over which the right extends provided that he does not substantially alter the nature of the road nor otherwise prejudice the servient tenement . . A servitude right of access inures to the benefit of the dominant tenement and no other. Thus is cannot communicated for the benefit of other tenements contiguous thereto . . What they may not do, however, is to use the way, or permit its use by others, to obtain access to subjects other than the dominant tenement, whether or not they happen to be heritable proprietors of those others subjects. They may not, in short, increase the scope of the right of access, and in particular they may not use the way for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the lane and the non dominant subjects . ." and "It is quite wrong to treat the A 73 as though it were another tenement contiguous to the woodlands. The underlying reason for restricting the benefit of a servitude right of access to the dominant tenement alone is that to use it for the benefit of a second or third tenement is likely to generate more traffic and so increase the burden. In this case, the appellant already has a right of access to the A 73 over the driveway. The new road merely provides a substitute means of access without altering the volume of traffic."
1 Citers



 
 Bridle v Ruby; CA 1989 - [1989] QB 169
 
Blankstein, Fages and Fages v Walsh [1989] 1 WWR 277
1989


Land
(Manitoba) Cottages were used for summer recreation. Though the acquisition of an easement by prescription to use adjoining land known as the "playground" as a family recreational area was rejected on the facts, as the use was not as of right, the court recognised that the rights claimed were capable of existing as easements.
1 Citers



 
 Longman v Viscount Chelsea; CA 1989 - (1989) 58 P&CR 189

 
 Batchelor v Kent County Council; CA 1989 - [1992] 1 EGLR 217; (1990) 59 P&CR 357

 
 Reed v Madon; ChD 1989 - [1989] 2 All ER 431; [1989] 1 Ch 408
 
Spook Erection Ltd v Secretary of State for the Environment [1989] QB 300
1989
CA
Nourse LJ
Land
Nourse LJ explained the nature of a franchise in land: "The right which was granted to one Anthony Bourchier by the letters patent of 29 June 1637 was a franchise; an incorporeal hereditament which has been authoritatively defined as a royal privilege or branch of the royal prerogative subsisting in the hands of a subject, by grant from the King: see Chitty: The Prerogatives of the Crown (1820), p. 119."
1 Citers



 
 Rhodes v Allied Dunbar Pension Services Ltd; CA 1989 - [1989] EG 70; [1989] 1 WLR 800
 
J Sainsbury plc v Enfield London Borough Council [1989] 1 WLR 590
1989

Morritt J
Costs, Land
Morritt J first asked from what fact or facts might it be inferred that the intention in a conveyance was that restrictive covenants should enure for the benefit of the retained land, and recorded the contentions of the parties as follows: "On the first issue, the plaintiffs contend that the intention must be manifested in the conveyance in which the covenant was contained when construed in the light of the surrounding circumstances, including any necessary implication in the conveyance from those surrounding circumstances. The defendants claim that such intention may be inferred from surrounding circumstances which fall short of those which would necessitate an implication in the conveyance itself." Held: The plaintiffs' submission was correct, and, having considered the surrounding circumstances: "There are no words in the conveyance indicating any such intention, nor do I consider the surrounding circumstances necessitate any implication." The successful applicant for a declaration under section 84(2) should be paid its costs by the defendants.
Law of Property Act 1925 84(2)
1 Citers


 
Ozanne and Others v Hertfordshire County Council [1989] 2 EGLR 18; [1991] 1 WLR 105
1989
HL
Lord Mackay
Land, Damages
Land was acquired for a new highway. The developer had persuaded or agreed with the public authority that it would exercise its statutory powers to acquire land possessed of ransom value. Held: What the scheme was which underlined a proposed compulsory acquisition was a matter of fact for the tribunal or court. The statutory powers must relate to the use of the acquired land and must be powers enabling the use of the land for a statutory purpose and to be necessary for that purpose. This excludes planning permission or other general consents. They do not include agreements to do works on land owned by a statutory authority.
Lord Mackay of Clashfern: "The special suitability or adaptability of the land for any purpose is directed to be left out of account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers. This is expressed in the passive voice but the context shows that the application referred to is by a person using the land and, therefore, the statutory powers in question must be powers enabling a person entitled to use the land to apply it to the purpose in question and since the purpose in question is one to which the land could be applied only in pursuance of the statutory powers the statutory powers must be necessary to enable such person to use the land for that purpose. I do not see how statutory powers not related to the use of the land acquired could form a basis for the application of this part of the rule.
Therefore, I consider that statutory powers conferred upon the Secretary of State to order the stopping up of a highway on land which is not part of the land being acquired could not form the basis of the application of this part of the rule to the land acquired. Since the only statutory powers here relied upon by the council are the statutory powers of the Secretary of State to stop up parts of Thorley Lane, I consider that the council's argument must fail."
and "… in the present case the land acquired could have been used for a highway without the exercise of any statutory power and certainly was not dependent upon the Secretary of State exercising any statutory power to stop up any part of Thorley Lane." and
He then drew a distinction between a general statutory consent (eg planning permission), which does not fall within the rule, and a particular statutory power (113C):-
"This I think goes to emphasise the distinction referred to by counsel for the claimants when he pointed out that, if the present case were covered by the rule, it was very difficult to see why the rule should not also cover a purpose to which a piece of land could be put only after obtaining some particular statutory consent such as planning permission, consent under the Building Acts, or the like. It is clear from the modern statutory provisions governing compensation for the compulsory acquisition of land and the question of what types of development would receive planning consent is highly relevant to the determination of compensation for compulsory acquisition and any construction of the provision founded upon which resulted in any enhancement of the value of a piece of land resulting from its use for a purpose which required planning permission being disregarded would be absurd." He approved the conclusion that "the first limb of the provisions of rule (3) cannot apply in that special suitability or adaptability of the land can be realised other than by the use of statutory powers."
Highways Act 1959 214
1 Citers



 
 Jamaica Mutual Life Assurance Society v Hillsborough Limited; PC 1989 - [1989] 1 WLR 1101

 
 Huckvale v Aegean Hotels Ltd; CA 1989 - (1989) 58 P & CR 163

 
 Buckinghamshire County Council v Moran; CA 13-Feb-1989 - [1990] 1 Ch 623; [1989] EWCA Civ 11; [1990] Ch 632; [1989] 2 All ER 255
 
Brand and Another v Philip Lund (Consultants) Ltd [1989] EWHC 2 (Ch)
18 Jul 1989
ChD
Paul Baker QC HHJ
Land
The plaintiffs objected to the transport of wood from the defendant's neighbouring land by lorry along an accessway to the plaintiff's land. They said the defendants had no right of vehicular access. The defendants asserted a public vehicular highway. Held: The court rejected the argument that a public right of way may only exist from one public place or highway to another: "it does not have to be shown that it is normally used to go from one end to the other. It may normally be used by people going from either end to and from premises fronting on to it and less frequently used by persons traversing its whole length. The user necessary to establish a right of way is to be considered separately from the way itself."
This was an ancient vehicular highway used from time immemorial along the line of Ramscote Lane.
Highways Act 1980
1 Cites

[ Bailii ]

 
 Dyfed County Council v Secretary of State for Wales; CA 30-Nov-1989 - Times, 15 December 1989; (1990) P&CR 275
 
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