Category: Land

Rector of Wrington and The Bath and Wells Diocesan Board of Finance v Jenkinson and Others: ChD 26 Feb 2002

Land having been conveyed under the Act, and it no longer being needed as a school, it had to be decided to whom the land reverted.
Held: The tracing of beneficiaries had to be in the basis under section 2, that the land had never been so conveyed. It would so have passed not as a right of reverter, and therefore as part of the residuary estate, but rather as if it had been land in the estate, and passed as provided by the will as such. A right of reverter on the determination of a determinable fee was devisable under 3 of the 1837 Act

Judges:

Mr Justice Etherton

Citations:

Times 29-Mar-2002, Gazette 11-Apr-2002, [2002] EWHC 218 (Ch)

Links:

Bailii

Statutes:

School Sites Act 1841 2, Wills Act 1837 3

Jurisdiction:

England and Wales

Citing:

Cited – In Re Cawston’s Conveyance and the School Sites Act 1841 CA 1940
The 1841 Act was intended to encourage land owners to make land available for educational purposes: ‘One can see that the provision with regard to reverter would have been and no doubt was considered by the Legislature to be a very useful . .
Cited – Dennis v Malcolm 1934
The court considered the way in which the 1841 Act might operate as to a reversion of the title. Clauson J said: ‘In my view it is plain that the deed is intended to operate and operate only under the [1841] Act, and the effect of dealing with the . .
Cited – Fraser and Another v Canterbury Diocesan Board Of Finance (No 1) CA 24-Nov-2000
A grant of land was made under the 1841 Act in 1872 (after the 1870 Act) and the school had in 1874 been transferred to a school board under section 23 of the 1870 Act. The school closed permanently in 1992. The issue was whether reverter had . .
Lists of cited by and citing cases may be incomplete.

Land, Wills and Probate

Updated: 05 June 2022; Ref: scu.168063

National Westminster Bank Plc v Amin and Another: HL 28 Feb 2002

The respondents resisted an application for possession of their property by the bank. They claimed undue influence, and that because of an inability to speak English, the charge should be avoided. They appealed an order striking out their defence including inter alia that the solicitor had not been acting for them, and that accordingly they had not had independent advice.
Held: The issue as to whether the solicitor was acting for the appellants was a proper issue requiring decision by the courts. The bank knew, or should have known of the potential language difficulties, and ensured that appropriate arrangements were made. The matter should be remitted for trial.

Judges:

Lord Nicholls of Birkenhead Lord Hoffmann Lord Hope of Craighead Lord Scott of Foscote Lord Rodger of Earlsferry

Citations:

[2002] UKHL 9, [2002] 1 FLR 735, [2002] NPC 33, [2002] 2 P and CR DG3

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Lists of cited by and citing cases may be incomplete.

Banking, Land

Updated: 05 June 2022; Ref: scu.167980

Jones and Another v Forest Fencing Limited: CA 21 Nov 2001

The sellers of and disputed an order as to whether electrical equipment at the site hd been included in the contract.
Held: ‘the answer to the question ‘what meaning should be given to the words used in the memorandum’ cannot, I think, be a matter of serious doubt. The electrical apparatus at the site plainly included the high voltage reduction transformer, switch gear, distribution panels and isolators and the other equipment to which the judge referred. It is equally clear that the memorandum confirms that that apparatus – as well as the machinery used in the sawmill – is to be taken out. It is impossible to confine the words ‘the sawmill equipment will be removed and . . electrical apparatus will be taken out’ to the machinery alone. And, if the electrical apparatus as well as the machinery is to be taken out, the words ‘the first isolator’ in the context of the phrase ‘wiring taken out back to the first isolator’ must mean the isolator on the supply side of the apparatus. It is not, I think, in dispute that the first isolator on the supply side of the high voltage reduction transformer and its associated switch gear was at the point of connection to the high voltage supply.
It follows that the purchasers were not entitled to succeed on their claim. I would allow the vendor’s appeal against the order for payment.’

Judges:

Chadwick LJ, Sir Murray Stuart Smith

Citations:

[2001] NPC 165, [2001] EWCA Civ 1700

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – De Lassalle v Guildford CA 1901
The court was asked whether a representation amounts to a warranty or not.
Held: AL Smith MR said: ‘In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or . .
Cited – Record v Bell ChD 21-Dec-1990
Contracts for the sale of a house were about to be exchanged but office copy entries of the vendor’s title at the Land Registry had not yet been supplied. The solicitors agreed that contracts would be exchanged on the basis of a warranty that office . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – United Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 June 2022; Ref: scu.167821

Halifax Plc v Omar: CA 20 Feb 2002

The respondent occupied a flat as a tenant. The landlord had acquired it by means of a fraud on the claimant lender. The lender had been given an equitable charge over the property, and now claimed possession as subrogated to the original fraudulent owner. The tenant claimed to have taken and paid for a lease from one of the later parties to the fraud. He claimed an equitable charge by subrogation in priority to the claimant. The lender had not taken steps to register any caution to protect its interests.
Held: There are three requirements for subrogation. The money must have been used to pay the purchase price, that it had been paid by them solely for this purpose, and that the transaction was always to be on the basis that they would achieve a charge. Tracing is neither a claim nor a remedy but a process, and subrogation is a remedy, not a cause of action. The respondent was an innocent third party purchaser without notice of the claimant’s interest. There is a distinction between subrogation to a security, which includes rights in rem, and subrogation merely to the indebtedness itself which operated only in personam. The doctrine of subrogation is that, where A’s money is used to pay off B, a secured creditor, A is entitled in equity to an assignment of B’s security rights. The appeal failed, and the interest of the lender had priority.

Judges:

Lord Justice Simon Brown, Lord Justice Laws, And, Lord Justice Jonathan Parker

Citations:

[2002] EWCA Civ 121

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Cited – Banque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
Approved – Burston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .

Cited by:

Cited – Cheltenham and Gloucester Plc v Appleyard and Another CA 15-Mar-2004
The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Registered Land

Updated: 05 June 2022; Ref: scu.167634

Braymist Limited and Others v Wise Finance Company Limited: CA 20 Feb 2002

The claimant company set out to sell land whilst it was still only in the process of incorporation. Its solicitors had signed as agents, and now sought an order for the purchaser to complete the contract. The respondent had not known of the non-incorporation of the company. The claimant later rescinded the contract, and forfeited the deposit. At first instance Etherton J had held that the solicitors had been capable of rescinding and had rescinded the agreement, that the contractual deposit was forfeit to the solicitors and that Wise was liable to pay the solicitors damages for breach of contract.
Held: The appeal failed. The section in the 1985 Act implemented a clause in the 1972 Act and the 1968 directive. Was the agent both liable under the contract and able to enforce it, and was the agreement unenforceable for failure to comply with the 1989 requirement for an appropriate memorandum? The European directive was to be interpreted directly. It was a compromise of different laws through member states, but was silent as to the ability of an agent to enforce such a contract. Section 36C should not be read down to limit its meaning. In this case, the solicitor agent could enforce the contract. As a party to the contract, he could also sign, and the 1989 Act should not be read too strictly.
Latham LJ said:
‘It is common ground that section 36C of the Companies Act 1985, and its predecessor, was enacted in order to give effect to article 7 of the First Council Directive (68/151/EEC) already referred to by Arden L.J. in her judgment, and in particular to reverse the decision of this court in Newborne v. Sensolid (Great Britain) Ltd. [1954] 1 QB 45. It also put to rest any doubts that there might have been as to the liability of a person who purports to act as an agent in such a situation . .’
Judge LJ explained to effect of Section 36C:
‘ . . The purported contract, otherwise a nullity, ‘has effect’, not as one made with the unformed company but as one made with the purported agent, who is ‘personally liable’ to [the other party] on the contract.’
Judge LJ, ultimately favoured ‘the broad view’ and said:
‘My difficulty is created by the concluding words of the subsection, ‘and he is personally liable on the contract accordingly’. If the contract ‘has effect’ as one made with the purported agent of the company, B [the ‘agent’] would become personally liable on the contract without the concluding words of the subsection. The contract ‘has effect’. The language of section 36C(1) reflects the broad thrust of the First Council Directive (68/151/EEC), first implemented domestically in its predecessor, section 9(2) of the European Communities Act 1972 . The recital twice refers to ‘protecting’ third parties . .
If the broad view is correct, the statute has gone much further than the creation of new protection for A [the other contracting party]. Plainly, as a matter of statutory construction, section 36C(1) may have extended beyond simple compliance with the Directive. Nevertheless the concluding words add something: if surplusage, they would not be there. Their presence provides a clear indication that the highlight of section 36C(1) is protection for A.’
Judge LJ continued:
‘In principle, the identity of the other party to a contract often matters, sometimes very much indeed. A might happily contract with C, but not with either B, or even D, even if identical terms were available. He may have a complete antipathy to being beholden to or under any legal obligation personally to B, or indeed anyone other than C. There are, of course, well understood exceptions to the principle that an individual is free to decide whether and with whom to enter or not to enter, a contract (for example, the legislation in relation to discrimination on the grounds of sex or race). But I may illustrate the difficulties by considering a contract of employment, underlining that so far as unformed companies are concerned, there are no limits to the contracts to which section 36C(1) applies: it applies to them all. A may welcome the opportunity of employment, as, say, an office manager for a particular company, with which he is contracting. If the company is unformed, is he bound to accept similar employment on identical contractual terms, with B? Or become liable to B for breach of contract if he refuses or fails to do so? Surely not. The answer however is not that the contract is automatically deprived of the ‘effect’ which section 36C(1) has created, but rather, that just as section 36C(1) is not apt to exclude considerations such as illegality, or misrepresentation, or other incidents of a contract, it is equally inappropriate to exclude relief on the basis of the identity of the contracting party, if relief would be available on ordinary contractual principles.’

Judges:

Lord Justice Judge, Lord Justice Latham, Lady Justice Arden

Citations:

Gazette 28-Mar-2002, Times 05-Apr-2002, [2002] EWCA Civ 127, [2002] Ch 273, [2002] 1 BCLC 415, [2002] 2 All ER 333, [2002] 3 WLR 322

Links:

Bailii

Statutes:

Companies Act 1985 36C(1), European Communities Act 1972 9(2), First EC Company Law Directive (68/151/CEE OJ No. 1968 L6) Art 7, Law of Property (Miscellaneous Provisions) Act 1989 2(1) 3

Jurisdiction:

England and Wales

Citing:

Cited – Phonogram Ltd v Lane CA 1982
A collateral contract was entered into with a company which had not then been incorporated under which an advance by Phonogram to support an intended new pop group was repayable by the company if a recording contract was not entered into within one . .

Cited by:

Cited – Royal Mail Estates Limited v Maple Teesdale Borzou Chaharsough Shirazi ChD 2-Jul-2015
A contract had been made but one of the parties was not yet incorporated. The court was asked whether it was deemed to have been made with the signatory.
Held: For section 36C(1), a ‘contrary agreement’ would be established if the parties, . .
Lists of cited by and citing cases may be incomplete.

Company, Land, Legal Professions, European, Contract

Updated: 05 June 2022; Ref: scu.167665

Dennis Pritchard Evans v Tiger Investments Limited, David John Moore: CA 20 Feb 2002

The first defendant appealed a judgement that it was responsible to the claimant for a loan taken out by the second defendant, one of its shareholders. He had said it was for the company, and he had been found not personally responsible. Land had been purchased in the second defendant’s name, he said, only for convenience in a speedy transaction, and the charge had been executed by him for the company.
Held: The judge had evidence sufficient to establish that the land was being purchased for the first defendant. The appellants sought to introduce new evidence at appeal. The Ladd principles on admission of evidence at appeal, are that the evidence was not with reasonable diligence available for the trial; that the evidence would have an important influence, and that it was credible. In this case the evidence could have been obtained. Concentrating on the justice as between claimant and defendant, there was no purpose in relaxing that principle.

Judges:

The President, Lord Justice Potter, And, Lord Justice Kay

Citations:

[2002] EWCA Civ 161

Links:

Bailii

Statutes:

Civil Procedure Rules 52.11(2)

Jurisdiction:

England and Wales

Citing:

Applied – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Lists of cited by and citing cases may be incomplete.

Company, Land, Evidence, Civil Procedure Rules

Updated: 05 June 2022; Ref: scu.167633

Price and Another v Nunn: ChD 11 May 2012

Applications were made to strike out parts of a Defence and Counterclaim. The relevant parts of this pleading assert the existence of a private right of way, or a public right of way, in either case with or without vehicles, over certain land owned by the Claimants. The Claimants say that there is a cause of action estoppel, or an issue estoppel, arising from two sets of earlier proceedings, binding on the Defendant, which prevents the Defendant putting forward these contentions. Alternatively, the Claimants say that the relevant averments in the Defence and Counterclaim involve an abuse of the process of the court.

Judges:

Morgan J

Citations:

[2012] EWHC 1251 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – LE Walwin and Partners Limited v West Sussex County Council ChD 1975
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 . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 05 June 2022; Ref: scu.457621

Attorney-General v Chambers: 8 Jul 1854

Lord Cranworth LC said that ‘Lord Hale gives as his reason for thinking that lands only covered by high spring tides do not belong to the Crown, that such lands are for the most part dry and manorable’, and that ‘the reasonable conclusion is, that the Crown’s right is limited to land which is for the most part not dry or maniorable’.

Judges:

Lord Cranworth LC, Alderson B and Maule J

Citations:

[1854] EngR 733, (1854) 4 De G M and G 206, (1854) 43 ER 486

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 June 2022; Ref: scu.293590

LE Walwin and Partners Limited v West Sussex County Council: ChD 1975

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.
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.
The plaintiffs now claimed to a right to maintain a barrier on certain road on ground of an only earlier partial dedication of it, but was faced with a judgment in 1958, in which the predecessor in title of the plaintiff had been a party to proceedings, before the Quarter Sessions over the status of the same road, and in which the said predecessor in title failed to raise the question of the right to maintain such a barrier.
Held: The failure of the said predecessor in title, and in this context a privy to the present plaintiff, to raise the question estopped the plaintiff from raising the said question and the action failed. It is not open for a party to litigation to raise, subsequent to adjudication, a matter which could, and should have been brought forward in the course of that litigation, after the creation of an ‘estoppel per rem judicatam’

Judges:

Plowman V-C

Citations:

[1975] 3 All ER 604

Jurisdiction:

England and Wales

Cited by:

Cited – Ernstbrunner v Manchester City Council and Another Admn 16-Dec-2009
The appellant challenged by case stated a refusal of the Crown Court to order removal of a gate which he said obstructed a public footpath. The land-owner had persuaded the magistrates that the gate was not on the line of the footpath. The claimant . .
Cited – Norfolk County Council, Regina (on the Application Of) v Secretary of State for Environment, Food and Rural Affairs Admn 10-Feb-2005
The claimant sought to challenge the confirmation of a public footpath. Pitchford J described how the court should interpret the definitive map made under the 1981 Act: ‘The correct approach to interpretation of the definitive map and statement must . .
Cited – Price and Another v Nunn ChD 11-May-2012
Applications were made to strike out parts of a Defence and Counterclaim. The relevant parts of this pleading assert the existence of a private right of way, or a public right of way, in either case with or without vehicles, over certain land owned . .
Lists of cited by and citing cases may be incomplete.

Land, Estoppel

Updated: 05 June 2022; Ref: scu.384349

Darby v Darby; Rebecca Darby v Alfred Edmund William Darby, Alice Mary Darby, Alfreda Lucy Darby, Abraham Darby: 8 Mar 1856

A. and B. purchased land on a joint speculation with their joint monies for the purpose of laying it out in building plots, and reselling it at the joint profit or loss of A. and B. Held, that it was converted out and out, and the share of one of the partners deceased in part of the unrealised real estate passed to his personal representatives.

