Category: Land

Haq v Island Homes Housing Association and Another: CA 20 Jul 2011

The parties had embarked on a development arrangement failed to put their tentative agreement to formal terms. A third party now refused to execute and be bound by the proposed agreements.

Arden, Lloyd, Tomlinson LJJ
[2011] EWCA Civ 805, [2011] NPC 77, [2011] 2 P and CR 17
Bailii
England and Wales

Estoppel, Land

Updated: 20 December 2021; Ref: scu.441999

Nickerson v Barraclough: CA 13 Dec 1980

The defendant appealed a finding that the plaintiff had a right of way of necessity over his land. When looking to see whether a grant of a right of way of necessity was implied, the court should ascertain the intention of the parties and public policy could not assist the court in that task. Brightman LJ said: ‘In this court we have heard a great deal of argument about ways of necessity – what is the basis, how they can be acquired and whether they can be lost.
I have come to the conclusion that the doctrine of way of necessity is not founded on public policy at all but upon an implication from the circumstances. I accept that there are reported cases, and textbooks, in which public policy is suggested as a possible foundation of the doctrine, but such a judgement is not, in my opinion, correct. It is well established that a way of necessity is never found to exist except in association with a grant of land.’
Buckley LJ said: ‘I entirely agree with the judgment which has been delivered by Brightman LJ. In particular, in my judgment the law relating to ways of necessity rests not upon a basis of public policy but upon the implication to be drawn from the fact that unless some way is implied, a parcel of land will be inaccessible. From that fact the implication arises that the parties must have intended that some way giving access to the land should have been granted.
Public policy may inhibit the parties from carrying their intention into effect, but I cannot see how public policy can have a bearing upon what their intention was. In my judgment, that must be ascertained in accordance with the ordinary principles of construction, the language used and relevant admissible evidence of surrounding circumstances.’

Brightman LJ, Buckley LJ
[1981] Ch 426, [1981] 2 All ER 369, [1981] 2 WLR 773
Bailii
England and Wales
Citing:
Appeal from – Nickerson v Barraclough (1) ChD 1980
The court considered an assertion that a right of necessity was implied into a deed.
Held: ‘In the present case the land conveyed was plainly intended to be used for building purposes, and of course it plainly needed access for building . .
Appeal from – Nickerson v Barraclough (2) ChD 2-Jan-1980
The Vice-Chancellor said: ‘if land is conveyed in circumstances which otherwise would create a way of necessity, or a way implied from the common intention of the parties based on a necessity apparent from the deeds, does public policy prevent the . .

Cited by:
Cited – Adealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
Cited – Manjang v Drammeh PC 1990
The owner of a strip of land alongside the River Gambia and which was ‘regularly and without inconvenience’ accessed by his customers from the river failed in a contention that his land was ‘landlocked’ so as to give him a way of necessity over . .
Cited – Adealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 20 December 2021; Ref: scu.253281

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.

Mr Justice Collins
[2003] EWHC 171 (Admin)
Bailii
Wildlife and Countryside Act 1981 Sch15
England and Wales
Cited by:
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 20 December 2021; Ref: scu.184841

Midland Bank Trust Co Ltd v Green (No 1): HL 11 Dec 1980

A father had granted an option over land to his son, but it had not been registered. The father later tried to frustrate the option by conveying the land to his wife for 500 pounds. The land was worth 40,000 pounds. When the son found out about it, he sought to exercise the option, and then sued his father and his deceased mother’s estate for specific performance, as well as for damages for conspiracy by his parents. Oliver J held that the sale to the mother was a genuine sale and was not a sham, she was ‘a purchaser of a legal estate for money or money’s worth’ against whom the unregistered option was void under section 13(2) of the Land Charges Act 1925. It followed that the claim for specific performance against the mother’s estate failed. The son appealed.
Held: The House restored Oliver J’s judgment. The mother was a person against whom the option was void for non-registration. The transaction was not a sham. In a ‘pure’ registration system, notice is irrelevant; this has the advantage that intending purchasers are relieved of the burden of making exhaustive enquiries. There is nothing wrong with a party seeking to benefit from the technical effects of the registration regime and the consequences of a failure of a person to protect himself under it.

Lord Wilberforce
[1981] AC 513, [1980] UKHL 7
Bailii
Land Charges Act 1925 13(2)
England and Wales
Citing:
Cited – Snook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .

Cited by:
Cited – R Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
Cited – Sainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc ChD 17-Jun-2005
The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An . .
Cited – Coles and others (Trustees of the Ward Green Working Mens Club) v Samuel Smith Old Brewery (Tadcaster) (Unltd Company) and Another CA 29-Nov-2007
The claimants appealed refusal of an order for specific performance of a contract for the purchase of land under the exercise of an option agreement. The defendant had conveyed the land to a subsidiary in order to defeat the option.
Held: ‘The . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 20 December 2021; Ref: scu.199474

Ferguson v M’Culloch: SCS 22 Nov 1865

Court of Session Inner House Second Division – The grandfather and father of Hugh Ferguson have, and Hugh Ferguson, the heir of the latter, has, since his father’s death, possessed a certain portion of ground, the possession extending for upwards of seventy years, on which houses were built and erections made. The ground was part of the estate of Bonhill, which belonged to the ancestors of Mr Smollett, and now belongs to himself. The plots of ground in the neighbourhood were let by Mr Smollett’s ancestor on building leases for 99 years, and in the lease of an adjoining plot, that on which the present claim is founded is described as a lot of ground set to John Ferguson. A plan of the village of Alexandria, containing an entry in name of John Ferguson, a series of receipts for rent, and a formal lease dated, however, on the day that the Registration Court was held, constituted the written title of the appellant. The question in law was whether this was a sufficient one either under the 7th or 9th sections of 2d and 3d Will IV. c. 65.

[1865] SLR 1 – 49
Bailii
Scotland

Land

Updated: 20 December 2021; Ref: scu.575129

Harringay Meat Traders Ltd v Greater London Authority: UTLC 10 Jul 2014

UTLC COMPENSATION – limitation – vesting of land pursuant to a general vesting declaration – section 10(3), Compulsory Purchase (Vesting Declarations) Act 1981 – adjoining parcels of land vesting on different dates – whether limitation period commences only on the last of the vesting dates – whether Tribunal has power to extend time – reference brought after expiry of limitation period and to be struck out

[2014] UKUT 302 (LC)
Bailii
Compulsory Purchase (Vesting Declarations) Act 1981 10(3)
England and Wales

Land

Updated: 20 December 2021; Ref: scu.536066

In The Petition of East Renfrewshire Council for An Order Under Section 75, of The Local Government (Scotland) Act 1973: SCS 19 Aug 2014

Outer House – A school was situated on common good land. To finance its repair and rehabilitation, the local council sought to sell it to a finance company taking a long lease back, and now sought an order permitting it to do so.
Held: The petition was refused as unnecessary. There was nothing that would constitute a disposal by the petitioners for the purposes of section 75(2). On the contrary, I consider that the petitioners’ proposals are properly to be characterised as appropriation. In essence, all that would change would be that the land would cease permanently to be used by the petitioners for the common good, and would be used by them instead for other purposes, namely the provision of education. In my opinion that could not reasonably be described as anything other than appropriation of inalienable common good land, which appropriation this court has no power to authorise.

Lord Tyre
[2014] ScotCS CSOH – 129
Bailii
The Local Government (Scotland) Act 1973 75
Scotland

Land, Local Government

Updated: 20 December 2021; Ref: scu.535841

May and Another v Gosport Borough Council: UTLC 8 Jan 2014

UTLC COMPENSATION – compulsory purchase – two maisonettes on former Ministry of Defence residential estate compulsorily acquired for regeneration purposes – value of long leasehold interests – comparables – weight to be attached to settlement evidence – value of claimants’ interests determined at andpound;34,000 and andpound;31,750 – disturbance – surveyor’s fees

[2013] UKUT 632 (LC)
Bailii
England and Wales

Land, Damages

Updated: 20 December 2021; Ref: scu.535672

Miller v Network Rail Infrastructure Ltd: UTLC 8 Jul 2014

UTLC COMPENSATION – preliminary issue – pressure relief shaft constructed under licence – purpose of compulsory acquisition – whether land specially suitable for use as PRS – meaning of ‘special Act’ under s7 of Compulsory Purchase Act 1965 – whether valuation can take account of cost saving to acquiring authority of not having to remove shaft

A J Trott FRICS
[2014] UKUT 264 (LC)
Bailii
Compulsory Purchase Act 1965 7
England and Wales

Land, Damages

Updated: 18 December 2021; Ref: scu.535661

Maries, Regina (on The Application of) v London Borough of Merton: Admn 31 Jul 2014

Challenge to the lawfulness of the defendant’s decision of June 2013 to lock entrances to the bowling green area on the Dundonald Recreation Ground and to erect two signs on the perimeter of the bowling green area and on the perimeter of the tennis court area, purportedly informing the public that the bowling facility had now closed and any use of the Green for bowling was not permitted, and the courts were only available to the public outside school operating hours.

King J
[2014] EWHC 2691 (Admin)
Bailii
England and Wales
Citing:
See Also – Maries, Regina (on The Application of) v London Borough of Merton Admn 31-Jul-2014
The claimant challenged the use by the respondent of powers of appropriation of land under the 1972 Act, opposing the development of the local recreation ground appropriated by them. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 December 2021; Ref: scu.535534

CLP Holding Company Ltd v Singh and Another: CA 31 Jul 2014

The claimant agreed to sell to the defendants a freehold property in Smethwick in the West Midlands. Completion took place on that same day. The central issue on this appeal is whether the defendants are liable to pay to the claimant the VAT charge on that transaction.

Arden, Kitchin, Gloster LJJ
[2014] EWCA Civ 1103
Bailii
England and Wales

Land, VAT

Updated: 18 December 2021; Ref: scu.535444

Barclays Bank plc v Alcorn: ChD 2002

Hart J said: ‘It seems to me however, that her general submission on the effect of the Human Rights Act in relationship to a mortgagee’s action for possession is correct, namely, that the matter is regulated by section 36 of the Administration of Justice Act 1970 in a way which draws a balance which Parliament was entitled to draw between the interests of occupants of dwelling houses and the interests of mortgagees, and does so in a manner which is proportionate and reasonable, and allows the court, in the exercise of its discretion, to apply criteria of reasonableness and proportionality in either granting or denying the mortgagee its remedy.’

Hart J
[2002] EWHC 498 (Ch)
Administration of Justice Act 1970
England and Wales
Cited by:
Appeal from – Barlcays Bank Plc v Alcorn CA 17-May-2002
Renewed application for leave to appeal. . .
Cited – Horsham Properties Group Ltd v Clark and Another ChD 8-Oct-2008
The court was asked whether section 101 of the 1925 Act infringes the Convention rights of residential mortgagors by allowing mortgagees to overreach the mortgagor by selling the property out of court, without first obtaining a court order either . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Land

Updated: 18 December 2021; Ref: scu.276785

Hereford and Worcester County Council v Newman: CA 1975

The council had been found responsible by the magistrates for allowing footpaths to be ‘out of repair’. The paths were unusable for various reasons including having a hawthorn hedge growing down the middle, and having barbed wire fencing strung across.
Held: The appeal was allowed in part. A roadway was ‘out of repair’ within the statute only if the road surface itself was in some way disturbed. It was not want of repair merely not to remove something which had fallen across it. A fence which passed across a pathway was not out of repair as such. The hedgerow did affect the surface and those paths were out of repair.
Cairns LJ said: ‘I consider that a highway can only be said to be out of repair if the surface of it is defective or disturbed in some way. Not every defect in the surface would constitute being out of repair – e.g. an icy road would not in my view be out of repair. But if the surface is in a proper condition I do not think it can ever be said that the highway is out of repair . . I cannot imagine anybody describing the presence of such a fence as a want of repair of the path . . The other two paths have a substantial growth of vegetation in them. That vegetation no doubt constitutes an obstruction, but it must also interfere with the surface of the paths. If there had been merely branches and thorns overhanging from the sides of the footpaths I should not consider that they were out of repair, but I understand that a hawthorn hedge in one case and thick undergrowth in the other is actually rooted in the surface of the paths. With some hesitation I am of the opinion that this did cause the paths to be out of repair.’