Citations:

[1856] EngR 328, (1856) 3 Drew 495, (1856) 61 ER 992

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Trusts

Updated: 05 June 2022; Ref: scu.291083

Leonidis v Thames Water Authority: 1979

Access to the plaintiff’s motor repair business was interfered with by work to reconstruct a sewer. Whilst access was still possible it required a long detour and there was no physical interference with the entrance to the premises.
Held: If a private individual had interfered with access as the statutory authority had done then there would have been a good cause of action for the loss suffered by the business. 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 … .’.
It was submitted that so long as a local authority in exercising its powers under the Act provision did not create an obstruction greater in extent or for longer than was reasonably necessary for the proper carrying out of their duties, no claim would lie. Rejecting that submission, Parker J said: ‘This contention is in my judgment untenable. Harper v Hayden was not a decision which, despite what was said in it about the decision in Lingke’s case, decides anything more than that where an owner of premises adjoining a highway is conducting building works and, for the protection of the public, erects a hoarding which obstructs the highway for no longer than reasonably necessary, he commits no wrong. This is in accord with both Herrins and Lingke. To extend this to obstructions by local and other authorities in the exercise of statutory powers would be to deprive section 278 of all content. It would enable a Water Authority to close completely a street of shops for a year or more if it was reasonably necessary thus depriving shopkeepers of their livelihood for a year, and yet say that there was no right to compensation. A construction on the section leading to such a result would be to attribute to Parliament an intention which amounts almost to confiscation without compensation. I can attribute no such intention. Moreover, such a construction would be against the ordinary meaning of the words ‘common sense’ and ‘authority’. ‘

Judges:

Parker J

Citations:

(1979) 251 EG 669, (1979) 11 BLR 16

Statutes:

Public Health Act 1936

Jurisdiction:

England and Wales

Citing:

Cited – Lingke v Christchurch Corporation CA 1912
The householder sought compensation under the Act, for the disturbance in the laying of a drain in the highway abutting the claimant’s house and furniture shop. Because of the constraints of the work site, excavated soil had been thrown up against . .

Cited by:

Cited – Westminster City Council v Ocean Leisure Limited CA 21-Jul-2004
The claimant company owned property next to land which had been acquired to build a new bridge across the Thames. It sought compensation for disturbance to its business from the works.
Held: The state of the law was complicated and . .
Cited – Manolete Partners Plc v Hastings Borough Council TCC 12-Apr-2013
Application for compensation under s.106 of the Building Act 1984 for compensation as a result of the Council exercising its powers to prevent access to Hastings Pier under s.78 of the 1984 Act.
Held: The court rejected the defence, holding . .
Cited – Manolete Partners Plc v Hastings Borough Council CA 7-May-2014
The claimants appealed from rejection of their claim to compensation under the 1984 Act as tenants of a pier closed by the Authority. The Authority said that it had failed to comply with its leasehold obligations of repair, and was in default under . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 05 June 2022; Ref: scu.204686

Norfolk County Council, Regina (on the Application Of) v Secretary of State for Environment, Food and Rural Affairs: Admn 10 Feb 2005

The claimant sought to challenge the confirmation of a public footpath. Pitchford J described how the court should interpret the definitive map made under the 1981 Act: ‘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 on 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. The question whether the statement does describe the position of a footpath shown on the map is, I accept, a matter of fact and degree. That the statement purports, by reference to the same footpath designation number, to specify the position of a footpath similarly designated on the map is some but, in my view, inconclusive evidence that it in fact does so . . The question whether the statement describes the position of the footpath marked on the map need not require the precision of a slide rule . . For the purposes of section 56 of the Wildlife and Countryside Act 1981 the definitive map is the primary and source document. If the accompanying statement cannot be read as supplying particulars of the position of the footpath shown on the map then the position as shown on the map prevails over the position described on the statement. It is conclusive evidence unless and until review under section 53(2). As the absence of authority in this fertile area of litigation demonstrates, the number of occasions when a statement cannot be regarded as compatible with the map will be rare. The question whether they are in irreconcilable conflict is a matter of fact and degree. In reaching a conclusion whether the statement can be reconciled with the map, a degree of tolerance is permissible, depending on the relative particularity and apparent accuracy with which each document is drawn. Extrinsic evidence is not relevant to this exercise save for a comparison between documents and the situation on the ground at or about the ‘relevant date’.’

Judges:

Pitchford J

Citations:

[2005] EWHC 119 (Admin), [2006] 1 WLR 1103

Links:

Bailii

Statutes:

Wildlife and Countryside Act 1981 56

Jurisdiction:

England and Wales

Citing:

Cited – LE Walwin and Partners Limited v West Sussex County Council ChD 1975
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 . .

Cited by:

Cited – Ernstbrunner v Manchester City Council and Another Admn 16-Dec-2009
The appellant challenged by case stated a refusal of the Crown Court to order removal of a gate which he said obstructed a public footpath. The land-owner had persuaded the magistrates that the gate was not on the line of the footpath. The claimant . .
Cited – Kotarski and Another v Secretary of State for Environment, Food and Rural Affairs Admn 13-May-2010
The applicant sought to challenge an enquiry resulting in the confirmation of of a public right of way across his land. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 June 2022; Ref: scu.222617

Lingke v Christchurch Corporation: CA 1912

The householder sought compensation under the Act, for the disturbance in the laying of a drain in the highway abutting the claimant’s house and furniture shop. Because of the constraints of the work site, excavated soil had been thrown up against the house and shop, with the result that access to the property (particularly for movement of furniture) was seriously impeded. The Act provided for the payment of compensation where any person sustained damage by reason of the exercise of powers under the Act.
Held: Compensation was payable. Referring to Herring, hoardings ‘are the sort of things that it is recognised that people may do in respect of the highway which although they physically obstruct, do not constitute an obstruction of the King’s highway for the purpose . . of civil action’ and ‘Putting it shortly, those obstructions which are absolutely necessary for the convenient and safe user of the highway are not deemed by the law to be obstructions of the highway for the purposes of indictment or for the purposes of the individual causes of action . .’ and ‘If there is a public right such as the user of a street and it is interfered with by an individual, that interference does constitute an actionable wrong . .’

Judges:

Vaughan Williams LJ, Fletcher Moulton LJ, Buckley LJ

Citations:

[1912] 3 KB 595

Statutes:

Public Health Act 1875

Jurisdiction:

England and Wales

Citing:

Cited – Herring v Metropolitan Board of Works CCP 1865
All the main sewers in the metropolis were vested in the Metropolitan Board of Works by the Act, gaving it wide powers to maintain and improve them, and for that purpose to carry out works in streets and other land, ‘making compensation for any . .

Cited by:

Cited – Westminster City Council v Ocean Leisure Limited CA 21-Jul-2004
The claimant company owned property next to land which had been acquired to build a new bridge across the Thames. It sought compensation for disturbance to its business from the works.
Held: The state of the law was complicated and . .
Cited – Harper v GN Haden and Sons CA 1932
The occupier of a ground floor and basement shop sought damages from the tenants of the upper floors. In order to construct an additional storey, they had erected scaffolding and a hoarding which obstructed the highway outside the plaintiff’s . .
Cited – Leonidis v Thames Water Authority 1979
Access to the plaintiff’s motor repair business was interfered with by work to reconstruct a sewer. Whilst access was still possible it required a long detour and there was no physical interference with the entrance to the premises.
Held: If a . .
Cited – Manolete Partners Plc v Hastings Borough Council TCC 12-Apr-2013
Application for compensation under s.106 of the Building Act 1984 for compensation as a result of the Council exercising its powers to prevent access to Hastings Pier under s.78 of the 1984 Act.
Held: The court rejected the defence, holding . .
Cited – Manolete Partners Plc v Hastings Borough Council CA 7-May-2014
The claimants appealed from rejection of their claim to compensation under the 1984 Act as tenants of a pier closed by the Authority. The Authority said that it had failed to comply with its leasehold obligations of repair, and was in default under . .
Cited – Hastings Borough Council v Manolete Partners Plc SC 27-Jul-2016
The council appealed against the decision that it is liable to pay compensation under section 106 of the Building Act 1984, for loss to a business on Hastings Pier arising from its closure during 2006 under the council’s emergency powers. The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 June 2022; Ref: scu.200685

Farrar v Farrars Ltd: CA 1888

The mortgagor of a quarry defaulted, and the mortgagees took possession. They were unable to sell the quarry, but formed a company which bought the quarry at a proper value. The mortgagor sought to set aside the sale.
Held: A mortgagee in possession exercises a personal right primarily in his own interests as a mortgagee, The self-dealing rule applies in that a mortgagee cannot exercise the power to sell to himself or to a nominee or to a company of which he is the sole director and shareholder, but he can sell to a company in which he has a significant interest but the onus lies on him to justify the terms of sale. The mortgagees had shown that the sale was made in good faith, and at a proper price; with the consequence that the sale stood.

Citations:

(1888) 40 Ch D 395

Jurisdiction:

England and Wales

Cited by:

Cited – Newport Farm Ltd and 22 others v Damesh Holdings Ltd and others PC 7-Jul-2003
(New Zealand) The clamaints alleged that mortgagees had failed to take proper steps to obtain the best price on selling their properties as mortagees. The common law duty had been encapsulated in the 1952 Act. Here, however the landowners had . .
Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land, Company

Updated: 05 June 2022; Ref: scu.184562

Westminster City Council v Ocean Leisure Limited: CA 21 Jul 2004

The claimant company owned property next to land which had been acquired to build a new bridge across the Thames. It sought compensation for disturbance to its business from the works.
Held: The state of the law was complicated and unsatisfactory. Compensation was in fact payable, though by a circuitous route. There was no special rule applying to hoardings, and the claim succeded. The statutory power given to the local authority necessarily carried also a responsibility toward neighbouring land owners.

Judges:

Potter, Lord Justice Potter Lord Justice Rix Lord Justice Carnwath

Citations:

[2004] EWCA Civ 970, Times 02-Sep-2004

Links:

Bailii

Statutes:

Compulsory Purchase Act 1965 10

Jurisdiction:

England and Wales

Citing:

Cited – Andreae v Selfridge and Co Ltd CA 1938
The plaintiff had a hotel. The rest of the island had been acquired by the defendant which was demolishing and rebuilding the other properties. The plaintiff complained, and the judge found, that by reason of the operations, which involved noise and . .
Cited – Wildtree Hotels Ltd and others v Harrow London Borough Council HL 22-Jun-2000
The compensation which was payable for disturbance, when works were carried out on land acquired compulsorily, did not extend to the damage caused by noise dust and vibration arising from the works. Where however damage could be brought within the . .
Cited – Clift and Another v Welsh Office CA 23-Jul-1998
Whilst it was settled law that no compensation was payable for temporary disturbance to neighbouring land by building works on land compulsorily purchased, as soon as that disturbance came to produce physical damage, compensation became payable. . .
Cited – Caledonian Railway Co v Walker’s Trustees 1882
The court considered the extent of the duty to compensate for disturbance of a business when land was compulsorily purchased. Lord Selborne LC said: ‘The obstruction by the execution of the work, of a man’s direct access to his house or land, . .
Cited – Herring v Metropolitan Board of Works CCP 1865
All the main sewers in the metropolis were vested in the Metropolitan Board of Works by the Act, gaving it wide powers to maintain and improve them, and for that purpose to carry out works in streets and other land, ‘making compensation for any . .
Cited – Lingke v Christchurch Corporation CA 1912
The householder sought compensation under the Act, for the disturbance in the laying of a drain in the highway abutting the claimant’s house and furniture shop. Because of the constraints of the work site, excavated soil had been thrown up against . .
Cited – Rex v Jones 1811
(Year?) A land owner has the right to obstruct the highway for the purpose of repairing his house so long as the inconvenience is ‘necessarily’ so caused and it is not prolonged for an unreasonable time. . .
Cited – Leonidis v Thames Water Authority 1979
Access to the plaintiff’s motor repair business was interfered with by work to reconstruct a sewer. Whilst access was still possible it required a long detour and there was no physical interference with the entrance to the premises.
Held: If a . .
Cited – Harper v GN Haden and Sons CA 1932
The occupier of a ground floor and basement shop sought damages from the tenants of the upper floors. In order to construct an additional storey, they had erected scaffolding and a hoarding which obstructed the highway outside the plaintiff’s . .
Cited – Argyle Motors (Birkenhead) v Birkenhead Corporation HL 1974
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 . .
Appeal from – Ocean Leisure Ltd v Westminster City Council LT 31-Dec-2003
LT COMPENSATION – injurious affection – hoardings erected in street during construction works outside shop premises – preliminary issue – whether claim under Compulsory Purchase Act 1965 s 10 valid – held . .

Cited by:

Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 05 June 2022; Ref: scu.199491

Regina (on the Application of Fuller, Wright, Tarr and Booth) v Chief Constable of Dorset Police and Another: Admn 12 Dec 2001

The applicants sought to test the human rights compatibility of the section when applied to gypsies. The travellers sought to stay on land within the district. The local authority used its policy, and agreed to tolerate the encampment for a short time. There was a serious incident with police officers being held temporarily. After refusing to leave, police raided the encampment. Held The section had to be construed tightly since it created a criminal offence. 61(1) requires that the trespassers have not complied with the occupier’s request that they leave as a condition of the making of a direction by the police The question was not whether the section infringed rights, but whether a direction given under the section was an infringement. A landowner requesting trespassers to remove their goods from his land is not infringing the right to possession of goods. The section provided remedies and was proportionate. Their presence on the land was temporary, and the encampment was not their home within the article, but there could be an interference with family life. In this case though the travellers had not been given opportunity to comply with the request for them to leave, and the reaction of the police was disproportionate. The direction was not valid.

Judges:

Justice Stanley Burnton

Citations:

[2001] EWHC Admin 1039

Links:

Bailii, Bailii, Bailii

Statutes:

Criminal Justice and Public Order Act 1994 61

Jurisdiction:

England and Wales

Crime, Human Rights, Land

Updated: 05 June 2022; Ref: scu.167345

Lloyd and others v Dugdale and Another: CA 21 Nov 2001

The claimants asserted a right to possession of land, and the defendant resisted, claiming a proprietary estoppel. A predecessor had intended to grant a sub-lease to the defendant, who had arranged for his company JAD Ltd to execute major works on the strength of that promise. JAD was given permission to store items there, but JAD Ltd took up possession. The sub-lease was never signed. The head-lease was assigned to the claimants, subject to any rights of the defendants.
Held: No notice was effective. Whatever estoppel arose, was in favour of JAD, not his company, and it was in possession, not him. The assignment defeated the claim of JAD Ltd by section 20. No constructive trust arose, because the claimant’s conscience was not deemed to be affected.
The court set out the principles applying: ‘(1) Even in a case where, on a sale of land, the vendor has stipulated that the sale shall be subject to stated possible incumbrances or prior interests, there is no general rule that the court will impose a constructive trust on the purchaser to give effect to them.
(2) The court will not impose a constructive trust in such circumstances unless it is satisfied that the conscience of the estate owner is affected so that it would be inequitable to allow him to deny the claimant an interest in the property.
(3) In deciding whether or not the conscience of the new estate owner is affected in such circumstances, the crucially important question is whether he has undertaken a new obligation, not otherwise existing, to give effect to the relevant encumbrance or prior interest. If, but only if, he has undertaken such a new obligation will a constructive trust be imposed.
(4) Notwithstanding some previous authority suggesting the contrary, a contractual licence is not to be treated as creating a proprietary interest in land so as to bind third parties who acquire the land with notice of it, on this account alone: see Ashburn Anstalt v Arnold . .
(5) Proof that the purchase price by a transferee has been reduced upon the footing that he would give effect to the relevant encumbrance or prior interest may provide some indication that the transferee has undertaken a new obligation to give effect to it: see Ashburn Anstalt v Arnold . . However, since in matters relating to the title to land certainty is of prime importance, it is not desirable that constructive trusts of land should be imposed in reliance on inferences from ‘slender materials’.’

Judges:

Lord Justice Kennedy, Lord Justice Mummery, And, Sir Christopher Slade

Citations:

Gazette 06-Dec-2001, [2001] EWCA Civ 1754, [2002] 2 PandCR 13, [2001] 48 EGCS 129, [2001] NPC 168, [2002] WTLR 863

Links:

Bailii

Statutes:

Law of Property Act 1925 20(1) 70(1)(g)

Jurisdiction:

England and Wales

Citing:

Applied – Ashburn Anstalt v Arnold (1) CA 27-Oct-1987
Houses in Kensington were let together for a term of just over 50 years. There was just one title for the headlease. Informal subleases of parts had been granted granted at no rent. After several dealings with the titles, and the plaintiffs came to . .
Applied – Strand Securities Ltd v Caswell CA 2-Feb-1965
The leaving of furniture in a flat or having a key to the flat or making occasional use of it was not enough to constitute actual occupation. Where A permits B to occupy land on B’s own behalf by way of gratuitous licence, A’s capacity as licensor . .
Cited – Williams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980
Wife in Occupation had Overriding Interest
The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding . .

Cited by:

Cited – Chaudhary v Yavuz CA 22-Nov-2011
The court was asked ‘whether and if so how an easement arising informally and not protected by any entry at the Land Registry can be effective against a purchaser of the land over which the easement would be exercised.’ The parties respectively . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Estoppel, Land, Contract, Trusts

Updated: 05 June 2022; Ref: scu.166930

AIB Group (UK) Plc (Formerly Allied Irish Banks Plc and AIB Finance Limited) v Martin and Another: HL 13 Dec 2001

Where a mortgage was taken out by business partners, their liability was joint and several. Partners had taken out a loan, but the terms of the mortgage appeared to make each debtor liable for all sums due from either of them, including for debts to the mortgagee unconnected with the business. Under the clause they had covenanted to pay ‘all sums of money . . advanced to the mortgagor by the bank.’ The term mortgagor meant the two of them and/or each of them. So they had covenanted to pay all sums of money advanced by the bank to the two of them and/or to either of them.

Judges:

Lord Irvine of Lairg, Lord Chancellor, Lord Hutton, Lord Millett, Lord Scott of Foscote and Lord Rodger of Earlsferry

Citations:

Times 17-Dec-2001, Gazette 14-Feb-2002, [2001] UKHL 63, [2002] 1 WLR 94 (HL)

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Mallan v May 1844
The court considered the possible consequences of interpretation of a contract: ‘We must apply the ordinary rules of construction to this instrument; and though, by so doing, we may, in some instances, probably in this, defeat the real intention of . .
Cited – Wright v Tennent Caledonian Breweries Ltd IHCS 1991
The court sought to construe a deed of variation of a loan agreement. In the case of two or more individuals, the obligations and conditions affecting the borrower were to be binding on the individuals ‘jointly and severally’. Despite this, one of . .

Cited by:

Cited – Royal Bank of Scotland Plc v Wilson and Another SC 24-Nov-2010
(Scotland) Neighbours had each granted a standard security over their respective properties to the bank. The charge agreements contained personal covenants to repay the sums borrowed on demand. The land-owners appealed against an order for . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 June 2022; Ref: scu.167007

Mortgage Corporation Ltd v Shaire and Another: ChD 25 Feb 2000

The claimant had an equitable charge over the property, and sought a possession order after failures to keep up repayments. The order was sought under the Act, and the claimants asserted that the conditions for the grant of possession were unchanged.
Held: Parliament had clearly intended a change. The interests of a chargee ranked alongside those of, for example, children living in the house. This might act to the detriment of banks, and the old authorities, whilst not entirely irrelevant, should be viewed with caution. Where the parties have reached a consensus on the beneficial interests in the property, the court will give effect to it, unless there is very good reason for not doing so, such as a subsequent renegotiation.

Judges:

Neuberger J

Citations:

Gazette 16-Mar-2000, Times 21-Mar-2000, [2000] 1 FLR 973, [2001] Ch 743, [2000] EWHC Ch 452

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 14 15, Law of Property Act 1925 30

Jurisdiction:

England and Wales

Cited by:

Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Land, Banking, Trusts

Updated: 05 June 2022; Ref: scu.83867

Delaware Mansions Limited and others v Lord Mayor and Citizens of the City of Westminster: HL 25 Oct 2001

The landowner claimed damages for works necessary to remediate damage to his land after encroachment of tree roots onto his property.
Held: The issue had not been properly settled in English law. The problem was to be resolved by applying a standard of reasonableness as between neighbours. Damage consisting of impairment of the load-bearing qualities of residential land was itself a nuisance. If there is a continuing nuisance of which the defendant knew or ought to have known, reasonable remedial expenditure could be recovered. The judgments in Goldman and the Wagon Mound ‘are directed to what a reasonable person in the shoes of the defendant would have done. The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour’s duty rather than affixing a label and inferring the extent of the duty from it. Even in the field of Rylands v Fletcher (1868) LR 3HL 330 strict liability the House of Lords in [Cambridge Water] has stressed the principles of reasonable user and reasonable foreseeability: see the speech of Lord Goff of Chieveley, at pp 299-301. It was the absence of reasonable foreseeability of harm of the relevant type that excluded liability in that case’.
Lord Cooke of Thorndon said that in tree root cases, the question remains whether the Defendant has acted reasonably: ‘The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour’s duty rather than affixing a label and inferring the extent of the duty from it.’

Judges:

Lord Steyn, Lord Browne-Wilkinson, Lord Cooke of Thorndon, Lord Clyde and Lord Hutton

Citations:

Times 26-Oct-2001, Gazette 22-Nov-2001, [2002] 1 AC 321, [2001] UKHL 55, [2001] 4 All ER 737, 79 Con LR 39, [2001] 3 WLR 1007, [2002] TCLR 8, [2001] 44 EGCS 150, [2002] BLGR 1, [2002] BLR 25, [2001] NPC 151

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
Appeal from – Delaware Mansions Limited, Flecksun Limited v The Lord Mayor and Citizens of The City of Westminster CA 21-Jul-1999
A number of blocks of mansion flats in Maida Vale were damaged by the root action of a plane tree for which the council were responsible. The freehold in the blocks, known as Delaware Mansions, was sold by the Church Commissioners to the second . .
Cited – Leakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .
Cited – Goldman v Hargrave PC 13-Jun-1966
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would . .
Cited – Cambridge Water Company v Eastern Counties Leather Plc HL 9-Dec-1993
The plaintiffs sought damages and an injunction after the defendant company allowed chlorinated chemicals into the plaintiff’s borehole which made unfit the water the plaintiff itself supplied.
Held: The appeal was allowed. Liability under . .
Cited – Solloway v Hampshire County Council CA 1981
Tree root damage had occurred following two successive very hot and dry summers in 1975 and 1976, in an area where the subsoil was almost all gravel but where, as it happened, under the plaintiff’s house there were pockets of clay. An issue arose as . .

Cited by:

Cited – Loftus-Brigham and Another v London Borough of Ealing CA 28-Oct-2003
The claimants sought to recover for damages caused to their house foundations by trees growing nearby which were the responsibility of the defendants. The defendants replied that the damages was caused in part by roots from virgina creeper and . .
Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Cited – Moiz Ahmed Siddiqui, Ishrat Siddiqui/Bhajan Singh Sohanpal v Council of the London Borough of Hillingdon TCC 15-Apr-2003
The claimants sought damages for cracks in their house caused by the roots of trees on the defendant’s land.
Held: The claimants had failed to establish by evidence that the tree roots were the cause of the damage. The claim failed. . .
Cited – Kirk and others v London Borough of Brent CA 8-Dec-2005
The defendant council had obtained a strike out of the claimant’s assertion that they were responsible in nuisance for damages caused by tree roots.
Held: The claimant’s appeal against the striking out of his claim succeeded. While the simple . .
Cited – Perrin and Another v Northampton Borough Council and others CA 19-Dec-2007
The land owners had sought permission to fell an oak tree subject to a tree preservation order in order to prevent further damage from its roots.
Held: The council’s appeal succeeded. The court was asked to decide whether any works to the tree . .
Cited – Berent v Family Mosaic Housing and Others TCC 25-May-2011
The claimant sought damages for subsidence to her property allegedly caused by the roots of trees on the defendants’ properties. Two large plane trees stood in the pavement outside the house and about 12 metres from it. . .
Cited – Robbins v London Borough of Bexley CA 17-Oct-2013
The claimant said that his house had been damaged by tree roots for which the appellant was responsible. The trees were 33 metres from the house.
Held: The appeal failed. The immediate cause of the damage was a failure to do something which . .
Cited – Network Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Land, Negligence

Updated: 04 June 2022; Ref: scu.166700

National Westminster Bank Ltd v Allen: ChD 1971

The defendants, a husband and wife, were jointly and severally liable on two joint accounts which were overdrawn. The defendants were joint owners of a house property as joint tenants holding on trust for sale. The plaintiff was seeking a charging order nisi. A charging order was made on land owned by husband and wife jointly who were joint tenants and who both jointly owned a debt to the creditor. The defendants, acting together, were perfectly entitled to charge their land and as the plaintiffs were seeking to charge that which the defendants could validly charge, namely, their joint legal interest in the land, it was proper to make a charging order.

Judges:

Waller J

Citations:

[1971] 2 QB 718

Statutes:

Administration of Justice Act 1956 35

Jurisdiction:

England and Wales

Citing:

Distinguished – Irani Finance Ltd v Singh CA 1970
Two brothers had acquired land as joint tenants with the aid of a mortgage. Distinct orders were made against each of them charging their respective interests in the land. The mortgagee assigned the mortgage. The brothers held under a trust for . .

Cited by:

Cited – Clark and Another v Chief Land Registrar and Another ChD 2-Dec-1992
The defendant had made a mistake resulting in an equitable chargee not being given proper opportunity to object to the registration of a further charge with priority. The chargee sought compensation from the defendant registrar.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 June 2022; Ref: scu.536058

Lohia and Another v Lohia: ChD 7 Sep 2000

Land was transferred from son to his father with no consideration expressed. The father died and the son claimed that the absence of consideration meant that the house was to be held upon trust for the donor and donee as beneficial joint tenants in equal shares, and that accordingly upon the death of the father he was entitled to his share.
Held: The section was clear and that a conveyance for nil value meant what it said. A person seeking to establish a resulting trust had to prove it. The voluntary conveyance was effective in the terms in which it was expressed.

Citations:

Gazette 07-Sep-2000

Statutes:

Law of Property Act 1925 60 (3)

Jurisdiction:

England and Wales

Land, Trusts

Updated: 04 June 2022; Ref: scu.83151

London Borough of Lambeth v Vincent and Others: ChD 16 Mar 2000

The buyers agreed to purchase a property at auction, but having failed to complete they were served with a notice to complete. They challenged that notice saying there was an outstanding writ for possession against the property, and that ministerial consent had not been obtained for the sale. It was held that the claim for forfeiture did not bring the lease to an end, and in this case was clearly unsustainable in law. Nor did the lack of ministerial consent vitiate the lease. The challenges did not go to title and the notice to complete stood.

Citations:

Gazette 16-Mar-2000, Times 29-Mar-2000

Statutes:

Housing Act 1985 32 (3)

Jurisdiction:

England and Wales

Land

Updated: 04 June 2022; Ref: scu.83164

Chassagnou and Others v France: ECHR 29 Apr 1999

A law permitted local authorities to oblige landowners to transfer hunting rights over private land to approved hunting associations. The landowners could not prevent hunting on their property. Landowners so affected were made members automatically of the hunting association so that they could now hunt over other land also subject to the same new access provision. There was also some compensation for those who thereby had lost a source of actual income.
Held: The law made no provision for those wishing to prevent use of their lands for hunting. There was an interference with the right to use property and ccordingly had to decide whether, in the absence of compensation for those opposed to hunting over their land, the control of use was disproportionate. ‘In conclusion, notwithstanding the legitimate aims of the Loi Verdeille when it was adopted, the Court considers that the result of the compulsory-transfer system which it lays down has been to place the applicants in a situation which upsets the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others can make use of them in a way which is totally incompatible with their beliefs imposes a disproportionate burden which is not justified under the second paragraph of Article 1 of Protocol No. 1. There has therefore been a violation of that provision.’ There was unjustified discrimination in that large landowners did have the right to object to their land being used in that way and so only those who had larger holdings were entitled to use their land in accordance with their conscience.

Judges:

Wildhaber P

Citations:

25088/94, (1999) 29 EHRR 615, 28331/95, [1999] ECHR 22, 28443/95

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 814

Jurisdiction:

Human Rights

Cited by:

Cited – Adams and Others v Lord Advocate IHCS 31-Jul-2002
(Opinion) The applicants challenged the introduction of restrictions of hunting by foxes, arguing that the law would infringe their human rights.
Held: The Act was not infringing. Fox hunting as such was not a private activity protected by the . .
Cited – Trailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature QBD 6-Feb-2004
The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human . .
Cited – Whitmey, Regina (on the Application of) v the Commons Commissioners CA 21-Jul-2004
The applicant sought to leave to appeal against refusal of his challenge to the registration of land as a green.
Held: The 1965 Act did not limit the registration of greens to those which were registered by 3 January 1970. The Commons . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
Cited – Connolly v Director of Public Prosecutions Admn 15-Feb-2007
The defendant appealed against her conviction under the Act for having sent indecent or grossly offensive material through the post in the form of pictures of an aborted foetus sent to pharmacists. She denied that they were offensive, or that she . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – John v Germany ECHR 2006
The court considered the operation of post-reunification German land re-organisation: ‘The Court reiterates that an interference with the peaceful enjoyment of possessions must strike a ‘fair balance’ between the demands of the general interest of . .
Cited – Cusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Land

Updated: 04 June 2022; Ref: scu.165704

Ludlam v Courtman and Another: ChD 25 Mar 2011

Mr L and his trustees in bankruptcy disputed beneficial ownership of a plot of land. There were said to have been historical dealings with the land but the documents had been lost. Their application to the Land Registry had been rejected.
Held: Though the claimants had been unable to establish any ownership sufficient to justify an injunction, Mrs L had better title than the trustee in bankruptcy.

Judges:

Briggs J

Citations:

[2011] EWHC 742 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 04 June 2022; Ref: scu.430855

Ridgewood Properties Group Ltd and Another v Kilpatrick Stockton Llp and Others: ChD 25 Jul 2014

Application by the Defendants to strike out a paragraph of the Particulars of Claim on the ground that it is an abuse of process because it amounts to a collateral attack upon findings made by Proudman J in three judgments in previous proceedings, alternatively for summary judgment on the ground that the plea has no real prospect of success.

Judges:

Arnold J

Citations:

[2014] EWHC 2502 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, land

Updated: 04 June 2022; Ref: scu.535303

Goomti Ramnarace v Harrypersad Lutchman: PC 21 May 2001

(Trinidad and Tobago) The defendant had gone into possession of land by consent, and many years later declined to leave. The claimant said the period of her adverse possession was insufficient but she claimed a tenancy. The claimant asserted that she had gone into possession as a licensee, and that the limitation period could not commence until her licence was terminated. Adverse possession is possession inconsistent with and in denial of the title of the true owner. A person cannot be a tenant at will where it appears that there was no intention to create legal relations, and she must be taken to have entered into possession of the disputed land in July 1974 as an intending purchaser and as a tenant at will. That tenancy expired after one year, when the limitation period commenced. Her claim succeeded.

Judges:

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Millett, Lord Scott of Foscote

Citations:

[2001] UKPC 24, No 8 of 2000

Links:

Bailii, PC, PC

Statutes:

Real Property Limitation Ordinance 1940

Citing:

Cited – Heslop v Burns CA 1974
The defendants had lived in a house rent free for a long period. After the owner died, his executors sought possession saying the defendants were mere licencees. The defendants claimed a tenancy at will, and that the right now asserted was statute . .
Cited – Moses v Lovegrove CA 29-Apr-1952
The tenant had gone into possession under an oral agreement with a rent book. He ceased to pay rent or acknowledge the landlord’s right in 1938. In 1952 the landlord sought to recover possession, and now appealed a finding that the tenant had . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Commonwealth

Updated: 04 June 2022; Ref: scu.163293

Snell v Beadle (nee Silcock): PC 29 Jan 2001

(Jersey) The parties had entered into an agreement giving vehicular rights of way over B’s land. She alleged however that she had been misled into signing it. S sought to enforce it. Jersey law still depended upon the customary law of Normandy, and it is not legitimate to import the principles of English law into Jersey law relating to property rights. Such a contract could only be set aside, if the value paid was less than half the value of what was conveyed. It was argued that this right only attached to contracts where the value was readily ascertainable.
Held: No juste prix for the servitude right could be determined objectively and in good faith, and the remedy for deception d’outre moitie did not apply.

Judges:

Lord Hope of Craighead, Lord Cooke of Thorndon, Lord Hutton, Lord Millett, Sir Ivor Richardson

Citations:

[2001] UKPC 5, Appeal No 19 of 2000

Links:

Bailii, PC

Citing:

Cited – Godfray v Godfray PC 1865
It is not legitimate to import the principles of English law into Jersey law relating to property rights, even if in any case this could be done. . .
Lists of cited by and citing cases may be incomplete.