Cairns, Lawton LJJ And Mackenna J (Dissenting)
[1975] 2 All ER 673, [1975] 1 WLR 901
Highways Act 1959 44(1)(a) 59(4)(b)
England and Wales
Citing:
Cited – Regina v Heath QBD 1865
The highways board had sought and obtained an order against a householder who had built an extension part way over the highway. He had been orderd to pay costs but the taxed costs left a shortfall. The board now sought the difference from the . .
Appeal from – Worcestershire County Council v Newman QBD 1974
A complaint had been made to the magistrates that the authority had failed in its duty to repair pathways. The paths were crossed by fencing, by barbed wire, and vegetation had grown. . .
Limited – Bishop v Consolidated London Properties Ltd 1933
Lord du Parq treated the landlord’s duty of repair as including the removal of blockages from rainwater downpipes: ‘to repair after all merely means to prepare or make fit again to perform its function: it means to put in order.’ . .
Cited – London and North Eastern Railway Company v Berriman HL 1946
Railway workers duties outside scope for damages
A railway worker’s widow sought compensation after her husband was killed by a train.
Held: He had been involved in routine maintenance and oiling at the time of the accident and was not ‘relaying or repairing’ tracks. She was not entitled to . .

Cited by:
Cited – Haydon v Kent County Council CA 1978
Impacted snow and ice had built up on a steep, narrow, made-up footpath from Monday to Thursday during a short wintry spell. The plaintiff slipped and broke her ankle. The highway authority operated a system of priorities. Their resources were fully . .
Cited – Department for Transport, Environment and the Regions v Mott Macdonald Ltd and others CA 27-Jul-2006
Claims arose from accidents caused by standing water on roadway surfaces after drains had not been cleared by the defendants over a long period of time. The Department appealed a decision giving it responsibility under a breach of statutory duty . .

Lists of cited by and citing cases may be incomplete.

Local Government, Land

Updated: 18 December 2021; Ref: scu.237583

Regina v Heath: QBD 1865

The highways board had sought and obtained an order against a householder who had built an extension part way over the highway. He had been orderd to pay costs but the taxed costs left a shortfall. The board now sought the difference from the defendant, who objected that these costs did not arise from an attempt to repair the highway. The Board argued that the sum represented only the cost of a repair, and were recoverable as ‘other expenses in relation to such highways’. The parish replied that the Acts made distinctions between repair of highways and removal of obstructions.
Held: Disussing the sections of the 1835 Act at issue, Crompton J said that the sections are cumulative. When counsel attempted to distinguish between the costs of removing an obstruction and the costs of litigation, he was answered by Cockburn CJ: ‘If the surveyor is entitled to charge the expense of removing a nuisance by manual or mechanical labour, why is he not entitled to charge the expense of doing it by legal proceediings adding, ‘Litigation leads to the same end’ and ‘If this had been the case of a prosecution by the surveyor under the former Act for removing an obstruction on a highway I should have been disposed to hold that he had power to include the expenses of it in a highway rate; for by sect. 27 he was directed to make a rate in order to raise money for carrying the several purposes of that Act into execution. The main purpose of the Act was to repair the highways and keep them in a proper condition; but the existence of an obstruction on a highway amounting to a nuisance is inconsistent with that condition. And therefore, according to a wise and liberal construction of the Act the expenses of such a prosecution might have been fairly and legitimately included in the highway rate.’ The expenses claim fell within the wider provisions of s20.

Crompton J, Cockburn CJ
(1865) 6 B and S 578
Highways Act 1835 6 27, Highways Act 1862 20
England and Wales
Cited by:
Cited – Hereford and Worcester County Council v Newman CA 1975
The council had been found responsible by the magistrates for allowing footpaths to be ‘out of repair’. The paths were unusable for various reasons including having a hawthorn hedge growing down the middle, and having barbed wire fencing strung . .
Cited – Goodes v East Sussex County Council HL 16-Jun-2000
The claimant was driving along a road. He skidded on ice, crashed and was severely injured. He claimed damages saying that the Highway authority had failed to ‘maintain’ the road.
Held: The statutory duty on a highway authority to keep a road . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 December 2021; Ref: scu.237587

Re Lyne-Stephens and Scott-Miller’s Contract: CA 1920

A vendor of a house was entitled to retain the benefits of payments from a tenant made between contract and completion, because the vendor had sold the house but not yet also the benefit of the lease.

[1920] 1 Ch 472
England and Wales
Cited by:
Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .

Lists of cited by and citing cases may be incomplete.

Contract, Land, Landlord and Tenant

Updated: 18 December 2021; Ref: scu.223743

Newell and others v Secretary of State for the Environment and Another; Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment and Another: HL 17 Feb 2000

Where a certificate of appropriate development was issued for land to be acquired compulsorily, the land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long expectation of that particular proposal and its consequences and not by reference to another proposal which it replaced.

Lord Browne-Wilkinson, Lord Hope of Craighead, Lord Clyde, Lord Hobhouse of Wood-borough, Lord Millett
Times 23-Feb-2000, Gazette 02-Mar-2000, [2000] UKHL 10, [2000] 2 AC 307, [2000] 1 All ER 929, [2000] 2 WLR 438
House of Lords, Bailii
Land Compensation Act 1961 22(2), Planning and Compensation Act 1991 65(1)
England and Wales
Citing:
At first instance – Fletcher Estates (Harlescott) Ltd and Executors of J V Longmore v Secretary of State for Environment and Secretary of State for Transport Admn 10-Jun-1997
The date of the acquiring proposal is the date to consider as to planning aspects on deciding whether to quash a certificate of appropriate development. . .
Appeal from – Secretary of State for Environment v Fletcher Estates (Harlescott) Limited and Secretary of State for Environment v Newell; Longmore and Longmore (the Executors of J V Longmore) CA 11-Jun-1998
Land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long expectation of that particular proposal and its consequences and not by reference to another proposal . .
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 . .
Distinguished – Grampian Regional Council v Secretary of State for Scotland HL 1983
The House endorsed the practice of imposing negative conditions in planning consents, upholding the validity of a condition that the development of the site could not commence until the road on the western boundary of the site had been closed by a . .
Cited – Jelson v Minister of Housing and Local Government CA 1969
A proposed ring road had been cancelled. The landowners applied for certificates of appropriate alternative development. The Minister confirmed the negative certificates which had been issued by the local planning authority. It was contended that . .
Cited – Grampian Regional Council v Secretary of State for Scotland SCS 1983
The Regional Council appealed against the Secretary of State’s decision to issue positive certificates. Lord Dunpark said: ‘Counsel for all parties agreed that the grantor of the certificate must disregard the proposal to acquire. The issue between . .

Cited by:
Cited – South Lanarkshire Council v The Lord Advocate As Representing the Scottish Ministers and others IHCS 30-Aug-2001
Following a planning permission the applicant’s land became subject to compulsory purchase, and they were entitled to a certificate of appropriate alternative development. An application was made, but much later, and then granted on appeal. The . .
Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .

Lists of cited by and citing cases may be incomplete.

Land, Planning

Updated: 18 December 2021; Ref: scu.159045

Hitchin Cow Commoners Trust, Re: ChD 5 Dec 2001

Land was registered as a common. Rights had been created over the land under the 1882 Act after the Inclosure Acts. Were these rights in the nature of charitable trusts? No use of the land as a cow common had taken place with living memory, and most of the land had been occupied as a football club under leases.
Held: The issue was as to whether trust was for the intended beneficiaries as a class of resident freemen, or a decision of general application on the nature of the interest of commoners in the compensation fund. The beneficiaries of the trust for use as common land for grazing are the occupiers from time to time. The Commissioners had correctly declared a trust of the land, and being a trust for the residents of a town, it was charitable.

Mr Justice Lawrence Collins
[2001] EWHC Ch 468
Bailii
Commons Registration Act 1965, Commonable Rights Compensation Act 1882
England and Wales
Citing:
Cited – Nash v Coombs 1868
The parties disputed interests in a sum of andpound;3053 paid by the Midland Railway Company for the acquisition in 1866 of common land. The right of common was vested in resident freemen as a result of an award of the Inclosure Commissioners in . .
Cited – Re Christchurch Inclosure Act 1888
. .
Cited – Peggs and Others v Lamb and Others ChD 20-Apr-1993
Where beneficiaries had dwindled and income increased, the class of beneficiaries was extended. A gift to a class of people would be construed to be charitable unless there was something in the gift to exclude the presumption. It had been submitted . .
Cited – Re Hadden ChD 1931
A trust of land for its use for the purposes of public recreation such as playing fields, parks, and gymnasiums, is charitable. Clauson J construed the late Mr Hadden’s will as establishing a trust for the supply of healthy recreation carried on . .
Cited – Brisbane City Council v Attorney General for Queensland PC 1978
Lord Wilberforce approved Somervell LJ’s words in Greenhalgh: ‘This is the true basis of the doctrine in Henderson v Henderson and it ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party . .

Lists of cited by and citing cases may be incomplete.

Land, Charity

Updated: 18 December 2021; Ref: scu.167104

Blackmore v London and South Western Railway Company: 1868

(1868) 38 LJ Ch 19
England and Wales
Cited by:
Appeal From – London and South Western Railway Company v Blackmore HL 5-Jul-1870
In 1861 the railway company used its statutory powers to buy some of Mr Blackmore’s land for railway purposes. In 1864 they had a dispute over their boundary. This was settled by an agreement that he should build a wall to be maintained at their . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 December 2021; Ref: scu.456511

Bottomley v Bannister: CA 1932

The deceased man, the father of the plaintiff, had taken an unfurnished house from the defendants, who had installed a gas boiler with a special gas-burner which if properly regulated required no flue. The deceased and his wife were killed by fumes from the apparatus.
Held: The apparatus was part of the realty and the landlord did not know of the danger, and was not liable. The court discussed the result if it had ben a chattel. It was not easy to reconcile all the authorities, and there was no authority binding on the Court of Appeal that a person selling an article which he did not know to be dangerous can be held liable to a person with whom he has made no contract by reason of the fact that reasonable inquiries might have enabled him to discover that the article was in fact dangerous.
The general rule at common law was also applied by analogy to a vendor of land. Scrutton LJ said: ‘Now it is at present well established English law that, in the absence of express contract, a landlord of an unfurnished house is not liable to his tenant, or a vendor of real estate to his purchaser, for defects in the house or land rendering it dangerous or unfit for occupation, even if he has constructed the defects himself or is aware of their existence. ‘

Greer LJ , Scrutton LJ
[1932] 1 KB 458
Lord Campbell’s ActFatal Accidents Act 1846
England and Wales
Cited by:
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .

Lists of cited by and citing cases may be incomplete.

Negligence, Land

Updated: 18 December 2021; Ref: scu.188796

Sheffield Masonic Hall Co Ltd v Sheffield Corporation: 1932

In considering whether a right to light was infringed, and where a room had light from another source, which also could be potentially interfered with (but not by the Defendant), the amount and interference permitted by the Defendant is only that available after an assumption that the light passing into the other window has similarly been interfered with.
Maughan J: ‘At the moment when the right is acquired by the plaintiff company in respect of both of the two windows on the North and the two windows on the East, I think that the nature of the restrictive obligation imposed upon people facing those two windows is that they were not so built as by their joint action to cause a nuisance to the plaintiff company within the meaning of that term as used by the House of Lords in Coils v. home and Colonial Stores.. in other words, I think that the proper view is that the owner of Blackacre can build to such height as, with a similar building by the owner of Whiteacre, will yet leave sufficient light for the Masonic Hall. The obligations of both owners are the same; neither has a greater obligation than the other in the simple case which I am considering.’ and ‘ . . J see no reason to suppose that at some not distant date the owners of those premises will not desire to erect a substantial building right up to the corner of the building line.’.