Land, Commonwealth

Updated: 04 June 2022; Ref: scu.163273

Dutton and Dutton v Dutton and Brown: ChD 3 Feb 2000

An option was granted by the will. Its validity was challenged because of difficulties in the method of reaching a valuation. It was occupied and it could not be agreed whether an assumption was to be made that the occupier would consent to the sale.

Judges:

Honourable Mrs Justice Arden DBE

Citations:

[2000] EWHC Ch 167

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Day v Trig 1715
The testator had made a testamentary gift of his freehold houses in Aldersgate Street, when he had only leasehold properties there, the word ‘freehold’ was rejected. The court stated that it would not have done this if there had also been freehold . .
Cited – Re Malpass ChD 1985
The testator gave an option to his son to purchase his farm ‘at the agricultural value thereof determined for probate purposes . . as agreed with the district valuer’. The district valuer would not participate in this valuation.
Held: The . .
Cited – Sudbrook Trading Estate v Eggleston HL 1983
An option was granted to purchase the reversion conferred on the lessees under certain leases. The price was be not less than andpound;12,000, and it was to be fixed by valuers appointed by each party and default of agreement it was to be fixed by . .
Cited – Re Fleming’s Will Trusts 1974
By his Will made in 1969, the testator bequeathed to the first defendants his leasehold house at Narcissus Road. The house was than held under a lease term expiring on 28th September, 2008 subject to covenants to repair. In April 1971, the testator . .
Cited – Re Hammersley 1965
A court will not speculate as to a testator’s intentions if they cannot be ascertained. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Land

Updated: 04 June 2022; Ref: scu.162985

Spiro v Glencrown Properties Ltd and Another: ChD 1991

The court considered the nature of an option to buy land. Hoffman J said: ‘The granting of the option imposes no obligation upon the purchaser and an obligation upon the vendor which is contingent upon the exercise of the option. When the option is exercised, the vendor and purchaser come under obligations to perform as if they had concluded an ordinary contract of sale . . The exercise of an option is a unilateral act. It would destroy the very purpose of the option if the purchaser had to obtain the vendor’s counter signature to the notice by which it was exercised.’
The exercise of an option by notice does not make the notice a contract. The courts have moved away from construing an option as an irrevocable offer as opposed to a conditional contract which arises only when the grantee seeks to exercise unilaterally the option.
Hoffman J spoke as to the Law Commissions report leading to the 1989 Act: ‘The recommendation that contracts relating to land should be incorporated in a signed document which contains all the terms was, clearly, intended to promote certainty. There is no reason why certainty should be any less desirable in relation to arrangements for security over land than in relation to any other arrangements in respect of land. The present case itself illustrates the need to be able to identify the obligation which is to be secured. I do not find it surprising that Parliament decided to enact legislation which would be likely to have the effect of avoiding disputes on oral evidence as to the obligations which the parties intended to secure’.

Judges:

Hoffman J

Citations:

[1991] Ch 537, [1991] 1 All ER 600, [1991] 2 WLR 931

Statutes:

Law of Property Act 1925 40, Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Cited by:

Cited – Irwin v Wilson and Others ChD 23-Feb-2011
The claimant sought a declaration that his contract for the sale of leasehold property to the defendants had been lawfully terminated by a letter from his solicitors. The defendants had moved in before completion, but the claimant found himself . .
Cited – United Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
Cited – Sharma and Another v Simposh Ltd CA 23-Nov-2011
The parties created an oral (and therefore void) contract for a development, the claimants paid a deposit, expressed to be non-refundable, and the defendant builders completed the building work. The buyers backed out. The developer now appealed . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 04 June 2022; Ref: scu.430311

Various Mortgagors v Various Mortgagees and Others: ChD 19 Nov 2010

Land owners had entered into sale and rentback agreements. The buyers had taken out loans to complete the purchasers, but had then defaulted, having misrepresented the nature of the agreements to their lenders and the sellers. The lenders now brought possession actions.
Held: The court made the orders for possession following determination of three preliminary issues in nine test cases. In short, he considered that the effect of the Land Registration Act 2002 and case law, including in particular Abbey National Building Society v Cann [1991] 1 AC 56, meant that the mortgagees’ right to enforce their security has priority over the rights of the vendors to remain in occupation of their homes and there was no legal defence to the mortgagees’ claims for possession.

Judges:

Behrens J

Citations:

[2010] EWHC 2991 (Ch)

Links:

Bailii

Statutes:

Land Registration Act 2002

Jurisdiction:

England and Wales

Citing:

Cited – Abbey National Building Society v Cann HL 29-Mar-1990
Registered land was bought with an advance from the plaintiff. The transfer and charge were registered one month later, but in the meantime, the buyer’s parents moved in. When the buyer defaulted, his mother resisted possession proceedings, saying . .
Lists of cited by and citing cases may be incomplete.

Land, Registered Land

Updated: 04 June 2022; Ref: scu.430492

Naylor v Essex County Council: Admn 28 Jul 2014

Claim for judicial review impugning the decision of the Development and Regulation Committee of Essex County Council, taken on February 22nd 2013, not to register an area of land in Walton on the Naze as a Town or Village Green

Judges:

John Howell QC

Citations:

[2014] EWHC 2560 (Admin)

Links:

Bailii

Statutes:

Commons Act 2006 15(2)(a)

Jurisdiction:

England and Wales

Land

Updated: 04 June 2022; Ref: scu.536175

St Edmundsbury v Clark (No 2): ChD 1973

Megarry J described the presumption that a conveyance of land abutting a highway or river passes with it the the adjoining half of that road or river: ‘Various reasons had been given for the presumption. It has been based on convenience and the prevention of disputes, and in the case of public highways on a supposition that the proprietors on each side of the road each contributed half of it. Theobald’s Law of Land, 2nd ed. (1929), p. 235, states:
‘It is unlikely that the grantor intended to reserve the narrow strip under the road or stream ad medium filum; there is therefore a presumption that such strip was intended to pass, but the presumption may be rebutted by the language of the conveyance, or the surrounding circumstances.’
This, perhaps, is an expansion of ‘convenience’: it also may be based on intention. It seems in some degree improbable that a grantor of land should intend to retain for himself an adjoining long thin strip of land over which there is a public highway or an easement of way. When from a practical point of view such a strip of land is unlikely ever to be capable of beneficial enjoyment by anyone save the grantee of the adjoining land and his successors in title, not only is it improbable that the grantor intended to retain the strip but also it would not be very long before serious difficulties in tracing the title to the strip might arise. As Lord Moulton said in City of London Land Tax Commissioners v Central Railway Co [1913] AC 364, 384, ‘The law cannot permit that the land under the highway should belong to nobody.’ This consideration seems to me to apply with equal force whether the thin strip is subject to a highway or an easement of way over its whole width, or whether the way merely runs down the middle with thinner strips on each side of it. ‘

Judges:

Megarry J

Citations:

[1973] 1 WLR 1572

Jurisdiction:

England and Wales

Cited by:

Appeal from – St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA 1973
When looking at a contract ‘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 surrounding circumstances.’
The contra preferetem rule can only come into play . .
Cited – Paton and Another v Todd ChD 11-May-2012
The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to land which was registered to the respondent neighbour.
Held: The claimant’s . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 June 2022; Ref: scu.515412

Todd, Bradley v The Secretary of State for Environment Food and Rural Affairs: Admn 22 Jun 2004

Application was made to quash an order modifying the Council’s definitive map of public rights of way.
Held: Before the Secretary of State could confirm a Council’s modification of a right of way shown on the definitive map, where that modification was opposed, she had to be satisfied on the balance of probabilities that the right subsisted. Evans-Lombe J quashed the order.

Judges:

The Hon Mr Justice Evans-Lombe The Hon Mr. Justice Moore-Bick

Citations:

[2004] EWHC 1450 (Admin), Times 06-Jul-2004, [2004] 1 WLR 2471, [2005] 2 PLR 1, [2004] 4 All ER 497

Links:

Bailii

Statutes:

Wildlife and Countryside Act 1981 53 Sch15

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Environment ex parte Hood CA 1975
The court considered the nature of the 1949 Act: ‘The object of the statute is this: it is to have all our ancient highways mapped out, put on record and made conclusive, so that people can know what their rights are. Our old highways came into . .
Cited – Leicestershire County Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs Admn 20-Jan-2003
Application was made to modfy the definitive map, moving a right of way by removing the right over one plot of land and creating another over other land. . .
Cited – Regina v Secretary of State for the Environment Ex Parte Bagshaw, Regina v Sane Ex Parte Norton and Bagshaw QBD 6-May-1994
Mr Bagshaw sought an order modifying the definitive map and statement to show a former mine track as a public right of way.
Held: A claimant seeking to establish a public path had to show evidence in support or that it was reasonable to make . .
Cited – Suffolk County Council v Mason HL 1979
The House considered the status of a pedestrian right of way through a caravan site to a beach, and the 1949 Act: ‘The sections which follow section 27 deal with the further steps which have to be taken before the definitive map is completed and . .
Cited – Eyre v New Forest Highway Board 1892
Wills J said: ‘All highways, all rights of passage over the property of individuals, have their actual or presumed origin, although it is not often the origin in point of fact, in a dedication by the owner of the soil, that is to say he either says . .
Cited – Fairmount Investments Ltd v Secretary of State for the Environment HL 1976
A local authority had made a compulsory purchase order which was challenged and an inquiry was held. The inspector, after the conclusion of the hearing, conducted his own inspection of the premises as a result of which he concluded that the . .
Cited – Shears Court (West Mersea) Management Company Ltd v Essex County Council ChD 1986
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. . .
Cited – Suffolk County Council v Mason HL 1979
The House considered the status of a pedestrian right of way through a caravan site to a beach, and the 1949 Act: ‘The sections which follow section 27 deal with the further steps which have to be taken before the definitive map is completed and . .

Cited by:

Cited – Jones v Welsh Assembly Government Admn 15-Dec-2008
The County Council had made an order under section 53, establishing a footpath over the claimant’s land. The land owner now appealed. The court had previously quashed the inspector’s decision on the basis that he had not allowed for the interruption . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 June 2022; Ref: scu.198299

Paragon Finance plc v City of London Real Property Co Ltd: ChD 16 Jul 2001

The claimants were underlessees of an office building. The offices had enjoyed a right of light for over a hundred years, and the freehold had acquired an easement of light by lost modern grant. The roadway having been closed, the defendant head landlords intended to build in a way which would interfere with the right. The defendants said that the rights were excluded by the express terms of the lease. The claimants said the building would be a breach of their right to quiet enjoyment of the appurtenances to the property.
Held: In granting a lease, a landlord could reserve the right to develop his own land as he wished, and thus to impinge on the tenant’s right of quiet enjoyment, but he could not require such a reservation in favour of land he did not own. In this case, the demised premises had acquired an easement of light under the doctrine of lost modern grant, and the lease purported to permit any development of adjoining land. The landlord and adjoining landowner proposed development, which would interfere with the right, and the tenant sought an order restraining them. The order was given, on summary judgment, as against the land-owner who was not his landlord.

Judges:

Rich QC

Citations:

Times 20-Aug-2001, Gazette 13-Sep-2001, [2001] EWHC Ch 483

Links:

Bailii

Statutes:

Prescription Act 1832 3 4

Jurisdiction:

England and Wales

Citing:

Cited – Overcom Properties v Stockleigh Hall Residents Management Ltd ChD 1988
The lease granted the defendants rights of access over the grounds and forecourts of a block of flats, but reserving to the lessor the right to develop ‘notwithstanding that the access of light or air or any other easement appertaining to the flat . .
Cited – William Hill (Southern) Limited v Cabras CA 1986
The tenant had affixed a sign to the premises with the landlord’s consent. The new landlord said that any licence was revocable. The judge had held that the lease had specifically granted a right to exhibit the signs.
Held: The landlord’s . .
Cited – Foster v Lyons and Co 1927
The lease contained a reservation which would allow the freeholder to build upon his neighbouring land whether or not it obstructed any rights of light in the demised premises.
Held: The reservation was effective to prevent a right of being . .
Lists of cited by and citing cases may be incomplete.

Land, Landlord and Tenant

Updated: 04 June 2022; Ref: scu.160182

Manchester and District Housing Association v Fearnley Construction Ltd (In Voluntary Liquidation) and Another: ChD 17 Aug 2000

The defendant builder contracted to build on and then convey the land and building to the claimant. The builder charged the land, but failed to complete the building, and went into liquidation. The claimant sought specific performance with a reduction of the purchase price reflecting the breach. The builder asserted that the obligation to sell only arose on the completion of the building. It was held that the claimant was entitled to the land, since the builder could not rely upon his own fault. Any conditionality was gone once the building work began.

Citations:

Gazette 17-Aug-2000

Jurisdiction:

England and Wales

Construction, Land

Updated: 04 June 2022; Ref: scu.83364

Aero Properties Ltd and Another v Citycrest Properties Ltd and Another: ChD 6 Feb 2002

Contracts were entered into for the sale of five flats. Completion of each contract was conditional upon simultaneous completion of the others. Completion did not occur, and the defendant sellers issued a notice to complete, then rescinded the contract, and forfeited the deposits. The claimants requested a declaration that the completion notices were invalid, and sought specific performance. They appealed a dismissal of the claim.
Held: The sellers did not have to be exactly able to complete when the notice to complete was issued; it was sufficient that the vendor should ‘be able within the time reasonably required to do so to set up the necessary administrative arrangements to enable completion to take place.’ It was for the purchaser to show that the seller was in some way in breach of the contract, or would not be able to complete within the time set. The evidence did not meet that standard.

Judges:

Blackburne J

Citations:

Gazette 21-Feb-2002, [2000] 2 P and CR 21

Jurisdiction:

England and Wales

Citing:

Considered – Edwards v Marshall Lee ChD 1975
The parties contracted for the sale and purchase of land. A mortgage receipt was executed by a different company (Barclays Bank Trust Co ltd, not Barclays Bank Ltd) and therefore did not operate as a statutory receipt to discharge it. The plaintiff . .
Cited – Dimsdale Developments (South East) Ltd v De Haan 1983
The court considered the interpretation of clauses allowing a notice to complete a contract for the sale of land. Godfrey QC said: ‘In my judgment this notice, served as it was under cover of the letter of November 10, 1981, referring to the . .

Cited by:

Cited – Kalatara Holdings Ltd v Benedict Thomas Andersen and Another Chd 25-Jan-2008
The claimant sought specific performance of a contract to buy land from the defendant. The defendant sought summary dismissal of the claim and forfeiture of the deposit. It had been intended that the property would be ‘rolled over’ on a sub-sale. . .
Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 04 June 2022; Ref: scu.167652

Elite Embroidery Ltd v Virgin Media Ltd: UTLC 31 Oct 2018

Electronic Communications Code – Jurisdiction – whether loss caused by failure to comply with old Code agreement may be subject of claim for compensation under new Code – paragraphs 84, 85 Electronic Communications Code – Schedule 3A, Communications Act 2003 – paragraph 14, Schedule 2, Digital Economy Act 2017 – notice of reference struck out

Citations:

[2018] UKUT 364 (LC)

Links:

Bailii

Statutes:

Electronic Communications Code 2017, Digital Economy Act 2017

Jurisdiction:

England and Wales

Utilities, Land

Updated: 03 June 2022; Ref: scu.628037

Pollard and Another v Ashurst: ChD 16 Mar 2000

Where a bankrupt was joint owner of property abroad but within the European Community, an English court could order the property to be sold and the proceeds paid to the trustee. Such an order could not be made against the land itself, but could be effective against the bankrupt in personam. The bankrupt and his wife could be ordered to sell the property at the best price reasonably obtainable, or to require the conveyance of the property to the trustee.

Citations:

Times 16-Mar-2000

Statutes:

Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) (Cmnd 7395), Insolvency Act 1986 436

Jurisdiction:

England and Wales

Insolvency, International, Land

Updated: 03 June 2022; Ref: scu.84787

Doherty v Birmingham City Council and Another: CA 21 Dec 2006

The council sought possession of the land occupied by the appellant, a traveller, so that it could use the land for temporary accomodation for other travellers.

Judges:

Tuckey, Carnwath, Neuberger LJJ

Citations:

[2006] EWCA Civ 1739, [2007] BLGR 165

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Doherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
Lists of cited by and citing cases may be incomplete.