Maugham J
[1932] 2 Ch 17
England and Wales
Cited by:
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 December 2021; Ref: scu.222597

Billington (By Billington Her Next Friend) Billington, Warburton v Blackshaw: CA 16 Dec 1997

The court had set aside a conveyance at an undervalue by a mother to one of her children. There was evidence to doubt her capacity at the time.
Held: There was evidence of senile dementia, and the presumption applied. The judge had dealt fairly with the appellants, and the appeal was denied.

[1997] EWCA Civ 3003
England and Wales
Citing:
Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited – In Re Beaney deceased ChD 1978
A gift made inter vivos by a mother of three children to one of them alone of the mother’s only asset of value, at a time when she was in an advanced state of senile dementia, was void because the claims of the donee’s siblings and the extent of the . .
Cited – Goldsworthy v Brickell CA 1987
The plaintiff had granted a tenancy of his substantial farm to the first defendant, and made him a partner. The first defendant later bought out the plaintiff who was in turn later reconciled with his only son who had previously had some . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 December 2021; Ref: scu.143402

London and South Western Railway Company v Blackmore: HL 5 Jul 1870

In 1861 the railway company used its statutory powers to buy some of Mr Blackmore’s land for railway purposes. In 1864 they had a dispute over their boundary. This was settled by an agreement that he should build a wall to be maintained at their joint expense. The agreement included a release of claims in general terms. In 1866 the railway company decided that it did not need the land it had taken and proposed to sell it as surplus land. Mr Blackmore claimed that, as the person from whom it had been taken, he had a statutory right of pre-emption under the Land Clauses Consolidation Act 1845. The railway company argued (rather faintly, it would seem, by their second counsel) that it fell within the description of claims which he surrendered when settling the boundary dispute.
Held: Where a release of a contractual obligation is given, its language will be interpreted having regard to the surrounding circumstances against which it came into existence and with special reference to the ambit of the dispute that was the occasion of its creation.
Lord Westbury said: ‘The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given. But a dispute that had not emerged, or a question which had not at all arisen, cannot be considered as bound and concluded by the anticipatory words of a general release.’

Lord Westbury, Lord Hatherley LC
(1870) 4 AC 610, (1870) LR 4 HL 610, (1870) LJ Ch 713, (1870) 23 LT 504, (1870) JP 324, (1870) 19 WR 305, 39 LJCh 713, [1870] UKLawRpHL 13
Commonlii
Land Clauses (Consolidation) Act 1845 127 128
England and Wales
Citing:
Appeal From – Blackmore v London and South Western Railway Company 1868
. .

Cited by:
Cited – Tiffany Investments Ltd and Another v Bircham and Co Nominees (No 2) Limited and others CA 4-Dec-2003
The tenancy was a long lease at a low rent under the 1954 Act, and so had continuing protection under the 1977 Act whilst occupied by the original tenant. The lease was assigned and registered. It had been conditional upon an application to purchase . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 December 2021; Ref: scu.192031

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 to the validity of the charge, and now applied for summary judgment.
Held: Applying section 1(3) of the 1989 Act, the charge was ineffective to convey a legal estate. Nevertheless registration had been completed, and the bank was able to rely on section 51 of the 2002 Act to give it effect.
The trustees were not estopped from relying on the invalidity of the charge (Briggs v Gleeds applied).
The sums were dueto te bank. The Trustees were not estopped from relying upon the failure to have te execution of the deed witnessed, but, having been registered, the Bank was entitled to rely on the Registration to have an equitable charge.

Behrens HHJ
[2014] EWHC 2117 (Ch)
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 1(3), Law of Property Act 1925 52, Land Registration Act 2002 51
England and Wales
Citing:
Distinguished – 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 . .
Applied – 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.
Registered Land, Land, Estoppel

Updated: 17 December 2021; Ref: scu.535162

Hoblyn v Barclays Bank Plc And The Accountant In Bankruptcy: SCS 11 Jun 2014

The pursuer seeks reduction of a sheriff court decree authorising her eviction from her home at an address in Clarkston, Glasgow; suspension of any diligence following thereon; and interdict against Barclays Bank (the first defenders) from selling the property.

Lady Paton
[2014] ScotCS CSIH – 52
Bailii

Scotland, Land

Updated: 16 December 2021; Ref: scu.534131

Northern Ireland Renewables Ltd v Carey: ChNI 13 May 2014

ChNI The principal relief sought with relevance to this judgment was an order for specific performance of a contract made, on the plaintiff’s contention, on 1 December 2010 by notice pursuant to an option agreement of 5 December 2003 requiring the defendant to grant a lease of premises to the plaintiffs in the terms set out in a draft lease annexed to the said option agreement.

[2014] NICh 15
Bailii
Northern Ireland

Land, Contract

Updated: 16 December 2021; Ref: scu.534077

Webster v Bakewell Rural District Council (No 2): 1916

The plaintiff was life tenant of a cottage adjoining the highway. Over a period of time, scrapings from the road had accumulated to form a bank which suited the plaintiff. The defendant, wanting to repair the roadway, removed the bank, and the plaintiff sued.
Held: The plaintiff’s claim had no prospect of success, and was to be struck out as an abuse of process. The authority had acted within its rights and no actionable damage had arisen.

(1916) 115 LT 678, (1916) LJ Ch 89, (1916) 80 JP 437, (1916) 14 LGR 1109
Cited by:
Cited – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .

Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 16 December 2021; Ref: scu.463535

In Re Beechwood Homes Limited’s Application: CA 1994

Dillon LJ said that the case had proceeded below in the Lands Tribunal and had, therefore, to proceed in the Court of Appeal on the common basis that the power to consent to breach of a covenant was a dispensing power attached to another otherwise absolute prohibition.

Dillon LJ
[1994] 2 EGLR 178
England and Wales
Cited by:
Binding – Briggs v McCusker 1996
Where one of the plots subject to a building scheme had been sub-divided, the benefit of the covenant in the scheme which originally burdened the whole plot did not pass to the owner of one of the subdivided plots so as to enable that owner to . .
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 December 2021; Ref: scu.406783

Todd v Hoggart: 21 Dec 1827

In an action to recover the deposit on the purchase of an estate on the ground of a defect in the vendor’s title, specified on rescinding the contract, no objection can be insisted on at the trial which was not stated as a reason for refusing to complete the contract, if it be of such a nature that it might, if then stated, have been removed.

[1827] EngR 886, (1827) M and M 128, (1827) 173 ER 1105 (B)
Commonlii
England and Wales

Land

Updated: 16 December 2021; Ref: scu.324640

Bird v The Great Eastern Railway Company: 13 Jun 1865

By a memorandum not under seal, the plaintiff hired of the owner of land the sole and exclusive liberty of shooting arid fishing over it for three years. A portion of the land was (pending the term) sold to the defendants, who constructed a line of railway across it, to the great detriment of the plaintiff’s right of sporting :-Held, that the plaintiff had not such an interest in the lands as to entitlement to claim compensation under the Lands Clauses Consolidation Act, 1845.–2. semble, that a grant under seal would have given him no better title.

[1865] EngR 573, (1865) 19 CB NS 268, (1865) 141 ER 790
Commonlii
England and Wales

Land

Updated: 16 December 2021; Ref: scu.281485

Bowen and Others v Isle of Wight Council: ChD 3 Dec 2021

What makes a road a Road?

The Court was asked whether a Road was a ‘road’ for the purposes of the 1984 Act’
Held: It has often been said that the public access mentioned in the definition of ‘road’ must be both actual access and legal or lawful access. However, simple reference to a requirement of lawfulness is capable of being rather misleading. Since 1931 the courts in this jurisdiction and in Scotland, where the same definition has applied equally, have treated public access as falling within the terms of the definition if it is exercised with the permission of or the tolerance of the owner of the road. Such access may strictly speaking constitute a trespass, because a tolerated trespasser is a trespasser nonetheless. But access by the public will still satisfy the definition, provided it is not exercised in the face of, or in defiance of, efforts by the owner to prevent access: that is, provided it is exercised with the owner’s tolerance. There is perfectly good reason why this should be so, and it is referred to in the cases: the, or at least an, underlying purpose of the legislation relating to traffic regulation and motoring offences, to which the definition applies, is the safety of the public who have access to the roads; and the important question is not whether their presence on the road is impliedly permitted or merely tolerated but whether the road is one on which they may reasonably be expected to be present. The case of members of the public who wilfully defy prohibitions by entering onto private land where they clearly have no right to be is, for this reason, different from the present case, where members of the public habitually use a road that appears to be no different from any other road.

His Honour Judge Keyser QC,
Sitting as a Judge of the High Court
[2021] EWHC 3254 (Ch)
Bailii
Road Traffic Regulation Act 1984 1
England and Wales
Citing:
Cited – Harrison v Hill 1932
Mr Harrison was convicted by the Sheriff-substitute of an offence under section 7(4) of the 1930 Act on the ground that, while disqualified from holding a driving licence, he had driven a vehicle on a specific road. The Sheriff-substitute stated a . .
Cited – Houghton v Scholfield QBD 1973
The Court was asked whether the cul-de-sac to which the TRO applied was a ‘road’ within the definition in section 104 of the 1967 Act. At 243-244 Lord Widgery CJ, with whom Melford Stevenson and Brabin JJ agreed, said:
‘On the question of what . .
Cited – Cheyne v MacNeill HCJ 1973
A motorist was convicted of an offence of driving a vehicle on a road without due care and attention contrary to section 3 of the 1960 Act. The question for the High Court was whether the road was a road to which the public had access. The road, a . .
Cited – Treloar v Nute CA 1976
The judge in the County Court had rejected a claim to adverse possession by a defendant who together with his father had done a number of acts, some more trivial than others, in and around a disputed gully and adjacent land leading eventually to the . .
Cited – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – Cox v White QBD 1976
Motoring offences under the 1972 Act were alleged. Justices dismissed the charges on the ground that the driving had not been proved to be on a ‘road’ within the statutory definition.
Held: The prosecutor’s appeal succeeded. the Divisional . .
Cited – Spence, Regina v CACD 23-Mar-1999
There was an allegation of an offence of dangerous driving contrary to section 2 of the 1988 Act. The issue was whether the car park where the driving had taken place, not being a road, was an ‘other public place’. The case turned on the fact that . .
Cited – Deacon v AT (a minor) QBD 1976
A 15-year old (Deacon or Deakin) who drove a motor car on a Council housing estate was charged with offences of driving a vehicle on a road A road in a housing estate, used only by those who resided in the estate or the visitors, and not by the . .
Cited – 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: . .
Cited – Adams v Commissioner of Police of the Metropolis QBD 1980
The Commissioner had been wrong to conclude that he could not bring prosecutions in respect of driving on a certain road because it was not a ‘road’ within the definition of the Road Traffic Act 1972. Having observed that ‘[c]ounsel and solicitors . .
Cited – Director of Public Prosecutins v Vivier QBD 1991
There had been a traffic accident in a large privately owned caravan park.
Held: Premises will be private where they are entered for reasons beneficial to the occupier. Referring to Harrison v Hill: ‘What Lord Sands, and indeed Lord Clyde, say . .
Cited – Clarke v Kato and Others; Cutter v Eagle Star Insurance Co Ltd HL 25-Nov-1998
Save exceptionally, a car park is not a road for the purposes of road traffic legislation on obligatory insurance. It is an unjustified strain on the language. A distinction made between the road ways and the parking bays was artificial and . .
Cited – May v Director of Public Prosecutions Admn 15-Apr-2005
Whether the car park where the driving took place was a ‘public place’ within the meaning of section 3.
Held: The appeal failed.
Laws LJ set out the following propositions as accurately summarising the relevant legal principles:
a. . .
Cited – Hallett v Director of Public Prosecutions Admn 8-Mar-2011
The defendant appealed by case stated against his conviction for driving with excess alcohol. He said that the ‘service road’ on which he had driven was not a ‘road or public place’.
Held: ‘The issue in this case being narrow, help to be . .
Cited – Pereira, Regina (on The Application of) v London Borough of Southwark Admn 3-Apr-2020
Judicial review of the decision by a review adjudicator to uphold a penalty notice issued by a local authority to the claimant for parking on a pavement forming part of a road. For part of its width, including the part where the vehicle had been . .
Cited – Director of Public Prosecutions v Richardson Admn 27-Nov-2014
The appellant had been convicted by justices of an offence of being in charge of a mechanically propelled vehicle on a public place while unfit through drink, contrary to section 4 of the 1988 Act. The issue was whether the vehicle was on a public . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 15 December 2021; Ref: scu.670315

Fairclough Homes Ltd, Re: LT 8 Jun 2004

Application was made to vary a restrictive covenant: ‘ . . how the character of the area and the amenities would be affected by the modification of the restriction is not in my view to be judged by envisaging the worst that could be done without breaching the restriction and comparing it with what the proposed modification is intended to permit . . In such a case as this, the provision, it seems to me, operates in this way. By preventing development that would have an adverse affect on the persons entitled to his benefit, the restriction may be said to secure practical benefits to them but if other developments having adverse affects could be carried out without breaching the covenant, these practical benefits may not be of substantial value or advantage. Whether they are of substantial value or advantage is likely to depend on the degree of probability of such other development being carried out and how bad, in comparison to the appellant’s scheme, the effects of that development would be.’