Land, Local Government, Human Rights

Updated: 02 June 2022; Ref: scu.247497

West Bromwich Building Society v Wilkinson: HL 30 Jun 2005

The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation under s20. The Society said that the debt was a judgment debt which was no longer due under s20, but was now and action on a speciality under s8, for which the limitation period is also 12 years, but the date from which it commenced differed.
Held: The lender’s appeal was dismissed. Putting aside actions for the recovery of land, where questions of title are involved, English law attributes periods of limitation by reference to the cause of action which the claimant seeks to enforce. Lord Hoffmann: ‘ordinarily time will run from the moment when the cause of action designated by the appropriate rule has arisen. It would be strange if the lender could then stop time running by his own act in exercising the power of sale. If, therefore, the cause of action when it arose was a claim to a debt secured on a mortgage, I do not think section 20 ceases to apply when the security is subsequently realised.’ The deed provided that until an event of breach occurred, the power of sale might not be exercised, and the money was not repayable. On this basis the cause of action would have arisen under either section more than 12 years before the action.

Judges:

Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell

Citations:

[2005] 1 WLR 2303, Times 04-Jul-2005, [2005] UKHL 44

Links:

Bailii, House of Lords

Statutes:

Limitation Act 1980 20(1) 8(1)

Jurisdiction:

England and Wales

Citing:

Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .
Appeal from – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – Global Financial Recoveries Ltd v Jones ChD 13-Jan-2000
The defendant entered into a mortgage loan. The property was repossessed and he faced an action for recovery of the shortfall. It was argued that the claim was out of time after six years. The court held that the debt remained a specialty debt and . .
Cited – Scottish Equitable Plc v Thompson and Another CA 6-Feb-2003
The mortgage deed, which was a second mortgage, did not contain any express covenant to repay the principal sum, but only for monthly interest instalments with no element of capital repayment, since the principal was to be paid from an insurance . .
Approved – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Cited – Twentieth Century Banking Corporation Ltd v Wilkinson ChD 1977
Property was charged in 1973. The principal was be repayable in 1988 with interest. There was no provision by which a default made the power of sale exercisable or the advance repayable. When the borrower defaulted, the mortgagee had to apply to . .
Cited – Hornsey Local Board v Monarch Investment Building Society CA 1889
The local authority had incurred expense in paving a street. They were entitled to apportion those expenses amongst the owners of the properties fronting onto that street and summarily to recover from the respective owners the amounts so . .

Cited by:

Cited – Doodes v Gotham, Perry ChD 17-Nov-2005
The trustee in bankruptcy had taken a charge on the property in 1992 to support the bankruptcy in 1988. He sought to enforce it in 2005. The chargor appealed an order which denied he was protected by limitation.
Held: The appeal succeeded. . .
Cited – Littman and Another v Aspen Oil (Broking) Ltd CA 19-Dec-2005
A lease had been granted with a break clause, which the tenant exercised. The Landlord said it had not complied with its obligations and was not free to exercise that clause. The clause had included the word ‘landlord’ where it should have read . .
Cited – KPMG Llp v Network Rail Infrastructure Ltd ChD 31-Jan-2006
. .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Cited – Sigma Finance Corporation, Re; (in administrative receivership) SC 29-Oct-2009
The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the . .
Lists of cited by and citing cases may be incomplete.

Limitation, Land

Updated: 02 June 2022; Ref: scu.228064

News of the World Limited v Allen Fairhead and Sons Limited: ChD 1931

The court was asked as to the effect of changes in the fenestration on acquired rights of light.
Held: Whether there is a sufficient coincidence to justify the retention of an enjoyment of the same light will depend on whether the new facade has ‘windows to some extent in the same position as the old windows’.

Judges:

Farwell J

Citations:

[1931] 2 Ch 402

Jurisdiction:

England and Wales

Cited by:

Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 June 2022; Ref: scu.463815

London Borough of Sutton v Bolton and Another: ChD 3 Feb 1993

Land had been owned by the authority and used as a children’s home. After a boundary change taking the land outside its area, it sought to sell the land for development. The neighbours, claiming the benefit of a restrictive covenant allowing only one house on the land, objected. Using the 1972 Act, the authority purported to override the covenant by appropriating the property to planning purposes. They now sought validation of that appropriation.
Held: The appopriation was unsuccessful. The section allowed no greater power than the power to acquire land for any particular purpose, and it could not have been acquired for that purpose, since the land was no longer within its district. The authority had to show the appropriation was for a purpose set out in the section, which did not include the satisfaction of the planning purposes of a different authority.

Judges:

Paul Baker QC J

Citations:

[1993] 68 P and CR 166, [1993] 91 LGR 566, [1993] 2 EGLR 181, [1993] 33 EG 91

Statutes:

Local Government Act 1972 122, Town and Country Planning Act 1971 127, Town and Country Planning Act 1990 237 246

Jurisdiction:

England and Wales

Planning, Land

Updated: 02 June 2022; Ref: scu.261592

Whitbread and Co Ltd v Watt: ChD 1901

The purchaser contracted to purchase a plot on a building estate belonging to the vendor. The contract provided that ‘the purchase is to be completed as soon as 300 houses shall have been erected on the said estate’. Thus the contract was one under which completion was conditional. It also contained a provision entitling the purchaser to rescind the contract by giving notice to that effect ‘if 300 houses shall not be erected on the said estate within two years from the date of this agreement’. The purchaser rescinded the contract and claimed a lien to secure repayment to him of the deposit paid by him on signing the contract. The vendor contended that there was no lien as the contract had not gone off due to any default of his.
Held: It was not necessary for the purchaser to show any fault on the part of the seller. Farwell J said: ‘The lien is created by the contract under which the money is paid as part of the purchase-money, and on the faith that the contract will be carried out, and not by default of the vendor. The default gives rise to the necessity for enforcing the lien, but the lien arises from the contract. I see no reason why a condition that, if 300 houses are not built, the purchaser may rescind should be held to differ in any way from the ordinary condition in a contract that, if the purchaser makes or insists upon any requisition or objection to the title which the vendor is unable or unwilling to comply with, the vendor may rescind.’

Judges:

Farwell J

Citations:

[1901 1 Ch 911

Jurisdiction:

England and Wales

Cited by:

Appeal from – Whitbread and Co Ltd v Watt CA 1902
The buyer agreed to buy a house when the developer had finished 300 houses on the site, but now sought return of his deposit.
Held: The developer’s appeal against an order for the return of the deposit failed.
Williams LJ said: ‘The lien . .
Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 02 June 2022; Ref: scu.259717

Campbell v Griffin and others: CA 27 Jun 2001

Judges:

The President, Lord Justice Thorpe, Lord Justice Robert Walker

Citations:

[2001] EWCA Civ 990, [2001] NPC 102, (2001) 82 P and CR DG23, [2001] WTLR 981

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Thorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Land

Updated: 01 June 2022; Ref: scu.160062

Richard Jonathan Brett Guise v John Drew: ChD 8 Jun 2001

A right of way had been acquired by prescription, but its extent was disputed. It had been used for mainly residential purposes, but then to a greater extent for a different business use.
Held: A right of way may be for one purpose, to the exclusion of others. It is a question of fact whether a right of way is for a limited purpose or purposes, or is a general right for all purposes. A right of way for a defunct family business cannot be enlarged into a right of way for business generally.

Judges:

His Honour Judge Bowsher Q.C.

Citations:

[2001] EWHC Ch 410

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Cowling v Higginson 1838
A right of way may be for one purpose to the exclusion of other purposes. It is a question of fact on the evidence whether a right of way is for a limited purpose or purposes or is a general right for all purposes. . .
Cited – Williams v James 1867
A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the . .
Cited – British Railways Board v Glass CA 1965
An easement arising by prescription involves a fictional lost grant. The court considered the extent of user of an easement in relation to a prescriptive right of way for the benefit of land used as a caravan site: ‘A right to use a way for this . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 01 June 2022; Ref: scu.160103

London Borough of Lambeth v Blackburn: CA 14 Jun 2001

The appellant had broken into an empty council owned flat, and subsequently occupied it. After twelve years the authority obtained a court order for possession. The court had held that the appellant had not had a sufficient animus possidendi since he had not at any time expected to live there for as more than a temporary expedient. He succeeded on appeal. The tenant had removed a padlock and provided his own Yale lock. Any inspection would have revealed an intention to assert ownership against the world. That he would have negotiated with the council if they had contacted him was not enough to defeat the claim. There was nothing in the appellants evidence to contradict the assertion of possession.
Clarke LJ said: ‘It is not perhaps immediately obvious why the authorities have required a trespasser to establish an intention to possess as well as actual possession in order to prove the relevant adverse possession. It seems to me that the answer lies in the fact that the possession must be adverse, that is adverse to the interest of the paper owner. It can only be adverse if the possession is apparent to the owner; that is, if it is manifest to the owner that the trespasser intends to maintain possession against the whole world including the owner. That does not mean that it must in fact be known to the owner, but that it must be manifested to him so that, if he were present at the property he would be aware that the trespasser had taken possession of it and had intended to keep others out.’ and
‘It is thus of crucial importance that the trespasser’s acts must be unequivocal. They must make it clear to the owner, if present at the land, that he intended to exclude the owner, as Slade J put it ‘as best he can” and ‘I would not for part think it appropriate to strain to hold that a trespasser who had established factual possession of the property for the necessary 12 years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that there be a sufficient manifestation of the intention provides protection for landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention.’

Judges:

Lord Justice Clarke, Lord Justice Judge, Lord Justice Laws

Citations:

Gazette 21-Jun-2001, [2001] EWCA Civ 912, (2001) 82 P and CR 494

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Grant of Leave – London Borough of Lambeth v Blackburn CA 10-Apr-2001
Renewed application for leave to appeal – granted. . .
Cited – Powell v McFarlane ChD 1977
Intention to Establish Adverse Possession of Land
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘It will be convenient to begin by . .

Cited by:

Full Appeal – London Borough of Lambeth v Blackburn CA 10-Apr-2001
Renewed application for leave to appeal – granted. . .
Cited – Topplan Estates Ltd v David Townley CA 27-Oct-2004
The registered proprietor of land appealed a finding that the defendant had established adverse possession of their land. The claimant had occupied it as part of his farm. Originally there had been a grazing tenancy. The tenancy was terminated, and . .
Cited – Inglewood Investments Company Ltd v Baker CA 8-Nov-2002
The court considered a claim for the adverse possesion of land.
Held: Dyson LJ said: ‘to establish a claim of adverse possession for the requisite period of 12 years it is necessary to establish: (1) actual possession; (2) an intention to . .
Cited – Smith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 01 June 2022; Ref: scu.160096

Rees and Other v Skerrett: CA 23 May 2001

An owner of a terrace house had demolished it, but had taken no steps to shore up or weatherproof the exposed wall of the neighbouring property. That wall suffered wind damage, and the owner of the remaining property claimed damages under their right of support.
Held: The wall had enjoyed a right of support. The duty included a duty to do what was reasonable in the circumstances to minimise the known risk of damage to the remaining wall. The duty required the defendant to have known of the potential risk, but the court was ready to impose the duty.

Judges:

Lord Justice Waller, Mr Justice Lloyd

Citations:

Times 18-Jun-2001, [2001] EWCA Civ 760, [2001] 3 EGLR 1

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – LMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
Held: To . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 June 2022; Ref: scu.160048

Regina (on the application of Beresford) v The City of Sunderland: CA 26 Jul 2001

Local inhabitants requested the alteration of the Town and Village Green register to include land over which they claimed use as of right for more than twenty years. The difference between acquiescence, which would allow the claim, and tolerance or permission which would defeat it is the presence of some positive act of consent. As well as explicit oral or written consent, it might be inferred from the owner’s acts. In this case, the grass had continued to be cut, and seating had been provided. It could only have been seen as a recreational area provided for the public. The use was by consent, and the land was not to be registered.

Judges:

Lord Justice Dyson, Lord Justice Latham, Mr Justice Wilson

Citations:

Times 29-Aug-2001, Gazette 13-Sep-2001, [2001] EWCA Civ 1218, [2002] QB 874

Links:

Bailii

Statutes:

Commons Registration Act 1965 13 22(1)

Jurisdiction:

England and Wales

Citing:

Appeal From – Regina v City of Sunderland, ex parte Beresford Admn 14-Nov-2000
A recreational area was claimed to be a common. The council considered that there was evidence, which it accepted, of an implied licence, thus enabling the inference to be drawn that the use by local inhabitants for statutory purposes had not been . .

Cited by:

Appealed To – Regina v City of Sunderland, ex parte Beresford Admn 14-Nov-2000
A recreational area was claimed to be a common. The council considered that there was evidence, which it accepted, of an implied licence, thus enabling the inference to be drawn that the use by local inhabitants for statutory purposes had not been . .
Appeal from – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 01 June 2022; Ref: scu.159911

Omar v El-Wakil: CA 11 Jul 2001

The parties entered into two linked contracts providing for a property and a business to be transferred, a lease granted and otherwise. The transfer of the property was in the sum expressed in the sum and at the time the other agreement provided for the deposit. After that transfer the claimant issued a notice to complete, and then sought payment of the deposit. The respondent who had already transferred the property claimed that this stood for the deposit, and requested its return.
Held: His appeal was refused. Although the court should have treated the two contracts as one, and the house as the deposit on the second contract, a deposit should not normally be returnable. Neither party was in a position to complete the second contract and the notice to complete was inappropriate.
Arden LJ discussed the interpretation of section 49(2): ‘The starting point must be that although section 49(2) is expressed in open-textured terms leaving it to the courts to determine the organising principles, the court must bear in mind that the payment in question was a ‘deposit’, that is an earnest for performance and that accordingly there should not be relief simply because the Corringham contract never took place . . The context here is of a conveyancing transaction. It is common knowledge that if a purchaser pays a deposit he is likely to forfeit it if he does not fulfil the contract. Moreover deposits are very usual features of conveyancing transactions and conveyancing transactions are common. It is important that there should be certainty attaching to the consequences of paying a deposit.
As the judge did not exercise his discretion under section 49(2), or alternatively declined to exercise it on the basis no deposit had been paid, it is open to this court to do so. For the reasons given, I would start from the position that the deposit should not normally be ordered to be repaid. Are there any mitigating circumstances in the present case? . . Furthermore in my judgment, in a situation where a purchaser could not himself perform, the circumstances which make it appropriate for the court to exercise its discretion under section 49(2) in his favour must be exceptional. Inability to complete is exactly the risk the deposit was intended to guard against. Accordingly I would not exercise the discretion conferred by section 49(2) in Mr Omar’s favour and would dismiss the appeal on that point.’

Judges:

Phillips MR, Pill LJ, Arden LJ

Citations:

Gazette 26-Jul-2001, Times 02-Nov-2001, [2001] EWCA Civ 1090, [2002] 2 P and CR 36, [2001] NPC 114

Links:

Bailii

Statutes:

Law of Property Act 1925 49(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Eyestorm Ltd v Hoptonacre Homes Ltd CA 19-Dec-2007
The appellant had agreed to take leases on a development of the defendant, hoping to sell the apartments on at a profit. After difficulties, the appellant refused to complete, and the defendant forfeited the deposits.
Held: Eyestorm’s appeal . .
Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Too restrictive – Tennaro Ltd v Majorarch 2003
The parties entered into three related contracts to grant long leases of three flats in the same block (Nos 37, 32 and 31), and deposits paid. The vendor served notices to complete and when the purchaser did not comply, he rescinded each agreement . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 01 June 2022; Ref: scu.159506

McMorris v Claude Brown and others: PC 30 Jul 1998

(Jamaica) It could be a proper argument that the first relaxation of a restrictive covenant was merely the thin end of the wedge and it may be sufficient to reject the application though there was no immediate detriment to dominant land.

Judges:

Lord Hoffmann, Lord Mustill, Lord Cooke of Thorndon, Lord Hutton, Sir John Balcombe

Citations:

Times 29-Aug-1998, [1998] UKPC 34, [1999] 1 AC 142, [1998] 3 WLR 971

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Adopted – Re Snaith and Dolding’s Application LT 1995
The applicants sought modification of a covenant, to enable them to build a second house on a single plot within a building scheme.
Held: ‘The position of the Tribunal is clear. Any application under section 84(1) must be determined upon the . .

Cited by:

Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 June 2022; Ref: scu.159316

Sze To Chun Keung v Kung Kwok Wai David and Lam Chak Man Estate Limited: PC 27 Jun 1997

(Hong Kong) The respondents were registered owners of land occupied by the appellant who claim title by adverse possession after entry in 1955. Subsequently the claim resided with the Crown.
Held: ‘on the facts as pleaded, the land has been continuously in adverse possession since 1955 and that the plaintiffs’ title was extinguished in about 1975. To all outward appearances, there was no change in possession throughout the period and the licensing arrangements between the defendant and a third party, the Crown, did not affect the adverse nature of the possession as against the plaintiffs. At the time when proceedings were commenced, the defendant had been in possession on his own account for only two years. But this does not matter: the Limitation Ordinance is not concerned with whether the defendant has acquired a title but with whether the plaintiffs’ right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely to the plaintiffs since they were dispossessed are for this purpose irrelevant.’

Judges:

Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hutton

Citations:

[1997] 1 WLR 1232, [1997] UKPC 35

Links:

Bailii

Citing:

Cited – Buckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .

Cited by:

Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land, Limitation

Updated: 01 June 2022; Ref: scu.159246

Michel and others v Lennard Augier and others: PC 16 Apr 1997

(Saint Lucia) The claimants sought vehicular access to their land. It was full enclosed by other land, and they sought an easement of necessity as provided by the Civil Code. The provisions came from the Napoleonic Code. The proposed route was economically preferable, but the other was the shortest, which was the factor chosen by the code.
Held: The appeal was dismissed. There were no facts put forward to ground a rejection of the findings of the two courts below. Since those others over whose land the alternate roadway might go were not parties to the case, no order could be made in that respect.

Judges:

Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Nolan, Lord Nicholls of Birkenhead, Lord Clyde

Citations:

[1997] UKPC 16

Links:

Bailii

Land, Commonwealth

Updated: 01 June 2022; Ref: scu.159227

Union Eagle Limited v Golden Achievement Limited: PC 3 Feb 1997

(Hong Kong) The parties had contracted with each other for the sale of land. Completion was to take place on the appointed day at 5:00pm. A ten per cent deposit had been paid, and time had been made of the essence. The seller sought to rescind the contract when the buyer was 10 minutes late in tendering the completion money.
Held: Equity will not prevent the rescission of a land contract for delay in completion. If time was of the essence, strict compliance must have been what was intended.

Judges:

Lord Hoffmann, Lord Goff of Chieveley, Lord Griffiths, Lord Mustill, Lord Hope of Craighead

Citations:

Times 07-Feb-1997, [1997] UKPC 5, [1997] 2 WLR 341, [1997] AC 514, [1997] 2 All ER 215

Links:

Bailii

Citing:

Cited – Workers Trust and Merchant Bank Ltd v Dojap Investments Ltd PC 22-Feb-1993
(Jamaica) The purchaser at an auction had been obliged under the terms of the auction contract to pay a deposit of 25%. He failed to complete, and the vendor took the deposit by way of forfeit. The standard deposit payable would be 10%. The Court of . .

Cited by:

Cited – Dun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
Cited – Kalatara Holdings Ltd v Benedict Thomas Andersen and Another Chd 25-Jan-2008
The claimant sought specific performance of a contract to buy land from the defendant. The defendant sought summary dismissal of the claim and forfeiture of the deposit. It had been intended that the property would be ‘rolled over’ on a sub-sale. . .
Cited – Chinnock v Hocaoglu and Another CA 29-Oct-2008
The parties had contracted for the sale of a property subject to a residential tenancy under the 1987 Act. The purchaser appealed refusal of specific performance, the court having found that it had failed to meet a precondition for serving a notice . .
Lists of cited by and citing cases may be incomplete.

Equity, Commonwealth, Land

Updated: 01 June 2022; Ref: scu.159217

Cresstock Investments Ltd v The Commons Commissioner: CA 10 Jul 1992

The Commons Commissioner had included a wood within the commons. The landowner appealed.
Held: A 1933 conveyance as had referred to the land as ‘several pieces or parcels of land adjoining and enjoyed with’ the house, and it had been enjoyed with the house for many years. The wooded garden should excluded from the common. The words ‘land ancillary to’ a dwelling house should be read to include a garden, and need not be construed tightly so as to include only agricultural or cultivated land.

Citations:

Gazette 16-Sep-1992, [1992] 1 WLR 1088, [1993] 1 All ER 213

Statutes:

Common Land (Rectification of Registers) Act 1989 1(2) 1(3)

Jurisdiction:

England and Wales

Cited by:

Cited – Re Land at Freshfields ChD 27-Jan-1993
Where land had been registered by the Commons Commissioner as common land by virtue of a mistake, the Act provided no mechanism for the correction of that mistake. In this case it was not established that the land comprised fields which were not as . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 June 2022; Ref: scu.79624

Linvale Investments Ltd v Walker: ChD 4 Feb 2016

Judges:

Her Honour Judge Walden-Smith

Citations:

[2016] EWHC B15 (Ch), [2016] 2 P and CR 12

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Green v Ashco Horticulturist Ltd 1966
F granted T a lease reserving the right to deal with all rights in the property as F wanted. T used the back court and gate for business deliveries but then F granted the freehold to the plaintiff, who in turn denied all right to use the back court . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 June 2022; Ref: scu.565545

Kingston v Phillips: CA 1976

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.’

Judges:

Buckley LJ

Citations:

Unreported, 1976 Transcript 279

Jurisdiction:

England and Wales

Cited by:

Cited – Scarfe v Adams CA 1981
Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .
Cited – Clarke and Clarke v O’Keefe and O’Keefe CA 21-Oct-1997
The plaintiff had bought from the vendor a piece of land, bordering a field retained by him. The conveyance plan showed a vegetation boundary with a dotted line, but its precise position on the ground was unclear to them both. Accordingly, they went . .
Cited – Joyce v Rigolli CA 2-Feb-2004
An agreement to resolve a boundary dispute does not need to comply with formalities of the Act.
Sir Martin Nourse said: ‘The agreement between the parties served merely to demarcate the boundary between their respective properties. It had not . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 June 2022; Ref: scu.242461

Morrells of Oxford Ltd v Oxford United Football Club Ltd and Others: CA 21 Jul 2000

A covenant on the sale of land for a public house provided that the vendor should not permit the building of licensed premises within half a mile.
Held: The covenant operated personally only. The covenants which might be implied by the section to bind successors in title also, could not be implied where the commercial context suggested that such an implication would be inconsistent with the purport of the instrument. The words which might be implied under the section, would not be implied against the commercial sense of the transaction, nor inconsistently with the purport of the covenant. The effect of section 79(1) is to convert a promise in a covenant from one which is made by the covenantor into one in which, all other things being equal, equitable remedies are available against an extended class of persons.
Robert Walker LJ said: ‘My tentative view, therefore, coinciding, I think, with the judge’s, is that section 79, where it applies, and subject always to any contrary intention, extends the number of persons whose acts or omissions are within the reach of the covenant in the sense of making equitable remedies available, provided that the other conditions for equity’s intervention are satisfied. Where a restrictive covenant is expressed in the active voice, and section 79 applies, its normal effect is not to turn ‘A covenants with X that A will not build’ into ‘A and B covenant with X that A will not build’. Rather it is that ‘A (on behalf of himself and B) covenants with X that A (or, as the circumstances may require, B) will not build’. ‘

Judges:

Schiemann, Wallker LJJ, Sir Donald Waterhouse

Citations:

Times 15-Aug-2000, Gazette 31-Aug-2000, [2000] EWCA Civ 226, [2001] Ch 459

Links:

Bailii

Statutes:

Law of Property Act 1925 79(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Morrells of Oxford Ltd v Oxford United Football Club and Others ChD 22-Jun-2000
Land was sold by the authority for a public house, and the authority covenanted not to permit sales of alcohol within a half mile. They later sold land for a football stadium within that area and from where alcohol would be sold. The covenant was . .
Cited – Oceanic Village Ltd v United Attractions Ltd, Shirayama ChD 9-Dec-1999
The tenant sought an injunction against its neighbour and landlord to prevent it letting an adjoining property without a restriction similar to the one in its own lease. The claimants sought reassurance from the defendant tenants of the adjoining . .
Cited – Green v Ashco Horticulturist Ltd 1966
F granted T a lease reserving the right to deal with all rights in the property as F wanted. T used the back court and gate for business deliveries but then F granted the freehold to the plaintiff, who in turn denied all right to use the back court . .

Cited by:

Appealed to – Morrells of Oxford Ltd v Oxford United Football Club and Others ChD 22-Jun-2000
Land was sold by the authority for a public house, and the authority covenanted not to permit sales of alcohol within a half mile. They later sold land for a football stadium within that area and from where alcohol would be sold. The covenant was . .
Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 June 2022; Ref: scu.83827

Morrells of Oxford Ltd v Oxford United Football Club and Others: ChD 22 Jun 2000

Land was sold by the authority for a public house, and the authority covenanted not to permit sales of alcohol within a half mile. They later sold land for a football stadium within that area and from where alcohol would be sold. The covenant was held to be limited to the acts of the council, and did not, because of the omission of explicit words from this clause as compared to others in the document, bind successors in title.

Citations:

Gazette 22-Jun-2000

Statutes:

Law of Property Act 1925 79

Jurisdiction:

England and Wales

Citing:

Appealed to – Morrells of Oxford Ltd v Oxford United Football Club Ltd and Others CA 21-Jul-2000
A covenant on the sale of land for a public house provided that the vendor should not permit the building of licensed premises within half a mile.
Held: The covenant operated personally only. The covenants which might be implied by the section . .

Cited by:

Appeal from – Morrells of Oxford Ltd v Oxford United Football Club Ltd and Others CA 21-Jul-2000
A covenant on the sale of land for a public house provided that the vendor should not permit the building of licensed premises within half a mile.
Held: The covenant operated personally only. The covenants which might be implied by the section . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 June 2022; Ref: scu.83839

Cargill v Gotts: CA 1981

The Act prohibited abstraction of water from a river without a licence from the Water Authority. The defendant had no such licence, but asserted that having extracted water over many years from the mill pond, he had acquired the right to do so: ‘The Court will not recognise an easement established by illegal activity’. The court considered the effect of the change in extent of usage. The dominant owner had obtained by prescription a right to extract water from a pond on the servient land for the purpose of watering his animals on the dominant land. While remaining agricultural in nature, the use of the dominant land subsequently changed to arable, and there was a resultant substantial increase in the water taken from the servient pond, because the water was now used for crop-spraying. This was held to be a permissible enjoyment of the easement. ‘Water used for crop spraying is just as much used for agricultural purposes as water used for bullocks and the fact that more water may be required for crop spraying than for watering bullocks is not sufficient to destroy or alter the nature of the right asserted or the easement acquired.’ and ‘In my judgment, it is a mistake to concentrate on gallonage and detailed user.’

Judges:

Templeman LJ, Lawton LJ, Brandon LJ

Citations:

[1981] 1 WLR 441, [1981] CLY 742

Statutes:

Water Resources Act 1963

Jurisdiction:

England and Wales

Cited by:

Cited – Roland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
Cited – Hanning and Others v Top Deck Travel Group Ltd CA 9-Jun-1993
The owner of a common appealed a finding that the neighbouring land owner had acquired by prescription a right of way across the common to use a track for commercial vehicles (buses) to get to the property (the bus depot).
Held: An easement . .
Cited – Tinsley v Milligan CA 1992
The court considered the defence of illegal user to a claim to have established an easement by prescription: ‘These authorities seem to me to establish that when applying the ‘ex turpi causa’ maxim in a case in which a defence of illegality has been . .
Cited – McAdams Homes Ltd v Robinson and Another CA 27-Feb-2004
The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .
Cited – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Lists of cited by and citing cases may be incomplete.

Land, Utilities

Updated: 01 June 2022; Ref: scu.179843

Axis West Developments Ltd v Chartwell Land Investments Ltd: HL 15 Dec 1998

(Scotland) A had granted to C an heritable and irredeemable servitude right to install services under land. A objected to the installation of a particular pipe, and sought damages to the cost of a grant of similar rights. All conditions restricting the use of land must be very clearly expressed, the presumption being always for freedom. Here the clause was sufficiently clear, and the easement was granted. Appeal dismissed.

Judges:

Lord Slynn of Hadley Lord Hope of Craighead Lord Clyde Lord Hobhouse of Wood-borough Lord Millett

Citations:

[1998] UKHL 48

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Anderson v Dickie HL 22-Apr-1915
S. feued a piece of his ground to M., the feucontract containing this clause-‘Declaring . . that it shall not be lawful to the said S. or his aforesaids or the other disponees to sell or feu any part of the said ground now occupied as the lawn . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 31 May 2022; Ref: scu.158979

Governor and Company of the Bank of Scotland v Brunswick Development (1987) Ltd and Another: HL 24 Mar 1999

(Scotland) The grantor of a document was the principal under a deed, not the signatory, where these were different people. The right to rectification was decided accordingly.

Judges:

Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann, Lord Clyde, Lord Hutton

Citations:

Times 05-May-1999, [1999] UKHL 16

Links:

House of Lords, Bailii

Statutes:

Requirements of Writing (Scotland) Act 1995 Sch 2

Jurisdiction:

Scotland

Land, Equity

Updated: 31 May 2022; Ref: scu.159000

Elitestone Ltd v Morris and Another: HL 1 May 1997

The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ appeals succeeded. A built structure becomes part of the land and itself real property, according to the degree of annexation and purpose. In this case the bungalows were not demountable.
Lord Clyde: ‘As the law has developed it has become easy to neglect the original principle from which the consequences of attachment of a chattel to realty derive. That is the principle of accession, from which the more particular example has been formulated, inaedificatum solo solo cedit. A clear distinction has to be draw between the principle of accession and the rules of removability. ‘

Judges:

Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Nolan, Lord Nicholls of Birkenhead, Lord Clyde

Citations:

Times 07-May-1997, Gazette 14-May-1997, [1997] UKHL 15, [1997] 2 All ER 513, [1997] 1 WLR 687

Links:

House of Lords, Bailii

Statutes:

Rent Act 1977

Jurisdiction:

England and Wales

Citing:

Cited – Boswell v Crucible Steel Co CA 1925
The question was whether plate glass windows which formed part of the wall of a warehouse were landlord’s fixtures within the meaning of a repairing covenant. Atkin LJ answered: ‘. . I am quite satisfied that they are not landlord’s fixtures, and . .
Cited – Melluish (Inspector of Taxes) v BMI (No 3) Ltd and Related Appeals HL 16-Oct-1995
Chattels which became affixed to a lessee’s land became fixtures, and were not available for tax allowances calculations. Lord Browne-Wilkinson said: ‘The terms expressly or implicitly agreed between the fixer of the chattel and the owner of the . .
Cited – Holland v Hodgson 1872
(Court of Exchequer Chamber) Blackburn J set out what constituted a fixture: ‘There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with . .
Cited – Webb v Frank Bevis Ltd 1940
The tenant’s large shed was fixed to the land.
Held: It was a tenant’s fixture which could be removed by the tenant at the end of his tenancy, even though it was annexed to the land and formed part of it. . .
Cited – Deen v Andrews 1986
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 . .
Cited – Wansborough v Maton 1836
The court found that a wooden barn had not become part of the land. . .
Cited – Rex v Otley 1830
A wooden mill was held not to have become annexed to and part of the land. . .
Cited – H E Dibble v Moore CA 1969
A greenhouse was not an ‘erection’ within section 62(1). Megaw LJ noted that it was customary to move the greenhouse every few years, . .
Cited – Billing v Pill 1954
A shed was erected on land. It was 135 feet long and 150ft wide. It was on a concrete floor and attached by straps. Was it a fixture?
Held: Lord Goddard CJ said: ‘What is a fixture? The commonest fixture is a house which is built into the . .
Cited – Wiltshear v Cottrell 1854
A wooden granary was not a fixture. When an article is no further attached to the land, then by its own weight it is generally to be considered a mere chattel. . .
Cited – Reid v Smith 8-Dec-1905
(High Court of Australia) The Supreme Court of Queensland had held that the house remained a chattel. ‘The short point raised in this case is whether an ordinary dwelling-house, erected upon an ordinary town allotment in a large town, but not . .
Cited – Hobson v Gorringe CA 1897
The intention of the parties in affixing an object to land is only relevant to the extent that it can be derived from the degree and object of the annexation: ‘the intention of the parties as to the ownership of the chattel fixed to the land is only . .
Cited – Leigh v Taylor HL 6-Feb-2002
Valuable tapestries had been set up for display in a room in a stately home . They were first stretched over canvas and then tacked to the canvas. That canvas was then stretched over strips of wood and nailed to those strips of wood which in turn . .
Cited – Reynolds v Ashby and Son HL 1904
Machines had been affixed to the premises. The court was asked whether they were caught by a fixed charge over the company’s land and fixed assets.
Held: The machines were fixed by bolts only and no damage would be caused to the building by . .
Mentioned – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .
Cited – Ex parte Barclay 1855
The court asked what was meant by a fixture: ‘By ‘fixtures’ we understand such things as are ordinarily affixed to the freehold for the convenience of the occupier, and which may be removed without material injury to the freehold, such will be . .
Cited – Boyd v Shorrock 1867
. .
Cited – Niven v Pitcairn 1823
Large leaden vessels which were not fastened to the building in any way but simply rested by their own weight were held to be heritable since they had had to be taken to pieces in order to be removed and had then been sold as old lead. . .
Cited – In re De Falbe CA 1901
The court referred to the originally unbending rule that everything affixed to the freehold was held to go with the freehold: ‘But in modern times there have come to be important exceptions to this rule, one being in favour of trade fixtures and . .
Cited – Hellawell v Eastwood 1851
In considering whether an article was a fitting and could be removed from its locaion, the court looked to the mode and extent of annexation of the articles: ‘The only question, therefore, is, whether the machines when fixed were parcel of the . .
Cited – Bain v Brand HL 1876
The law as to fixtures is the same in Scotland as in England. There were two general rules under the comprehensive term of fixtures: ‘One of these rules is the general well-known rule that whatever is fixed to the freehold of land becomes part of . .
Cited – Dixon v Fisher HL 12-Jun-1845
Lord Cockburn said ‘no man can make his property real or personal by merely thinking it so.’ . .