George Bartlett QC
[2004] EWLands LP – 30 – 2001, LP/30/2001
Bailii
Law of Property Act 1925 84
England and Wales
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. . .
Approved – Shepherd v Turner CA 2006
. .
Cited – Winter and Another v Traditional and Contemporary Contracts Ltd CA 7-Nov-2007
The land-owners applied for a variation of a restrictive covenant to allow them to put a second house on their plot. They had bought out the right of the original builder, but a neighbour also had the benefit of the covenant. They now appealed the . .

Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 13 December 2021; Ref: scu.225804

Methuen-Campbell v Walters: CA 1978

The curtilage of a house is narrowly confined to the area surrounding it and did not extend to a paddock. Buckley LJ said: ‘In my judgment, for one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part and parcel of the latter. There can be very few houses indeed that do not have associated with them at least some few squares yards of land, constituting a yard or a basement area or passageway or something of the kind, owned and enjoyed with the house, which on a reasonable view could only be regarded as part of the messuage and such small pieces of land will be held to fall within the curtilage of the messuage. This may extend to ancillary buildings, structures or areas such as outhouses, a garage, a driveway, a garden and so forth. How far it is appropriate to regard this identity as parts of one messuage or parcel of land as extending must depend on the character and the circumstances of the items under consideration. To the extent that it is reasonable to regard them as constituting one messuage or parcel of land, they will be properly regarded as all falling within one curtilage; they constitute an integral whole …’

Goff LJ, Buckley LJ
[1978] 2 EGLR 58, [1979] 1 All ER 606, [1979] QB 525
Leasehold Reform Act 1967 2(3)
England and Wales
Citing:
Cited – Trim v Sturminster Rural District Council CA 1938
The ‘appurtenances’ of a house are confined to the curtilage of the house. . .

Cited by:
Cited – Crockett v Secretary of State for Transport, Local Government and the Regions and another Admn 24-Oct-2002
The applicant built a shed on land behind his bungalow, but without planning consent. The planning authority issued enforcement proceedings. He appealed, contending that it fell within the Order. The inspector visited the property, and decided that . .
Cited – Dyer v Dorset County Council CA 1988
The court discussed what was meant by the curtilage of the appellant’s house: ‘Thus the sole issue is whether Mr Dyer’s house is or is not within the curtilage of another building or, by the application of section 6 of the Interpretation Act 1978, . .
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 . .
Cited – Cadogan v McGirk CA 25-Apr-1996
The court considered whether the 1993 Act should be construed as expropriatory legislation and therefore was to be read strictly.
Held: The Court rejected the submission that the relevant provisions must be strictly construed because the 1993 . .
Approved – 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 – Dartmouth Court Blackheath Ltd v Berisworth Ltd ChD 27-Feb-2008
Tenants asserted a right of first refusal under the 1987 Act on a proposed disposal of the freehold. . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Land

Updated: 13 December 2021; Ref: scu.181013

Smeaton v Ilford Corporation: ChD 1954

Overloading caused the corporation’s foul sewer to erupt through a manhole and discharge ‘deleterious and malodorous matter’ into Mr Smeaton’s garden.
Held: The authority were not liable for the connections with the sewer and discharge of their sewage into it.
The court denied the possibility of pursuing a claim for damages in nuisance where there was a statutory remedy available: ‘No doubt the defendant corporation are bound to provide and maintain the sewers (see section 14 of the Public Health Act 1936), but they are not thereby causing or adopting the nuisance. It is not the sewers that constitute the nuisance; it is the fact that they are overloaded. That overloading, however, arises not from any act of the defendant corporation but because, under section 34 of the Public Health Act 1936 . . they are bound to permit occupiers of premises to make connexions to the sewer and to discharge their sewage therein . . Nor, in my judgment, can the defendant corporation be said to continue the nuisance, for they have no power to prevent the ingress of sewage into the sewer.’

Upjohn J
[1954] Ch 450, [1954] 1 All ER 923
Public Health Act 1936 14 34
England and Wales
Citing:
Followed – Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd CA 1953
The plaintiff brought an action for nuisance against the local authority for having discharged insufficiently treated effluent into the river Derwent.
Held: The plaintiffs: ‘have a perfectly good cause of action for nuisance, if they can show . .

Cited by:
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 – Bybrook Barn Garden Centre Ltd and Others v Kent County Council CA 8-Jan-2001
A culvert had been constructed taking a stream underneath the road. At the time when it came into the ownership of the local authority, it was adequate for this purpose. Later developments increased the flow, and the culvert came to become an . .
Cited – Barratt Homes Ltd v Dwr Cymru Cyfyngedig (Welsh Water) SC 9-Dec-2009
The developers wanted to construct their private sewer to the public sewer at a point convenient to them. The water company said a connection at the point proposed would overload the sewer, and refused. The developer claimed that it had the right to . .
Cited – Barratt Homes Ltd v Dwr Cymru Cyfyngedig (Welsh Water) QBD 1-Aug-2008
The parties disputed whether the water company had the right to refuse a connection with the public sewer at a point chosen by the developer.
Held: It would be objectionable to construe the statute in such a way as to preclude an undertaker . .

Lists of cited by and citing cases may be incomplete.

Utilities, Land

Updated: 13 December 2021; Ref: scu.188631

Mukerjee (Nee Sen) and Another v Sen and Others: ChD 11 Jul 2013

This action concerns a break-down in relations between the children of Asoke Kumar Sen (‘Asoke’), a leading Indian lawyer of his generation, and the rights to ownership of assets held within the Sen family in England and the United States.

The Honourable Mr Justice Sales
[2013] EWHC 1997 (Ch)
Bailii
England and Wales

Land

Updated: 13 December 2021; Ref: scu.512318

Bernstein of Leigh (Baron) v Skyviews and General Ltd: QBD 9 Feb 1977

The plaintiff complained that the defendant had flown over his and neighbouring properties and taken aerial photographs, and said that this was a gross invasion of his privacy, and that the defendant had invaded his airspace to do so. The plaintiff relied on the maxim: Cujus est solum ejus est usque ad coelum et ad inferos (whose is the soil his is also that which is above and below it).
Held: The claim failed. If the latin maxim were applied literally it would lead to the absurdity of trespass being committed every time a satellite passed over a suburban garden. The problem in this case was to balance the rights of a landowner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offered in the use of airspace. The best way to strike that balance in our present society was to restrict the rights of an owner in the airspace above his land to such height as was necessary for the ordinary use and enjoyment of his land and the structures upon it, and to declare that above that height he had no greater rights in the airspace than any other member of the public.

Griffiths J
[1977] EWHC QB 1, [1977] 3 WLR 136, [1977] 241 EG 917, [1977] 2 All ER 902, [1978] QB 479
Bailii
Civil Aviation Act 1949 40
England and Wales
Citing:
Cited – Wandsworth Board of Works v United Telephone Co CA 1884
A land-owner had the right to cut a wire wrongfully placed over his property. . .
Cited – Gifford v Dent 1926
It was a trespass over the plaintiff’s land for the defendant to erect a sign projecting 4 ft 8 in over the plaintiff’s forecourt. . .
Cited – Pickering v Rudd KBD 20-Jun-1815
Trespass into Air Space
The plaintiff had erected a board which extended over into his neighbour’s garden. The neighbour cut that down and a tree grown against his wall.
Held: Lord Ellenborough said: ‘I do not think it is a trespass to interfere with the column of . .
Cited – Commissioner for Railways v Valuer-General PC 1974
(New South Wales – Court of Appeal) The parties disputed the value of a property in the centre of Sydney beneath which there had been extensive excavations to a depth of 40 feet or more. The question was how the property was to be valued for rating . .
Cited – Kelson v Imperial Tobacco Company 1957
The defendant erected a sign which extended some 8ft into the plaintiff’s property.
Held: The plaintiff was entitled to a mandatory injunction requiring the defendant to remove the sign. The intrusion was a trespass. . .

Cited by:
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Dartmouth Court Blackheath Ltd v Berisworth Ltd ChD 27-Feb-2008
Tenants asserted a right of first refusal under the 1987 Act on a proposed disposal of the freehold. . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Land

Leading Case

Updated: 13 December 2021; Ref: scu.245443

Rossi v Rossi: FD 26 Jun 2006

W sought to challenge transactions entered into by H anticipating ancillary relief proceedings on their divorce. Nicholas Mostyn QC J said: ‘While of course no rigid rule can be expressed for the infinite variety of facts that arise in ancillary relief cases, I would have thought, generally speaking, that it would be very difficult for a party to be allowed successfully to prosecute an ancillary relief claim initiated more than 6 years after the date of the petition for divorce, unless there was a very good reason for the delay’

Nicholas Mostyn QC J
[2006] EWHC 1482 (Fam), [2007] Fam Law 104, [2007] 1 FLR 790, [2006] 3 FCR 271
Bailii
Partnership Act 1890, Trusts of Land and Appointment of Trustees Act 1996, Matrimonial Causes Act 1973
England and Wales
Citing:
Cited – Lombardi v Lombardi CA 1973
In an ancillary relief application, it was legitimate for the court to reflect in its award the fact that assets had been accumulated since separation by one party alone. Cairns LJ stated: ‘Another way in which the judgment is criticised is that it . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – P v P (Inherited Property) FD 2005
The court considered an application for ancillary relief where one party had inherited a family farm.
Held: The nature and source of the parties’ property are matter to be taken into account when determining the requirements of fairness. . .
Cited – GW v RW (Financial Provision: Departure from Equality) FD 18-Mar-2003
An entitlement to an equal division must reflect not only the parties’ respective contributions ‘but also an accrual over time’, and it would be ‘fundamentally unfair’ that a party who has made domestic contributions during a marriage of 12 years . .
Cited – Cowan v Cowan CA 14-May-2001
When considering the division of matrimonial assets following a divorce, the court’s duty was, within the context of the rules set down by the Act, to impose a fair settlement according to the circumstances. Courts should be careful not to make . .
Cited – N v N (Financial Provision: Sale of Company) FD 2001
The nature of the family assets may be taken into account when considering how they are to be divided in ancillary relief proceedings on divorce, where these are businesses which will be crippled or lose much of their value, if disposed of . .

Cited by:
Cited – Vince v Wyatt CA 8-May-2013
The parties had divorced some twenty years previously, but apparently without ancillary relief orders, the parties at the time being relatively poor. H was now wealthy and W applied for lump sum provision. H replied that there was no no evidence . .

Lists of cited by and citing cases may be incomplete.

Company, Land, Family

Updated: 12 December 2021; Ref: scu.247600

Wells v Pickering: ChD 17 May 2002

The rules required a court, looking to enforce a charging order, to look to any other competing proprietary interests. The claimant suggested that this should include the welfare interests of any child occupying the property as his or her home.
Held: The welfare interests were not proprietary interests. The rules made no specific provision for such interests and the normal rules applied.

Mr David Oliver, QC
Times 04-Jun-2002, Gazette 27-Jun-2002
Rules of the Supreme Court Order 88, rule 5A(2)(f)
England and Wales

Land, Children, Litigation Practice

Updated: 11 December 2021; Ref: scu.172219

Dahlia Ltd v Four Millbank Nominees Ltd and Another: CA 24 Nov 1977

Appeal against strike out of statement of claim. The plaintiffs had negotiated with the defendants for the purchase of several properties. Though formal contracts were never exchanged, the plaintiffs said that they had the benefit of a unilateral contract to enter into a binding written contract.

Buckley, Orr, Goff LJJ
[1977] EWCA Civ 5, [1978] Ch 231
Bailii
England and Wales
Citing:
Cited – Warlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .
Cited – Johnston v Boyes 1899
There is no custom that a purchaser at an auction can expect to have his personal cheque for a ten per cent deposit accepted. This applies even to those with a good credit standing as much as (here) for an apparent pauper.
Cozens Hardy J said . .
Cited – Warlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 11 December 2021; Ref: scu.262702

Hounslow Borough Council v Minchington: CA 1997

There may be circumstances where a squatter is deemed to be in actual possession of the land (a strip of rough land at the bottom of the appellant’s garden) providing he is the only person in effective control of it despite the fact that the true owner makes some limited use of the land, not amounting to effective control of it. One of the arguments concerned the significance of a fence which they had erected. Counsel argued that the fence had been erected to keep the squatters’ dogs in rather than to keep the paper owner out, and that consequently it did not demonstrate the necessary intention. Enclosure is strong evidence of discontinuance of possession.
Millett LJ considered a claim for adverse possession: ‘So far as the defendant’s animus possidendi is concerned, Mr Lewison relied upon the fact that Mrs Ritter and after her the defendant or Mr Collins’ enclosure of the land was in order to keep their dogs in rather than other persons out. But their motive is irrelevant. The important thing is that they were intending to allow their dogs to make full use of what they plainly regarded as their land, and which they used as their land. They wanted to keep their dogs within the boundaries of their own land. That was a perfectly understandable usage, but the enclosure which it made necessary was inconsistent with any continuance of possession of the council. The defendant and his predecessors in title had to keep the council out if they were to keep their dogs in.’

Millet LJ
(1997) 74 P and CR 221
England and Wales
Cited by:
Cited – Chambers v London Borough of Havering CA 20-Dec-2011
The defendant appealed against an order for him to surrender possession of land he had claimed by adverse possession. The Council was the registered proprietor. The defendant said he had used the land since 1981 for dumping of motor vehicle parts. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.450122

Farrell and Another v Brien and Another: ChNI 4 Feb 2016

In each of these actions the respective Plaintiffs issued Originating Summons seeking to recover possession of premises pursuant to Order 113 Rules of the Supreme Court (NI) 1980 on the grounds that they are entitled to possession and the defendants are in occupation without licence or consent.

McBride J
[2016] NICh 9
Bailii
Northern Ireland

Northern Ireland, Land

Updated: 10 December 2021; Ref: scu.564917

Grant v Edmondson: CA 1931

The distinctions required by the established rules as to whether a covenant ‘touches and concerns’ the land rules are quite illogical.

Romer LJ
[1931] 1 Ch 1
England and Wales
Cited by:
Cited – Harbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.263197

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,

Megaw LJ
[1969] CLY 3040
Law of Property Act 1925 62(1)
England and Wales
Cited by:
Cited – 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’ . .
Followed – 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 . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.240409

Treloar v Nute: CA 1976

The judge in the County Court had rejected a claim to adverse possession by a defendant who together with his father had done a number of acts, some more trivial than others, in and around a disputed gully and adjacent land leading eventually to the commencement of construction of a bungalow which precipitated the proceedings. Acts relied upon included the tipping of soil into the gully and the levelling of uneven ground. The judge had rejected the defendant’s claim as his actions and those of his predecessor had not initially inconvenienced the plaintiff title owner.
Held: The judge had found that the defendant’s father had taken possession as early as 1961 and, looked at overall, there had been sufficient possession over the period in issue to defeat the plaintiff’s paper title. The defendant’s appeal was allowed. If the paper owner was at one stage in possession of the land, but the squatter’s subsequent occupation of it in law constitutes possession, the squatter must have ‘dispossessed’ the true owner for the purposes of Schedule 1, paragraph 1.
Sir John Pennycuick said: ‘The particular acts found by the judge are we think rather on the borderline of what can properly be regarded as constituting possession, always apart from the consideration of adverse possession. Whether or not a person has taken possession of land is a question of fact depending on all the particular circumstances . . In the present case the disputed land is extremely small, about one-seventh of an acre and admitted of very limited agricultural use, but would be a convenient site for a small house or bungalow. The defendant’s father did put it to some small agricultural use by grazing two cows and a yearling. Much more important, in our view, is the change in the surface of the land by placing soil in the gully, thereby setting in train the levelling of the land upon which a bungalow could be built. It seems to us that these acts were sufficient to support a finding of possession and indeed on the material before us we would be disposed to reach the same conclusion. The other acts relied upon are of very little weight.’ And ‘if a squatter takes possession of land belonging to another and remains in possession for 12 years to the exclusion of the owner, that represents adverse possession and accordingly at the end of the 12 years the title of the owner is extinguished. That is the plain meaning of the statutory provisions’ ‘

Stamp and Ormrod LJJ and Sir John Pennycuick
[1976] 1 WLR 1295
England and Wales
Citing:
Cited – Lord Advocate v Lord Lovat 1880
Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in . .

Cited by:
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 – Bowen and Others v Isle of Wight Council ChD 3-Dec-2021
What makes a road a Road?
The Court was asked whether a Road was a ‘road’ for the purposes of the 1984 Act’
Held: It has often been said that the public access mentioned in the definition of ‘road’ must be both actual access and legal or lawful access. However, simple . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 10 December 2021; Ref: scu.259702

Lawrence and Another v Fen Tigers Ltd and Others: QBD 4 Mar 2011

The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. The defendants argued that the properties were in any event noisy because of proximity to RAF Mildenhall.
Held: A nuisance had been committed. The landlords of the properties were dismissed form the main action. The claimants had shown nothing to suggest that they had done anything to adopt any noise nuisance by their tenants. Several activities had been operated over the years with and without planning permissions, but the permissions could not be said to have altered the character of the area.
The law does not recognise an easement of noise, or an easement only exercisable between certain times of the day or on a limited number of occasions in the year. The prescription defence failed.
An injunction should be granted (in terms yet to be agreed), specific enough to avoid future difficulties, and damages awarded.
Though there had been intimidation, there was no evidence at all to connect any of the defendants with any act of intimidation. The claimants had failed to establish any entitlement to aggravated damages.

Richard Seymour QC J
[2011] EWHC 360 (QB), [2011] 4 All ER 1314
Bailii
Prescription Act 1832
England and Wales
Citing:
Cited – Rich v Basterfield 5-Feb-1846
A landlord can be liable in nuisance for the acts of his tenant where the very nature of the letting would lead to that nuisance: ‘If a landlord lets premises, not in themselves a nuisance, but which may or may not be used by the tenant so as to . .
Cited – Lippiatt and Febry v South Gloucestershire County Council CA 31-Mar-1999
The defendant had failed to remove travellers who had encamped on its land and caused nuisances against neighbouring farmers.
Held: The court refused to strike out a claim in nuisance by neighbouring land owners. It was arguable that a land . .
Cited – Sturges v Bridgman CA 1879
The character of the neighbourhood in which the plaintiff lives should, for the law of nuisance, include established features: ‘whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the . .
Cited – Southwark London Borough Council v Mills/Tanner; Baxter v Camden London Borough Council HL 21-Oct-1999
Tenants of council flats with ineffective sound insulation argued that the landlord council was in breach of the covenant for quiet enjoyment in their tenancy agreements.
Held: A landlord’s duty to allow quiet enjoyment does not extend to a . .
Cited – Dalton v Henry Angus and Co HL 14-Jun-1881
The court explained the doctrine of lost modern grant. Where there has been more than 20 years’ uninterrupted enjoyment of an easement, and that enjoyment has the necessary qualities to fulfil the requirements of prescription, then unless, for some . .
Cited – Tehidy Minerals Ltd v Norman CA 1971
The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the . .
Cited – Wheeler and Another v JJ Saunders Ltd and Others CA 19-Dec-1994
The existence of a planning permission did not excuse the causing of a nuisance by the erection of a pighouse. The permission was not a statutory authority, and particularly so where it was possible it had been procured by the supply of inaccurate . .
Cited – Gillingham Borough Council v Medway (Chatham) Dock Co Ltd CA 1992
Neighbours complained at the development of a new commercial port on the site of a disused naval dockyard. Heavy vehicle traffic at night had a seriously deleterious effect on the comfort of local residents.
Held: Although a planning consent . .
Cited – Allen v Gulf Oil Refining Ltd CA 1980
The exercise of the permission to develop granted by the local planning authority may have the result that the character of the neighbourhood changes and that which would previously have been a nuisance must be held no longer to be so
Cited – Elliotson v Feetham And Another 10-Jun-1835
The plaintiff complained of nuisance from smoke and noise generated by the defendant in adjacent workshops used for the making of iron. The defendant pleaded that he had been in occupation of his workshops for ten years before the plaintiff acquired . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – Crump v Lambert CA 1867
Lord Romilly MR considered the acquisition of a right to commit a nuisance by prescription.
Held: An injunction was granted to restrain the issue of smoke and noise. He said: ‘It is true that, by lapse of time, if the owner of the adjoining . .
Cited – Carr v Foster 1842
The plaintiff claimed a profit a prendre saying had been acquired under s.1 of the 1832 Act, by use for 30 years, the applicable period in relation to a profit a prendre. The evidence was that the right in question, to pasture cattle on a common, . .
Cited – Perlman v Rayden, Rayden ChD 7-Oct-2004
The parties had become embroiled in a particularly bitter boundary dispute. The claimants in particular sought aggravated damages saying that the defendants had misled them in securing agreement to works.
Held: Aggravated damages were awarded. . .
Cited – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Applied – Dobson and others v Thames Water Utilities Ltd and Another CA 29-Jan-2009
The claimants complained of odours and mosquitoes affecting their properties from the activities of the defendants in the conduct of their adjoining Sewage Treatment plant. The issue was as to the rights of non title holders to damages in nuisance . .
See Also – Lawrence and Another v Fen Tigers Ltd and Others QBD 18-Oct-2010
Application to strike out passages from witness statements. . .
See Also – Lawrence and Another v Fen Tigers Ltd and Others QBD 18-Oct-2010
The court made orders to assist the future management of the case. . .

Cited by:
Cited – Merthyr Tydfil Car Auction Ltd v Thomas and Another CA 11-Jul-2013
The company appealed against an award of 9,000 pounds for nuisance in the form of excessive noise and fumes.
Held: The appeal failed: ‘the grant of planning permission cannot authorise the commission of a nuisance but it may, following its . .
Appeal from – Coventry (T/A RDC Promotions and Another v Lawrence and Others CA 27-Feb-2012
The appellants, owners of a motor sport racing circuit, appealed against a finding that their activities constituted a nuisance, given that they had planning permissions for the use.
Held: The appeal succeeded. The judge had erred in holding . .
At first instance – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Appeal from – Lawrence and Another v Fen Tigers Ltd and Others CA 2012
Jackson LJ set out the way in which planning consents would affect whether actions amounted to a nuisance: ‘I would summarise the law which is relevant to the first ground of appeal in four propositions. (i) A planning authority by the grant of . .
See Also – Coventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .

Lists of cited by and citing cases may be incomplete.

Land, Nuisance, Torts – Other

Updated: 10 December 2021; Ref: scu.430320

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 restating a few basic principles relating to the concept of possession under English law: In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to the persons who can establish a title as claiming through the paper owner.
If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (‘animus possidendi’).
The animus possidendi, which is also necessary to constitute possession, was defined by Lindley M.R., in Littledale v. Liverpool College (a case involving an alleged adverse possession) as ‘the intention of excluding the owner as well as other people.’ This concept is to some extent an artificial one, because in the ordinary case the squatter on property such as agricultural land will realise that, at least until he acquires a statutory title by long possession and thus can invoke the processes of the law to exclude the owner with the paper title, he will not for practical purposes be in a position to exclude him. What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.
The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.
Factual possession signifies an appropriate degree of physical control. It must be a single [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot be both in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed . . Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.
The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with a right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.’
Slade J said: ‘In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intention sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him.’ and
‘What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.’ and
‘Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession.’

Slade J
(1977) 38 P and CR 452
Limitation Act 1980
England and Wales
Citing:
Cited – Seddon v Smith 1877
Adverse possession was claimed over land subject to a private grant of a right of way. The defendant had a paper title to a strip of land along Molyneux Lane. The plaintiff sought damages for trespass, claiming for wrongful abstraction of coal from . .

Cited by:
Approved ‘Remarkable’ – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – Mayor and Burgesses of London Borough of Lambeth v George Bigden and Others CA 1-Dec-2000
A block of flats had been occupied over several years by a succession of squatters. The present occupiers appealed an order for possession, and the authority appealed refusal of possession for other flats. The occupiers asserted possessory title. . .
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 – 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 . .
Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Cited – Chapman and Another v Godinn Properties Ltd and others CA 27-Jun-2005
Dispute over right of way over land subject to claim for possessory title. ‘But each case must turn on its own facts. In a case of this nature, the court must ask itself what it is that would be expected of somebody in possession of land of this . .
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 – Allen v Matthews CA 13-Mar-2007
The defendants appealed an order refusing title by adverse possession to registered land. They denied that the limitation period had been restarted by their solicitor’s letter acknowledging the title.
Held: The letter must be read as a whole. . .
Cited – Godmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
Cited – Clear Channel United Kingdom Ltd, Regina (on the Application of) v First Secretary of State and Another Admn 14-Oct-2004
The claimant sought a declaration that it had a tenancy for its occupation by an advertising station, and that it had protection under the 1954 Act. The defendant council said that only a licence had been granted.
Held: The grants included the . .
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 – Lodge (T/A JD Lodge) v Wakefield Metropolitan Council CA 21-Mar-1995
The plaintiff had formerly been a tenant of the defendant under an informal tenancy. No rent had been paid since 1974. He claimed to have acquired the land by adverse possession. He gave evidence at trial that if he had been asked to pay rent at any . .
Cited – Ofulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
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 . .
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 . .
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 . .
Cited – The Port of London Authority v Ashmore CA 4-Feb-2010
The Port sought to register ownership of the river bed and tidal foreshore. The defendant’s boat had been moored at a wharf, and he claimed adverse possession. The court was asked whether it was possible to acquire any title by adverse possession to . .
Cited – Wilson and Another v Grainger ChD 4-Dec-2009
The claimants appealed against a decision of the Adjudicator that they had not acquired a piece of their neighbour’s land by adverse possession, on the basis that their use had been by virtue of an oral licence. The judge had found the occupation to . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Balevents Ltd v Sartori ChD 29-Sep-2011
A strip of land had at one point been left aside for an anticipated road widening which never took place. The defendant had eventually obtained a registered possessory title to it. The claimant, owner of a neighbouring plot, now challenged that . .
Cited – Zarb and Another v Parry and Another CA 15-Nov-2011
The parties disputed the position of the boundary between their neighbouring properties. The appellant Z had succeeded in establishing that the the boundary was as they decribed on paper, but the respondents had succeeded in their claim for adverse . .
Cited – Chambers v London Borough of Havering CA 20-Dec-2011
The defendant appealed against an order for him to surrender possession of land he had claimed by adverse possession. The Council was the registered proprietor. The defendant said he had used the land since 1981 for dumping of motor vehicle parts. . .
Cited – City of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .
Cited – London Borough of Southwark and Another v Transport for London SC 5-Dec-2018
Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 10 December 2021; Ref: scu.182281

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 using the land for their own purposes. The evidence was that the Plaintiff, the owner of the paper title, had no immediate use for the land but intended in due course to dedicate it for the purposes of a road diversion. Accordingly, the use made of the disputed land by the Defendants did not interfere with the proposed future use to which the true owner intended to devote the land.
Held: The Defendant had established a title by adverse possession, and the fact that the acts of ownership relied upon to establish his claim to adverse possession were not inconsistent with the use to which the true owner intended to put the land in the future was irrelevant. ‘Possession of land would never be ‘adverse’ within the meaning of the Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title, and his licence has not been duly determined, he can not be treated as having been in ‘adverse possession’ as against the owner with the paper title.’
Nourse LJ said: ‘The essential difference between prescription and limitation is that in the former case title can be acquired only be possession as of right. That is the antithesis of what is required for limitation, which perhaps can be described as possession as of wrong. It can readily be understood that with prescription the intention of the true owner may be of decisive importance, it being impossible to presume a grant by someone whose intention is shown to have been against it. But with limitation it is the intention of the squatter which is decisive. He must intend to possess the land to the exclusion of all the world, including the true owner, while the intention of the latter is, with one exception, entirely beside the point. In order that title to land may be acquired by limitation, (1) the true owner must either (a) have been dispossessed, or (b) have discontinued his possession, of the land; and (2) the squatter must have been in adverse possession of it for the statutory period before action brought . .’ Hoffmann LJ said that what is required is ‘not an intention to own or even an intention to acquire ownership but an intention to possess.’
Slade LJ referred to Powell v MacFarlane and said: ‘I agree with the judge that ‘what is required for this purpose is not an intention to own or even an intention to acquire ownership but an intention to possess’ – that is to say, an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title. No authorities cited to us establish the contrary proposition.’

Slade LJ, Nourse LJ, Butler-Sloss LJ
[1990] 1 Ch 623, [1989] EWCA Civ 11, [1990] Ch 632, [1989] 2 All ER 255
Bailii
Limitation Act 1980 15
England and Wales
Citing:
Disapproved – Leigh v Jack CA 11-Dec-1879
The plaintiff’s predecessor in title (Mr Leigh) had laid out part of his estate as proposed streets to be known as Grundy Street and Napier Place. He conveyed to the defendant certain land described as being ‘bounded by’ Grundy Street and Napier . .
Cited – Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd CA 10-Jul-1974
A strip of land between a holiday camp and a garage had been conveyed as an intended roadway. It had not been fenced. A plot of land was sold by the previous farmer to the garage. Later the plaintiffs bought the farm, excluding the roadway, and the . .
Cited – In Re Daintrey, Ex Parte Holt QBD 8-May-1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .
Cited – South Shropshire District Council v Amos CA 1986
Lord Justice Parker said that the use of the words ‘without prejudice’ prima facie meant that a letter was intended to be a part of negotiation. A letter which purported to initiate some sort of negotiation (‘an opening shot’) is not necessarily . .
Cited – Rains v Buxton 1880
rains_buxtonChD1880
Fry J said: ‘The difference between dispossession and the discontinuance of possession might be expressed in this way: the one is where a person comes in and drives out the others from possession, the other case is where the person in possession . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Treloar v Nute CA 1976
The judge in the County Court had rejected a claim to adverse possession by a defendant who together with his father had done a number of acts, some more trivial than others, in and around a disputed gully and adjacent land leading eventually to the . .
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:
Approved – Rhondda Cynon Taff Borough Council v Watkins CA 12-Feb-2003
Land had been purchased compulsorily, but the respondent unlawfully returned to possession in 1966, and now claimed title by adverse possession. The Council executed a vesting deed poll in 1988. The Council asserted that he could not be in adverse . .
Cited – Mayor and Burgesses of London Borough of Lambeth v George Bigden and Others CA 1-Dec-2000
A block of flats had been occupied over several years by a succession of squatters. The present occupiers appealed an order for possession, and the authority appealed refusal of possession for other flats. The occupiers asserted possessory title. . .
Cited – Mayor and Burgesses of London Borough of Hounslow v Anne Minchinton CA 19-Mar-1997
The defendant asserted title to a strip of land by adverse possession. The judge had held that the occupation by the claimant had been insufficient to establish possession.
Held: The use of the land as a garden for compost heaps and similar . .
Cited – Mayor and Burgesses of London Borough of Hounslow v Anne Minchinton CA 19-Mar-1997
The defendant asserted title to a strip of land by adverse possession. The judge had held that the occupation by the claimant had been insufficient to establish possession.
Held: The use of the land as a garden for compost heaps and similar . .
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 – Chapman and Another v Godinn Properties Ltd and others CA 27-Jun-2005
Dispute over right of way over land subject to claim for possessory title. ‘But each case must turn on its own facts. In a case of this nature, the court must ask itself what it is that would be expected of somebody in possession of land of this . .
Cited – Allen v Matthews CA 13-Mar-2007
The defendants appealed an order refusing title by adverse possession to registered land. They denied that the limitation period had been restarted by their solicitor’s letter acknowledging the title.
Held: The letter must be read as a whole. . .
Cited – Long v Tower Hamlets London Borough Council ChD 20-Mar-1996
The parties had agreed for a lease, and the tenant entered possession, but no formal lease was executed. The tenant stopped paying rent in 1977 or 1984. He now claimed rectification of the registers to show him as proprietor. The landlord argued . .
Cited – Ofulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
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 . .
Cited – 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 . .
Cited – Williams v Hull ChD 19-Nov-2009
The parties had bought a house together, but disputed the shares on which it was held. The appeal was on the basis that a without prejudice letter had been redacte and then wrongly admitted as not in fact without prejudice, an as an unambiguous . .
Cited – The Port of London Authority v Ashmore CA 4-Feb-2010
The Port sought to register ownership of the river bed and tidal foreshore. The defendant’s boat had been moored at a wharf, and he claimed adverse possession. The court was asked whether it was possible to acquire any title by adverse possession to . .
Cited – City of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 10 December 2021; Ref: scu.259373

Secretary of State for the Environment Transport and the Regions v Baylis (Gloucester) Ltd; Bennett Construction (UK) Ltd v Baylis (Gloucester) Ltd: ChD 16 May 2000

Land once conveyed for the purposes of becoming a highway, became dedicated for that purpose even though no steps were ever taken for its use for that purpose. The registration of a company as proprietor by the Land Registry did not displace the dedication since the interest was an over-riding one under the Act.
The dispute was about whether the strip of land in dispute, which adjoined the physical surface of the road, had ever been dedicated to the public as part of a highway, and that turned upon the true construction of a written agreement between the then owner and the county council. The adjacent highway (for which the dedicated strip was to facilitate an improvement) had later been designated a trunk road, but that had no consequence for the determination of the dispute. In an otherwise unimpeachable summary of the effect of land becoming part of a highway, Mr Lewison said: ‘The effect of ‘trunking’ a highway is that the highway vests in the Minister (now the Secretary of State). The extent of such vesting is such part of the land as is necessary for the highway authority to perform its statutory functions. It has been described as the ‘top two spits’.’

Mr Lewison QC
Times 16-May-2000, Gazette 31-May-2000, (2000) 80 P and CR 324
Land Registration Act 1925, Law of Property (Miscellaneous Provisions) Act 1989
England and Wales
Cited by:
Appeal from – Secretary of State for the Environment, Transport and the Regions v Baylis (Gloucester) Ltd and others CA 16-Dec-2002
. .
Cited – London Borough of Southwark and Another v Transport for London SC 5-Dec-2018
Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance . .

Lists of cited by and citing cases may be incomplete.

Land, Registered Land

Updated: 10 December 2021; Ref: scu.89097

Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another: CA 10 Mar 2010

The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse possession was not available against land forming part of a public highway.
Held: The appeal failed. To succeed the appellant must show two things: (1) that under the common law the title of the highway authority may be extinguished by adverse possession – and this means showing that a highway can be brought to an end in this way; (2) that the public’s right to use the highway is simultaneously extinguished. However a squatter can only acquire the title of the owner whom he has dispossessed. The public right to use the highway cannot be terminated by action which affects some members only of the public because the right belongs to them all, and the public is an ever-changing class.
Arden LJ discussed the maxim ‘once a highway always a highway’, saying: There is a long-standing saying ‘once a highway, always a highway’. English law has since at least the time of Bracton in the thirteenth century regarded ‘the King’s highway’, now the Queen’s highway, as incapable of ownership by any person other than the King or Queen. It is commonly assumed that there can be no adverse possession of any part of a highway . . However it is not possible to point to any decision from which the maxim is derived, and, moreover, there is no exception for public highways in the provisions facilitating adverse possession. Furthermore it is a common experience from time to time to find a highway wholly or partially obstructed for a temporary or permanent purpose, for example, by cafe tables, items displayed for sale, salt bins, street markets, public conveniences or other obstructions. In other words, there are situations in which people have, or appear to have, a right to occupy the highway to the exclusion of others. The saying that ‘once a highway always a highway’ cannot therefore be taken as an absolute and universal rule. There are some circumstances in which a highway can cease to be such on a permanent or temporary basis. One of the ways in which this might occur is under licence from the local authority granted under some statutory power. But can it occur through adverse possession?

Mummery, Arden, Elias LLJ
[2010] EWCA Civ 200, [2010] NPC 31, [2010] 11 EG 121, [2010] 3 All ER 113, [2010] 21 EG 92, [2010] 3 WLR 1223, [2011] 1 QB 413
Bailii
Wildlife and Countryside Act 1981, Highways Act 1980 263(1), European Convention on Human Rights 8
England and Wales
Citing:
Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Appeal from – 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 . .
Cited – Rolls v Vestry of St George the Martyr, Southwark CA 14-Jun-1880
The plaintiff owned land over which were two old streets. He obtained an order from the Magistrates stopping up the stopping up and diversion of parts in return for new streets matching the proposed area layout. The defendants, in whom the land had . .
Cited – Dawes v Hawkins 6-Jul-1860
A highway had been unlawfully stopped up by the adjoining owner and diverted by another route. It was held that the public had a right to deviate on to the adjoining land. The road was subsequently diverted back to its original route. Some years . .
Mentioned – 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 . .
Cited – London Borough of Bromley v Morritt CA 21-Jun-1999
The defendants appealed against orders relating to the construction of a sewage pipe through their garden under powers given under the Act. The defendant had later blocked the pipe and the authority sought to recover the costs of repair. He claimed . .
Cited – Seekings v Clarke 1961
Lord Parker CJ said: ‘It is perfectly clear that anything which substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature is an unlawful obstruction’. . .
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 – Tithe Redemption Commission v Runcorn Urban District Council CA 1954
The court considered the effect of a strip of land being designated as a public right of way. Denning LJ said: ‘The statute . . vest[s] in the local authority the top spit, or perhaps, I should say, the top two spits of the road for a legal estate . .
Cited – Rangeley v Midland Railway Company CA 1868
Where there is a highway, the surface of the land or other property is dedicated to public use.
Cairns LJ described a highway as: ‘a dedication to the public of the occupation of the surface of the land for the purpose of passing and . .
Cited – St Ives Corporation v Wadsworth ChD 1908
A piece of land bordered by a river a bridge and a highway was fenced off by the highway authority. The defendant had used the land as part of his adjoining house and land. The plaintiffs sought clarification that they could remove the fence as they . .
Cited – Seddon v Smith 1877
Adverse possession was claimed over land subject to a private grant of a right of way. The defendant had a paper title to a strip of land along Molyneux Lane. The plaintiff sought damages for trespass, claiming for wrongful abstraction of coal from . .
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 . .
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – St Marylebone Property Co Ltd v Fairweather HL 16-Apr-1962
To defeat a defence of adverse possession, the plaintiff must succeed in an action which itself had been commenced within the twelve year period. A squatter does not succeed to the title that he has disturbed: by sufficiently long adverse possession . .
Cited – Harvey v Truro Rural District Council 1903
Land which had been built over was part of the public highway. The highway authority had as far back as living memory extended used a portion of a strip alongside a highway for the purpose of depositing material for the repair of the roads. A few . .
Cited – Haigh v West CA 1893
The court was asked about rights of pasturage granted over a public highway. The neighbouring land owner, and Lord of the Manor, claimed damages from the tenant for trespass in pasturing his sheep on the road. There was no evidence in whom the soil . .

Cited by:
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .

Lists of cited by and citing cases may be incomplete.

Land, Registered Land

Updated: 10 December 2021; Ref: scu.402576

Patel v Smith (WH) (Eziot): 1987

[1987] CLY 3039
Cited by:
Distinguished – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.187766

London Borough of Southwark v Transport for London: ChD 1 Dec 2015

Appeal from arbitrations vesting certain highways.

Mann J
[2015] EWHC 3448 (Ch)
Bailii
England and Wales
Cited by:
Appeal from – London Borough of Southwark and Another v Transport for London CA 4-Aug-2017
The Land of a roadway was to be transferred to TFL. The parties disputed whether there would be transferred the areas adjacent to the surface, or whether it should be the full depth of the earth and to the skies. . .

Lists of cited by and citing cases may be incomplete.

Transport, Land, Local Government

Updated: 10 December 2021; Ref: scu.556252

Davies v Du Paver: CA 1953

The court accepted that local farmers could identify which sheep belonged to what person on the owner’s land but the owner of the land was not able to do so and, not sharing that common knowledge, did not have knowledge of the user, and court denied the right to infer from so-called ‘common knowledge’, that is common local knowledge, that the servient owner had the knowledge of the relevant user.
A licence to use land cannot be implied from mere inaction of a landowner with knowledge of the use to which his land is being put: ‘Before Mr Davies could establish a claim based on prescription the evidence would have to show that the owner of the servient tenement had knowledge of what was happening, or as an ordinary owner must be taken to have had reasonable opportunity of knowledge, and that, having power to prevent it, he did not intervene.’

Morris LJ
[1953] 1 QB 184
England and Wales
Cited by:
Applied – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Distinguished – Dance v Triplow CA 1992
The parties were neighbours. T got planning permission in 1977 to build a two storey extension. D, the plaintiff, knew of the plan and that it would interrupt the light to his bungalow. Over the years, the plan was implemented in stages, and in . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.187762

Tithe Redemption Commission v Runcorn Urban District Council: CA 1954

The court considered the effect of a strip of land being designated as a public right of way. Denning LJ said: ‘The statute . . vest[s] in the local authority the top spit, or perhaps, I should say, the top two spits of the road for a legal estate in fee simple determinable in the event of it ceasing to be a public highway.’

Denning LJ
[1954] 2 WLR 51, [1954] Ch 383
Local Government Act 1929 29
England and Wales
Citing:
Cited – Rolls v Vestry of St George the Martyr, Southwark CA 14-Jun-1880
The plaintiff owned land over which were two old streets. He obtained an order from the Magistrates stopping up the stopping up and diversion of parts in return for new streets matching the proposed area layout. The defendants, in whom the land had . .

Cited by:
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 . .
Cited – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
Cited – London Borough of Southwark and Another v Transport for London SC 5-Dec-2018
Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance . .

Lists of cited by and citing cases may be incomplete.

Land, Local Government

Updated: 10 December 2021; Ref: scu.320857

Odey and Others v Barber: ChD 29 Nov 2006

The claimants sought a declaration that they had two rights of way over a neighbour’s land. One was claimed by continuous use for twenty years, and the second was said to have been implied under the 1925 Act. No express grant was suggested.

Silber J
[2006] EWHC 3109 (Ch), [2007] 3 All ER 543, [2008] Ch 175, [2008] 2 WLR 618
Bailii
Law of Property Act 1925 62
England and Wales
Citing:
Cited – Wheeldon v Burrows CA 17-Jun-1879
Quasi-Easements granted on sale of part of Estate
S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the . .
Cited – Tehidy Minerals Ltd v Norman CA 1971
The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – Bright v Walker 1834
Where a way had been used adversely and under a claim of right, for more than twenty years, over land in the possession of a lessee who held under a lease for lives granted by the Bishop of Worcester. Held that under the act 2 and 3 Will. 4, c. 71, . .
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 – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – Burrows v Lang 1901
Discussing the book de legibus et consuetudinibus Angliae by Bracton, and its discussion of the meaning of ‘precario’ saying it was the same as de gratia, of grace, and in the context of a watercourse. The court asked ‘What is precarious?’ and . .
Cited – Dalton, Weaton v Maple and Co. CA 1983
The plaintiff claimed to have acquired a right of light against the defendants.
Held: Lord Justice Lindley said: ‘The whole theory of prescription at common law is against presuming any grant, or covenant not to interrupt, by or with anyone . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.341780

Hurst and Another v Hampshire County Council: CA 19 Jun 1997

A Local Authority is liable for any damage to adjacent property caused by the roots of a tree growing on the verge of a public highway.
Held: Pre-adoption trees vest in the highway authority for all purposes.

Stuart-Smith, Morritt L, Sir John Balcombe
Times 26-Jun-1997, [1997] EWCA Civ 1901, (1997) 96 LGR 27
Bailii
Highways Act 1980 96(6), Road Improvements Act 1925 1(1) 1(2) 1(5)
England and Wales
Citing:
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 – 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 – Goodtitle, Ex Dimiss Chester v Alker and Elmes 28-Jan-1757
The owner of land over which ran a public highway did not lose any of his rights of ownership whether of the surface or subsoil. Any trees growing in the highway were his trees . .
Cited – Stovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
Cited – Turner v Ringwood Highway Board 1870
The highway extended to a width of 50 feet. After adoption trees grew in that part not used as the actual road.
Held: Once a highway exists the public has a right to use the whole of the width of the highway and not just that part of it . .
Cited – Coverdale v Charlton CA 2-Dec-1878
By an award under an Inclosure Act passed in 1766 a private road E was set out. In about 1818 road E became a public highway. A local board was formed in 1863 and in 1876 the board let the pasturage upon E to the Plaintiff. He thereupon commenced to . .
Cited – Geddis v Proprietors of Bann Reservoir HL 18-Feb-1878
The owner of land injured by operations authorised by statute ‘suffers a private loss for the public benefit’, and in the absence of clear statutory authority is unable to claim: ‘It is now thoroughly well established that no action will lie for . .
Cited – Stillwell v New Windsor Corporation 1932
The Plaintiff owned a house bounded on the west and north by public highways. There were a number of post-adoption trees of which the Plaintiff claimed the property. Having refused to comply with the Defendant’s notice to remove the trees on the . .
Cited – Russell v London Borough of Barnet 1984
The Land Registry general boundaries rule operates so that although the land registry plan is placed inside a road, the ad medium filae presumption still operates as regards ownership of the soil. . .