Cited by:

Cited – Keelwalk Properties Ltd v Betty Waller and Another CA 30-Jul-2002
The claimant appealed refusal of its claim for possession against the respondents, occupiers of single-storey wooden bungalows on its land. The leases had expired. The defendants said the structures were their own, and not subject to the lease, and . .
Cited – Chelsea Yacht and Boat Club Ltd v Pope CA 6-Apr-2000
The tenant sought to assert that he occupied a houseboat, the Dinty Moore, under a tenancy of a dwellinghouse under the 1988 Act. The claimant appealed a decision that it was.
Held: A house-boat, even though used as a dwelling, did not have . .
Lists of cited by and citing cases may be incomplete.

Land, Housing

Updated: 31 May 2022; Ref: scu.158890

Tomlinson v Congleton Borough Council and Cheshire County Council: CA 18 Jun 2001

The appellant sought leave to appeal against an order dismissing his claim for damages. He had been injured swimming in water on the defendant’s land. The defendant asserted that they had no duty of care to those who came onto the land and imperiled themselves.
Held: New evidence showed that the defendant was aware of the risks and had taken steps to deal with it. They arguably assumed a duty of care. Leave granted.

Judges:

Henry LJ

Citations:

Times 22-Mar-2002, [2001] EWCA Civ 911

Links:

Bailii

Statutes:

Occupiers’ Liability Act 1984 1(3)

Jurisdiction:

England and Wales

Citing:

Applied – Scott v Associated British Ports and Railways Board 1999
. .
Cited – Jebson v Ministry of Defence CA 28-Jun-2000
The claimant was a guardsman travelling in the rear of a service lorry. He fell from the tailgate suffering severe injury. He was drunk after a social trip.
Held: Though a person could normally expect to be responsible himself for incidents . .

Cited by:

Leave given – Tomlinson v Congleton Borough Council and Another CA 14-Mar-2002
The claimant was injured swimming in a lake in a park. Warning signs clearly indicated that the lake was dangerous for swimming.
Held: The authority were liable. They knew that the lake was attractive to swimmers, and that the signs were . .
Lists of cited by and citing cases may be incomplete.

Land, Personal Injury

Updated: 31 May 2022; Ref: scu.147581

Wallbank and Wallbank v Parochial Church Council of Aston Cantlow and Wilmcote With Billesley, Warwickshire: CA 17 May 2001

The defendant owned land subject to an inclosure award of 1743, in exchange for other land which had made the owner a lay rector. The land was subject to the burden of a duty to maintain the chancel of the parish church. The defendants had been found liable to repair the chancel, but appealed on the basis that the Council was a public authority and the notice was served in breach of the defendants human rights to peaceful enjoyment of their land. By attaching what was in effect a tax to private land, the law allowed discrimination between land ownership. It was neither appropriate not proportionate to single out former glebe land as having responsibility to maintain public buildings.

Citations:

Gazette 01-Jun-2001, Times 15-Jun-2001, Gazette 21-Jun-2001, [2001] EWCA Civ 713, [2002] Ch 51

Links:

Bailii

Statutes:

Human Rights Act 1998, Chancel Repairs Act 1932

Jurisdiction:

England and Wales

Citing:

Appeal from – Parochial Church Council of Aston Cantlow and Wilmcote With Billesby, Warwickshire and Another ChD 7-Feb-2000
A lay rector could be liable for the physical upkeep of the chancel of the church by virtue of the Act, and such liability was not removed by the new Human Rights Act. Such liability could exist whether or not he had notice of the liability when . .

Cited by:

Appeal from (Disapproved) – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Land, Ecclesiastical

Updated: 31 May 2022; Ref: scu.147549

Shah v Shah: CA 10 Apr 2001

The court was asked as to the enforceability of a document under the terms of which the defendants were to make a payment of pounds 1.5 million to the claimant. The document was described as a deed and provided for each defendant to sign in the presence of a witness. In the event, although the ‘witness’ signed shortly after the defendants, he did so without having been present when they signed. When, therefore, the claimant brought proceedings against them, the defendants disputed the claim on the basis that the ‘deed’ had not been validly executed.
Held: The defendants were estopped from denying that they had signed the document in the witness’s presence. Public policy could not be used to disallow a party from asserting that a deed was valid despite the fact that the signature had not been properly witnessed, even though it was in the nature of the deed that such witnessing was required by law. Here the witness signature had not been present when he added his signature. The circumstances which might give rise to such a claim would often be solely with the party seeking to avoid liability under a deed, and being permitted to deny his deed would lead to uncertainty and fraud. The party had presented it as his own and properly attested deed and could be estopped from denying it.
Pill LJ said: ‘I bear in mind the clarity of the language of section 1(2) and (3) and also that the requirement for attestation is integral to the requirement for signature in that the validity of the signature is stipulated to depend on the presence of the attesting witness. I also accept that attestation has a purpose in that it limits the scope for disputes as to whether the document was signed and the circumstances in which it was signed. The beneficial effect of the requirement for attestation of the signature in the manner specified in the statute is not in question. It gives some, but not complete, protection to other parties to the deed who can have more confidence in the genuineness of the signature by reason of the attestation. It gives some, but not complete, protection to a potential signatory who may be under a disability, either permanent or temporary. A person may aver in opposition to his own deed that he was induced to execute it by fraud, misrepresentation or, as was unsuccessfully alleged in the present case, duress and the attestation requirement is a safeguard.
I have, however, come to the conclusion that there was no statutory intention to exclude the operation of an estoppel in all circumstances or in circumstances such as the present. The perceived need for formality in the case of a deed requires a signature and a document cannot be a deed in the absence of a signature. I can detect no social policy which requires the person attesting the signature to be present when the document is signed. The attestation is at one stage removed from the imperative out of which the need for formality arises. It is not fundamental to the public interest, which is in the requirement for a signature. Failure to comply with the additional formality of attestation should not in itself prevent a party into whose possession an apparently valid deed has come from alleging that the signatory should not be permitted to rely on the absence of attestation in his presence. It should not permit a person to escape the consequences of an apparently valid deed he has signed, representing that he has done so in the presence of an attesting witness, merely by claiming that in fact the attesting witness was not present at the time of signature. The fact that the requirements are partly for the protection of the signatory makes it less likely that Parliament intended that the need for them could in all circumstances be used to defeat the claim of another party.
Having regard to the purposes for which deeds are used and indeed in some cases required, and the long-term obligations which deeds will often create, there are policy reasons for not permitting a party to escape his obligations under the deed by reason of a defect, however minor, in the way his signature was attested. The possible adverse consequences if a signatory could, months or years later, disclaim liability upon a purported deed, which he had signed and delivered, on the mere ground that his signature had not been attested in his presence, are obvious. The lack of proper attestation will be peculiarly within the knowledge of the signatory and, as Sir Christopher Slade observed in the course of argument, will often not be within the knowledge of the other parties.
In this case the document was described as a deed and was signed. A witness, to whom the third and fourth defendants were well known, provided a form of attestation shortly afterwards and the only failure was that he did so without being in the presence of the third and fourth defendants when they signed.’

Judges:

Pill LJ, Tuckey LJ and Sir Christopher Slade

Citations:

Times 15-May-2001, [2002] QB 35, [2001] EWCA Civ 527, [2001] 3 WLR 31, [2001] 4 All ER 138

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 1

Jurisdiction:

England and Wales

Citing:

Leave given – Shah v Shah and others CA 7-Mar-2001
Renewed application for permission to appeal – whether deed validly signed. . .

Cited by:

Cited – Wilson v Truelove ChD 25-Mar-2003
The claimants requested a declaration that an option to repurchase land was void under the 1964 Act.
Held: The option to repurchase land was prima facie void. The right arose on the coming into existence of the agreement, or at the latest on . .
Cited – Cobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
Cited – Actionstrength Limited v International Glass Engineering In Gl En SpA and others HL 3-Apr-2003
Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim . .
Cited – Iesini and Others v Westrip Holdings Ltd and Others ChD 16-Oct-2009
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
Cited – No1 West India Quay (Residential) Ltd v East Tower Apartments Ltd ChD 6-Oct-2016
Consent to assignment – delay
Tenants under long residential leases challenged the refusal of the landlord to consent to particular assignments of apartments. The leases contained provisions saying that such consent was not to be unreasonably withheld. The landlord now appealed . .
Explained – Briggs and Others v Gleeds (Head Office) and Others ChD 15-Apr-2014
The court was asked whether certain documents constituting a pension scheme had been effectively executed. They had been signed, but the signatures lacked the necessary witnessing. The scheme members claimed estoppel against the signatories.
Distinguished – Bank of Scotland Plc v Waugh and Others ChD 21-Jul-2014
The defendants had charged a property to the claimant bank to secure a guarantee of borrowings. The signatures were not witnessed as required under section 1(3) of the 1989 Act, and there were other misdescriptions. The bank sought a declaration as . .
Lists of cited by and citing cases may be incomplete.

Land, Estoppel

Updated: 31 May 2022; Ref: scu.147505

Regina (on the application of Gilbert) v Plymouth City Airport Limited; W W Thomas v Secretary of State for Transport, Environment and Regions: CA 8 Feb 2001

The airport was the operator liable for compensation. The apron was extended to allow for two more helicopters to be based at the airport, and a neighbouring householder claimed compensation for loss to the value of his house. The Secretary’s certificate was correct. The works were substantial alterations and the requirements of the section had been fulfilled, leaving the applicants entitled to compensation. S9(6)(b) does not require comparison of the numbers of aircraft actually using an aerodrome before and after the alterations, so that it does not require proof that the additions or alterations have led to additional aircraft in fact using the aerodrome.

Citations:

Gazette 22-Feb-2001, [2001] EWCA Civ 144

Links:

Bailii

Statutes:

Land Compensation Act 1973 9(6)(b)

Jurisdiction:

England and Wales

Cited by:

Cited – Brunt and others v Southampton International Airport Ltd CA 7-Feb-2005
The claimants lived near Southampton Airport. The airport was altered to allow larger aircraft to use it, and they claimed damages for the increased noise and disturbance. Land had been acquired for additional parking. The number of aircraft flying . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 May 2022; Ref: scu.147429

Mohammed Aslam v South Bedfordshire District Council: CA 21 Dec 2000

The claimant appealed an award of the Lands Tribunal of compensation for an order discontinuing his use as a slaughterhouse of premises of which he held a long lease. The tribunal had applied a discount for wastage on sheep carcasses of 25%, but had had no evidence to support their conclusion, and the figure proposed had allowed for that factor. A reduced allowance for losses from sale of other parts of sheep could not be supported by the evidence, and was increased, and the tribunal should have awarded interest from the date of the discontinuance order.

Citations:

Times 18-Jan-2001, Gazette 11-Jan-2001, [2000] EWCA Civ 355

Links:

Bailii

Statutes:

Town and Country Planning Act 1990 102, Planning and Compensation Act 1991

Jurisdiction:

England and Wales

Citing:

Cited – Knibb and another v National Coal Board CA 1987
The court considered whether the Lands Tribunal had power to award interest on an award made under a statutory power.
Held: The Lands Tribunal had power to award interest on the amount of compensation in respect of the period from the date on . .
Cited – Director of Buildings and Lands v Shun Fung Ironworks Ltd PC 20-Feb-1995
Compensation is payable for losses properly anticipating resumption of possession of the land. The principle of equivalence gives rise to the statutory right to interest under section 11(1). The council explained the conceptual foundation of the . .
Cited – Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co HL 1903
A coalmine owner claimed statutory compensation against a water undertaking which had, under its statutory authority, prevented him mining his coal over a period during which the price of coal had risen. The House was asked whether the coal should . .
Cited – President of India v La Pintada Compagnia Navigacia SA (‘La Pintada’) HL 1985
The house decided against altering the rule in Page -v- Newman. ‘The common law does not award general damages for delay in payment of a debt beyond the date when it is contractually due’ The power given to the court under s 35A is discretionary. It . .
Cited – Wright v British Railways Board HL 1983
An award of interest at a conventional rate includes an element in respect of the ‘real’ rate of return which an investor could expect to receive on a risk-free investment and an element to allow for inflation. Lord Diplock said: ‘that element of . .
Lists of cited by and citing cases may be incomplete.

Land, Planning

Updated: 31 May 2022; Ref: scu.147388

Buhr v Barclays Bank plc: CA 26 Jan 2001

The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank claimed the money had been received on constructive trust.
Held: The court confirmed that the failure to register the charge only voided it as against the purchaser. When the bank’s security was destroyed, a security interest was created automatically in the asset which replaced it. The sale by the husband and wife was not authorised by the bank, and the judge had concluded correctly.
Arden LJ stated: ‘if . . the mortgagor makes a disposition of the mortgaged property in a manner which destroys the mortgagee(s estate in the mortgaged property, a security interest in the property which represents the mortgaged property automatically and as a matter of law comes into existence as from the moment that the mortgagor becomes entitled to their property.’

Judges:

Woolf LCJ, Tuckey, Arden LJJ

Citations:

Gazette 09-Aug-2001, [2001] EWCA Civ 1223, [2002] 1 P and CR DG7, [2002] BPIR 25, [2001] 31 EGCS 103, [2001] NPC 124

Links:

Bailii

Statutes:

Law of Property Act 1925 63

Jurisdiction:

England and Wales

Citing:

Cited – Banner v Berridge 1881
. .
Cited – Charles v Jones 1887
. .
Cited – The Benwell Tower 1895
. .
Cited – Raffelsen Zentralbank Osterreich Ag v Five Star General Trading Llc and Others CA 1-Mar-2001
An assigned marine insurance policy was subject to a claim. The issue was the ability of an assignee to claim as a claim in contract where the proper law was that under which the contract was made, or a claim of an intangible right to claim against . .

Cited by:

Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Cited – Menelaou v Bank of Cyprus Plc ChD 19-Jul-2012
On the sale of the claimant’s property, the solicitors received agreement by the defendant bank to the release of their charge over the property for a certainsum, being less than the loan outstanding. In the course of discharging the loan, a bank . .
Cited – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts, Insolvency

Updated: 31 May 2022; Ref: scu.147410

J A Pye (Oxford) Limited v South Gloucestershire District Council: CA 26 Oct 2000

The company appealed an award by way of valuation for land which was to valued as if purchased compulsorily. It was argued that they were raising points which should have been litigated before the Lands Tribunal.
Held: The appeal to the court was only on a point of law, and the company should have brought the full elements of its its valuation claim at the tribunal. The tribunal had not erred in law, and the appeal failed.

Judges:

Otton, Ward LJJ, Evans-Lombe J

Citations:

[2000] EWCA Civ 268

Links:

Bailii

Statutes:

Land Consolidation Act 1961

Jurisdiction:

England and Wales

Citing:

Cited – Bradford and Bingley Building Society v Seddon and Hancock; Walsh and Rhodes (Trading As Hancocks (a Firm) CA 11-Mar-1999
There was an unsatisfied judgment on a claim by a defendant in an earlier action against a third party. In a subsequent action against the defendant the latter issued third party proceedings against the original and different third parties.
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Horseferry Road Justices and others v City of Westminster CA 1-Jul-2003
. .
Cited – Barrow v Bankside Members Agency Limited CA 10-Nov-1995
Mr Barrow was a member of an action group which had successfully sued a number of members’ agents for negligent underwriting. Having substantially succeeded, but recovered only a proportion of the damages he had claimed, Mr Barrow issued fresh . .
Cited – Yat Tung Investment Co Ltd v Dao Heng Bank Ltd PC 1975
Restraint of Second Action as Abuse
Hong Kong – A company purchased a property from the defendant bank who had taken it back into possession from a former borrower. The company itself fell into arrears, the property was taken back again and resold. The company sought a declaration . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 31 May 2022; Ref: scu.147301

Hale v Norfolk County Council: CA 17 Nov 2000

A public right away could not be presumed to have been granted by the owner of land adjoining a public highway merely from the erection of fences or hedges on the side of a highway. There is no simple rule that the land was deemed to have been dedicated to public use ‘from hedge-to-hedge’. Some greater act was needed to provide evidence that there had been any gift to the public. The 1936 Act was concerned with public health, and could not be used to create rights of way. Where a highway is constructed under section 24(2) of the 1980 Act there is no formal requirement of dedication as a highway.

Citations:

Times 19-Dec-2000, Gazette 11-Jan-2001, [2000] EWCA Civ 290, [2001] Ch 717

Links:

Bailii

Statutes:

Public Health Act 1936, Highways Act 1980 24(2)

Jurisdiction:

England and Wales

Cited by:

Cited – London Borough of Bexley v Maison Maurice Ltd ChD 15-Dec-2006
The council had taken land by compulsory purchase in order to construct a dual carriageway. It then claimed that it had left undedicated a strip .5 metre wide as a ransom strip to prevent the defendant restoring access to the road.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 May 2022; Ref: scu.147323

Pollard and Another v Ashurst: CA 21 Nov 2000

An English court did have power to order the sale of property in Portugal owned by the bankrupt and his wife in their joint names. The estate of the bankrupt vested in the trustee automatically and withoutmore on the bankruptcy. This could not change land registers in Portugal. For such registers the country involved had exclusive jurisdiction. Nevertheless, the instant case involved no investigation of facts or law in Portugal, and it was appropriate to order that the bankrupt execute documents to transfer the property and hold it in trust for the trustee in bankruptcy until transferred.

Citations:

Gazette 18-Jan-2001, Times 29-Nov-2000, [2000] EWCA Civ 291

Links:

Bailii

Statutes:

Civil Jurisdiction and Judgments Act 1982

Jurisdiction:

England and Wales

Insolvency, Land, International

Updated: 31 May 2022; Ref: scu.147324

Marlene Peggy Masters v Secretary of State for Environment, Transport and Regions: CA 31 Jul 2000

Where a public byway was defined as such under the Act, it was intended that the highway should be shown as such on the definitive map. The fact, if it was such, that a byway had fallen into disuse was not an indication that it should be omitted from the map. The purpose of the Act was precisely to protect little used byways, by recording them, and not by deleting them. Roch LJ: ‘[The] provisions [of Paragraph 10] were not re-enacted in the 1981 Act because, as Mr Laurence conceded, it was thought by Parliament that those provisions conflicted with the common law rule that, once the public have a right of way of a certain type over land, then in order to extinguish or even vary such a right, intervention by statute, either directly or indirectly, should be necessary.’

Judges:

Roch LJ

Citations:

Times 12-Sep-2000, Gazette 14-Sep-2000, [2000] EWCA Civ 249, [2000] 4 PLR 134

Links:

Bailii

Statutes:

Wildlife and Countryside Act 1961 66(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Kind, Regina (on the Application of) v Secretary of State for Environment, Food and Rural Affairs Admn 27-Jun-2005
The applicant challenged a refusal to confirm a draft order recognising a road used as a path as a byway open to all traffic.
Held: The challenge succeeded. The path had been shown under the 1948 Act as a road used as a public path. The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 May 2022; Ref: scu.147282

Moase and Lomas v Secretary of State for the Environment, Transport and the Regions and South West Water Limited: CA 16 Jun 2000

Objection to compulsory purchase order.

Citations:

[2000] EWCA Civ 193

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ashbridge Investments Ltd v Minister of Housing and Local Government CA 1965
The Minister had decided to confirm a CPO of premises which were now alleged not to be a house as was required by the legislation under which the order was made.
Held: The court can interfere if the decision maker has taken into account a . .
Lists of cited by and citing cases may be incomplete.

Land, Utilities

Updated: 31 May 2022; Ref: scu.147226

Collins, Etridge; Gonzalez v Union Bank of Switzerland Barclays Bank Plc Richard Caplan and Co (a Firm) St Georges Street Trustees Limited St James’s Trustees Limited: CA 25 May 2000

The claimants sought permission to appeal after their claim had been struck out. The claim had alleged fraud against the first defendant, and the court had found that claim to have no real prospect of success. They said that the bank had provided a financial reference upon which they relied in turning down one offer for a golf course development in Spain in favour of an offer apparently supported by the reference. The judge had held that they had not relied on the reference.
Held: The documentation made the position clear, and no businessman of any experience would have relied on the purported reference, and the reference was also subject to an effective disclaimer. The evidence now sought to be admitted could with reasonable diligence have been obtained for the trial. No important point of law or practice arose, and leave was refused.

Judges:

Otton LJ, Buxton LJ

Citations:

[2000] EWCA Civ 176

Links:

Bailii

Jurisdiction:

England and Wales

Land, Equity, Banking, Legal Professions

Updated: 31 May 2022; Ref: scu.147209

London Borough of Hillingdon v ARC Limited (No 2): CA 16 Jun 2000

The council entered upon land belonging to the company in accordance with the compulsory purchase procedures in 1982, but the company did not bring its claim for compensation until 1992. The council said the were out of time.
Held: Section 9 applies to claims for compensation for compulsory purchase. The mere fact that a party has continued to negotiate with the other party about the claim after the limitation period had expired, without anything being agreed about what happens if the negotiations break down, cannot give rise to a waiver or estoppel.

Judges:

Arden, Waller, Swinton Thomas

Citations:

[2000] 3 EGLR 97, [2000] EWCA Civ 191

Links:

Bailii

Statutes:

Limitation Act 1980 9, Compulsory Purchase Act 1965 11

Jurisdiction:

England and Wales

Citing:

See Also – London Borough of Hillingdon v ARC Limited CA 7-Apr-1998
The company sought compensation for land taken under compulsory purchase powers by the defendants several years before. It now appealed against the defeat of its claim as time-barred.
Held: The appeal failed. The limitation period for a claim . .

Cited by:

Cited – BP Oil UK Ltd v Kent County Council CA 13-Jun-2003
BP sought compensation after its land had been acquired compulsorily. The council said its claim was time barred. BP appealed from the Lands Tribunal, saying an agreement with the Authority had kept its claim alive.
Held: The fact of entry did . .
Cited – Super Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .
Cited – Legal Services Commission v Rasool CA 5-Mar-2008
The defendant had in 1993 obtained legal aid. Work was done but the certificate was then revoked. The Commission sought repayment of the sums paid on account to his solicitors. He replied that the claim was out of time. The Commission argued that . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Estoppel

Updated: 31 May 2022; Ref: scu.147224

Bolton Metropolitan Borough Council v Tudor Properties Ltd and Others: CA 19 Apr 2000

The court had to consider the compensation to be awarded on the compulsory purchase of land.
Held: The appeal failed. The tribunal had not erred in ascertaining the extent of the underlying scheme. In deciding that, they were entitled to have proper regard to the expert evidence. The reasons given were adequate to allow the parties to know the basis of the decision.

Citations:

[2000] EWCA Civ 136, (2000) RVR 292

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Cited – Wilson v Liverpool Corporation CA 1971
The claimants owned 74 acres of an area of 391 acres in Liverpool which the Corporation wanted to acquire for residential development. The authority acquired the land by agreement and made a compulsory purchase order in respect of the remainder.
Cited – J A Pye (Oxford) Limited v Kingswood Borough Council CA 6-Apr-1998
The purchase of land which was to form the last part of a development was to be valued without taking account of the enhanced value which would be attributed to the much larger scheme of development. To ascertain what is to be ignored by the valuer . .
Cited – Bird and Bird v Wakefield Metropolitan Borough Council 1976
The underlying scheme to be disregarded when calculating compensation on a compulsory purchase need not, as a matter of law, be confined to the area of land compulsorily acquired or to the specific purposes of the CPO. The acquisition may be only a . .
Cited – Wards Construction (Medway) Ltd v Barclays Bank Plc and Another CA 1-Jul-1994
Land with an existing use value of andpound;3,000 had been valued by the Lands Tribunal for purchase at andpound;2.15m.
Held: The ransom value decision by the Lands Tribunal was not wrong in law and was upheld. It was necessary to value the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 May 2022; Ref: scu.147169

Hampshire County Council v Gillingham and Gillingham: CA 5 Apr 2000

The council obtained a county court order against the defendants to remove a wooden gate and concrete hanging post, and an injunction prohibiting them from placing a gate, fence or other obstruction on a public footpath. Attempting to defuse the dispute, the council had written appearing suggesting that an 8 foot gap was provided for public use. The county court judge held that the public were entitled to the full width of the footpath. The council were not estopped from asserting the rights of the public; any acquiescence by them in unlawful obstruction of footpaths and rights of way could not affect the position. At a point where the track was 16 feet 6 inches wide, the defendants maintained that there was an 8 feet wide gap between the gate and the opposite hedge. The judge rejected that, since the gate and concrete post there obstructed the public from enjoying the full width of the footpath.
Held: Once the judge was satisfied that the defendants had obstructed a public footpath, he was entitled to order them to take the gate and concrete post down ‘so that the public could enjoy their rights without obstruction’. As to estoppel, the mere consent of a highway authority to an obstruction on the highway was ineffectual for the purposes of legalising it, and where a statute, like section 130 of the 1980 Act, enacted for the benefit of a section of the public, imposed a duty of a positive kind, the person charged with the performance of the duty could not by estoppel be prevented from exercising statutory powers. As to the argument that the judge ought to have disregarded the encroachment of the gate as de minimis, Brooke LJ said: ‘The flaw in this argument is that as a matter of law members of the public are entitled to utilise the full width of any footpath over which they have rights of way, subject to a very narrow de minimis exception: see Hertfordshire CC v Bolden (The Times, 9th December 1986) and Wolverton UDC v Willis [1962] 1 All ER 243. The Gillinghams’ argument takes no account of the width of the enclosures mentioned in the Definitive Map. They do not appear to understand that the public is entitled to enjoy the full width of the land between the enclosures (as the judge correctly held).’

Judges:

Brooke LJ, Sedley LJ

Citations:

[2000] EWCA Civ 105

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Herrick and Another v Kidner and Another Admn 17-Feb-2010
Psychological Obstruction to Public Footpath
A public footpath crossed the appellants’ land. They constructed a gateway across it which they now accepted had been a significant obstruction of the right of way. The local authority served a notice requiring its removal, including the stone . .
Cited – Kind v Northumberland County Council Admn 14-Mar-2012
The appellant landowner had a public bridleway over his land. It passed over an old cattle grid. He had constructed a gate to the side of the track. It was not part of the public highway. He now appealed from a refusal of an order for the Council to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 May 2022; Ref: scu.147138

Secretary of State for Environment, Transport and Regions and Another v Skerritts of Nottingham Ltd: CA 25 Feb 2000

The meaning of ‘curtilage’ whilst not strictly a term of art had caused considerable difficulties. There was nothing inherent in the concept to imply any limitation that the area should be small. In this case the curtilage of a manor house could clearly include stable houses 200 meters from the main house. Accordingly those buildings were included within the property subject to the listed buildings order. The general legislative purpose of both regimes is the protection of the national heritage, and the particular purpose of the extending provisions is to ensure that not only the heritage property itself, but also its fixtures and its environment, are protected.

Citations:

Times 08-Mar-2000, Gazette 09-Mar-2000, [2000] EWCA Civ 60, [2001] QB 59, [2000] 2 PLR 84

Links:

Bailii

Statutes:

Planning (Listed Buildings and Conservation Areas) Act 1990, Ancient Monuments and Archeological Areas Act 1979 61(7)

Jurisdiction:

England and Wales

Citing:

Appeal From – Skerritts of Nottingham Limited v Secretary of State for Environment, Transport and Regions, Harrow London Borough Council Admn 22-Mar-1999
The curtilage of a building is a small area around it. An assessment of whether a separate structure was within the curtilage which did not consider the distance between the various buildings must be incorrect in that it had omitted an essential . .
Cited – Attorney-General ex relater Sutcliffe and Others v Calderdale Borough Council CA 1982
The court discussed whether a terrace of cottages was within the curtilage of an old factory which was a listed building. At first instance, Skinner J had held that they were, and that permission could not be granted for their demolition. The . .

Cited by:

Cited – Her Majesty’s Commissioners of Customs and Excise v Zielinski Baker and Partners Limited HL 26-Feb-2004
The commissioners sought to charge to VAT charges for works which had been carried out to a building within the curtilage of a listed building. The taxpayer sought zero-rating.
Held: The outbuilding to which alterations were made must have . .
Cited – Lowe v First Secretary of State and Another Admn 6-Feb-2003
The landowner appealed against an enforcement notice issued with respect to a chain link fence erected along the driveway of his grade II listed building. He said the drive was not part of the curtilage of the building.
Held: The inspector had . .
Lists of cited by and citing cases may be incomplete.

Land, Planning

Updated: 31 May 2022; Ref: scu.147093

Wilkinson v Chief Adjudication Officer: CA 24 Mar 2000

The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes.

Judges:

Lord Justice Evans, Lord Justice Potter and Lord Justice Mummery

Citations:

[2000] EWCA Civ 88

Links:

Bailii

Statutes:

Income Support (General) Regulations 1987

Jurisdiction:

England and Wales

Citing:

Cited – Bull v Bull CA 1955
The parties were mother and son who had purchased a property as joint tenants. The son contributed a greater part of the purchase price. The son then married, and agreements were reached as to occupation of different parts of the house. When those . .
Cited – In re Mayo ChD 1943
The court discussed the duty of trustees to sell in the absence of unanimity: ‘The trust for sale will prevail, unless all three trustees agree in exercising the power to postpone.’ . .
Cited – Chief Adjudication Officer and Another v Palfrey; Same v Dowell, Same v McDonnell CA 17-Feb-1995
Property was acquired by joint owners to provide accommodation for both joint owners. That purpose would be defeated if one of those acquiring the property were to insist on a sale while that purpose was still subsisting. The value of a joint . .
Cited – Jones v Challenger CA 1960
The test under the section was whether it was inequitable to make the order for sale where one of the joint beneficiaries, who in that case were ex-husband and wife, wished to realise their investment in the property.
Held: Referring to the . .
Cited – Barclay v Barclay CA 1970
The question arose prior to sale between the sole trustee and an occupying beneficial tenant in common as to whether the property should be sold.
Held: The trustee of land was entitled to sell the property and divide the proceeds as the prime . .
Cited – In re Buchanan – Wollaston’s Covenant 1939
When considering the need to order the sale of property against the wishes of a joint owner, ‘the Court has a complete discretion to do what is right and proper, and will not allow the voice of the man who is in breach of his obligation to persist’ . .
Lists of cited by and citing cases may be incomplete.

Land, Benefits

Updated: 31 May 2022; Ref: scu.147121