Cited by:
Cited – Bybrook Barn Garden Centre Ltd and Others v Kent County Council CA 8-Jan-2001
A culvert had been constructed taking a stream underneath the road. At the time when it came into the ownership of the local authority, it was adequate for this purpose. Later developments increased the flow, and the culvert came to become an . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Local Government, Land

Updated: 10 December 2021; Ref: scu.142297

London Borough of Southwark and Another v Transport for London: SC 5 Dec 2018

Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance and repair of the road , or the full extent of the land; all the airspace above and the subsoil below the surface of the road.
Held: The appeal was allowed. The land transferred was not the narrower definition.
‘Highway’ has no single meaning, but by default the wider meaning was to be used.
article 2(1)(a) transfers to TfL ownership of all that part of the vertical plane relating to a GLA road vested in the relevant council on the operative date, but only to the extent that ownership was then vested in the council in its capacity as former highway authority. That is, in my view, the true meaning of the phrase ‘the highway, in so far as it is vested in the former highway authority’. It follows that:
i) rights held by the Councils in the vertical plane of a highway as adjoining owner, for purposes other than highway purposes, do not pass under article 2(1)(a). This is because they are not held by the Council in its capacity as highway authority.
ii) rights originally acquired for purposes other than highway purposes, or appropriated to those other purposes by the operative date, do not pass under article 2(1)(a). This is so whether or not some non-highway structure has by then been constructed. If acquisition or appropriation for non-highway purposes has occurred by the operative date, it matters not that the relevant purpose has yet to be fulfilled, so that the relevant part of the vertical plane remains undeveloped.
iii) rights originally acquired for highway purposes in the vertical plane, for example by conveyance on compulsory acquisition for highway purposes, do pass under article 2(1)(a), even if they extend beyond the zone of ordinary use, provided that they have not, by the operative date, been appropriated to some non-highway use outside the zone of ordinary use.
iv) All these consequences, and in particular the first, flow from the true construction of article 2, rather than merely by way of TfL’s concession as recorded by Mann J.

Lady Hale, President, Lord Reed, Deputy President, Lord Carnwath, Lord Lloyd-Jones, Lord Briggs
[2018] UKSC 63, [2019] 1 P and CR 14, [2019] RVR 49, [2018] 3 WLR 2059, [2019] PTSR 1, [2019] 2 All ER 271, UKSC 2017/0160
Bailii, Bailii Summary, SC, SC Summary, SC Summary Cvideo, SC 2018 1024 am Video, SC 2018 10 24 PM, SC 2018 10 25 am Video
GLA Roads and Side Roads (Transfer of Property etc) Order 2000
England and Wales
Citing:
Appeal from – London Borough of Southwark and Another v Transport for London CA 4-Aug-2017
The Land of a roadway was to be transferred to TFL. The parties disputed whether there would be transferred the areas adjacent to the surface, or whether it should be the full depth of the earth and to the skies. . .
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 – Tunbridge Wells (Mayor Of) v Baird HL 4-May-1896
The Public Health Act 1875, which by s. 149 vests certain streets in the urban authority, does not vest the subsoil.
Therefore where a local Act authorized the urban authority to erect and maintain ‘in any street or public place, or on land . .
Cited – Coverdale v Charlton CA 2-Dec-1878
By an award under an Inclosure Act passed in 1766 a private road E was set out. In about 1818 road E became a public highway. A local board was formed in 1863 and in 1876 the board let the pasturage upon E to the Plaintiff. He thereupon commenced to . .
Cited – Rolls v Vestry of St George the Martyr, Southwark CA 14-Jun-1880
The plaintiff owned land over which were two old streets. He obtained an order from the Magistrates stopping up the stopping up and diversion of parts in return for new streets matching the proposed area layout. The defendants, in whom the land had . .
Cited – Tithe Redemption Commission v Runcorn Urban District Council CA 1954
The court considered the effect of a strip of land being designated as a public right of way. Denning LJ said: ‘The statute . . vest[s] in the local authority the top spit, or perhaps, I should say, the top two spits of the road for a legal estate . .
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 . .
Cited – Farrell v Alexander HL 24-Jun-1976
The House considered the construction of a consolidation Act.
Held: It is ordinarily both unnecessary and undesirable to construe a consolidation Act by reference to statutory antecedents, but it is permissible to do so in a case where the . .
Cited – Goodes v East Sussex County Council HL 16-Jun-2000
The claimant was driving along a road. He skidded on ice, crashed and was severely injured. He claimed damages saying that the Highway authority had failed to ‘maintain’ the road.
Held: The statutory duty on a highway authority to keep a road . .
Cited – Finchley Electric Light Company v Finchley Urban Council CA 11-Feb-1903
Under s. 149 of the Public Health Act, 1875, which provides for the vesting in the urban authority of the streets within their district, the question how much above and below the surface of the street vests in the urban authority is determined by . .
Cited – Secretary of State for the Environment Transport and the Regions v Baylis (Gloucester) Ltd; Bennett Construction (UK) Ltd v Baylis (Gloucester) Ltd ChD 16-May-2000
Land once conveyed for the purposes of becoming a highway, became dedicated for that purpose even though no steps were ever taken for its use for that purpose. The registration of a company as proprietor by the Land Registry did not displace the . .

Lists of cited by and citing cases may be incomplete.

Land, Local Government, Transport

Updated: 10 December 2021; Ref: scu.630951

Bramwell and Others v Robinson: ChD 21 Oct 2016

Interference with right of way

Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the defendant.

Behrens HHJ
[2016] EWHC B26 (Ch)
Bailii
England and Wales
Citing:
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 – Finch v Great Western Railway Company 1879
The extent of the right of way acquired by prescription must be measured by the extent of user during the period of time relied upon. . .
Cited – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
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 – Oliver v Symons CA 15-Mar-2012
The parties disputed the extent of a right of way, the claimant appealing against the rejection of his claim for ‘swing space’ alongside the right of way.
Held: The appeal failed. Elias LJ said that the ‘argument for swing space fails. That is . .
Cited – B and Q Plc v Liverpool and Lancashire Properties Ltd ChD 26-Jul-2000
The dominant owner wished to deal with delivery vehicles in a manner where they were left parked awaiting emptying. The servient owner (a lessee) wanted to construct buildings over a large part of the land. The servient owner objected.
Held: . .
Cited – Zieleniewski v Scheyd and Another CA 6-Mar-2012
The parties disputed the existence of a right of way. Briggs J set out the legal principles involved in a claim of interference with a right of way: ‘1) Not every interference with a right of way is actionable. The owner of the right may only object . .
Cited – Pettey v Parsons CA 1914
Mr Parsons (the defendant) owned a parcel of land on the junction of two roads in Bournemouth, called Charminster Road and Alma Road. In the middle of the parcel there was a footpath which ran from Charminster Road westwards to a private road which . .
Cited – Saint v Jenner CA 1973
The dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. The servient owner installed speed bumps. The dominant onwer alleged interference with the right of way.
Held: This . .
Cited – Christie v Davey 1893
A music teacher gave lessons at home and from time to time held noisy parties. He complained of nuisance when his neighbour retaliated by blowing whistles, banging trays and trying to disturb the music.
Held: The defendant’s actions were . .
Cited – Flynn v Harte 1913
Dodd J said: ‘Each case depends upon its own facts. Whether a gate is or is not an obstruction of the right is a matter of fact. He who acts in a neighbourly way may be sure he is within the law. He who acts in an unneighbourly manner is breaking . .
Cited – Geoghegan v Henry 11-Jan-1922
. .
Cited – Hollywood Silver Fox Farm v Emmett 1936
The plaintiffs farmed silver foxes for their fur. During the breeding season, they were nervous, but the neighbour defendant farmer deliberately encouraged his son to fire guns near the pens in order to disturb the breeding and cause economic loss. . .
Cited – Owers v Bailey ChD 2006
Nicholas Strauss QC dealt with the interference on a right of way by the erection of a gate, summarising the law. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.570338

London Tara Hotel Ltd v Kensington Close Hotel Ltd: ChD 1 Nov 2010

The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act or by lost modern grant.
Held: The earlier cases on prescription must now be read subject to the three more recent statements from the House of Lords and Supreme Court. There had been nothing in the use of the land to defeat a claim for use by force or in secret. Though the original use had been by permission, there was nothing to suggest that the defendant’s continued use was by virtue of it. The right had been acquired by a lost modern grant on the basis of long usage.

Roth J
[2010] EWHC 2749 (Ch)
Bailii
Prescription Act 1832 2
England and Wales
Citing:
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – 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: . .
Cited – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – Gaved v Martyn CCP 3-Jun-1865
The parties disputed whether a right had been acquired to use a watercourse. The plaintiff’s predecessor (Hooper) had been given permission from the defendant’s predecessor (Geach) to cut a ‘leat’ or stream to carry water from a natural brook on . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Cited – Union Lighterage Company v London Graving Dock Company CA 1902
Stirling LJ said: ‘in my opinion an easement of necessity means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property.’
Romer LJ said that enjoyment of a . .
Cited – Central Midlands Estates Ltd v Leicester Dyers Ltd ChD 21-Jan-2003
The claimant sought a declaration that the caution registered by the defendant should be vacated. The defendant asserted acquisition by prescription either of an easement or of the land itself. They had parked vehicles on the land.
Held: . .
Cited – Jones v Price and Morgan CA 16-Jan-1992
At trial, the use of a track across a neighbouring farm for the driving of sheep was found to be originally by oral permission, and that although the permission was not expressly renewed ‘there was a tacit understanding that did not need to be . .
Cited – St Edmunsbury v Clark (No 2) CA 1975
The conveyance created ‘a right of way’. The court considered the manner of construction of a conveyance, saying: ‘We feel no doubt that the proper approach is that upon which the court construes all documents; that is to say, one must construe the . .
Cited – Bridle v Ruby CA 1989
The plaintiff was able to establish a right of way by prescription despite his personal belief that he had such a right by grant.
Ralph Gibson LJ said: ‘For mistake as to the origin of the right asserted by the user to be relevant, it seems to . .

Cited by:
Main Judgment – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 14-Jan-2011
. .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.425618

Polo Woods Foundation v Shelton-Agar and Another: ChD 17 Jun 2009

The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but the case was remitted for retrial.
Four conditions must be complied with for there to be a valid easement or profit:
a. There must be a dominant and servient tenemen
b. The easement or profit must accommodate the dominant tenement.
c. The dominant and servient tenements must not both be owned or occupied by the same person.
d. The easement or profit must be capable of forming the subject matter of a grant.
There is no test of real or appreciable benefit to the dominant tenement which has to be passed before a right claimed can be said to ‘accommodate’ it or to establish the necessary connection or nexus between the right and the dominant tenement.
The proposed right would effectively prevent use of the land for up to eight months of the year during the daytime by its owners, and they would unable to gate the land.
The judge had not considered fully the facts before her, and the appeal court could not substitute its own judgment in that respect. It was necessary to establish the maximum number of ponies which might be allowed to graze, and further amendment might yet be required to the pleadings.

Warren J
[2009] EWHC 1361 (Ch), [2009] 2 P and CR DG20, [2010] 1 All ER 539, [2010] 1 P and CR 12
Bailii
England and Wales
Citing:
Cited – Lord Chesterfield v Harris CA 27-Jun-1908
The court considered the acquisition of a profit a prendre of fishing, by prescription over a stretch of the River Wye.
Held: Lord Chesterfield’a appeal succeeded. To be valid, a profit appurtenant must, as I have said, be limited and that . .
Cited – In re Ellenborough Park CA 15-Nov-1955
Qualifying Characteristics ofr Easement
Parties claimed a public right to wander through the grounds of the park.
Held: No such right could have been granted or was properly claimed. Lord Evershed MR said: ‘There is no doubt, in our judgment, but that Attorney-General v. Antrobus . .
Cited – Hill v Tupper 1-May-1863
The canal company had by deed granted the sole right to use the canal for pleasure boats to the plaintiff. The defendant disturbed that right by using the canal for the same purpose.
Held: The claim failed. The right under the contract was not . .
Cited – Mulvaney v Jackson, Gough, Holmes and Holmes CA 24-Jul-2002
Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as garden by the cottagers. The land owner removed a flower bed.
Held: . .
Cited – Bettison and Another v Penton and Another CA 22-Jan-1998
A common right of grazing which was quantified but not related to the ability of the land to sustain it was capable of existing in gross, and was therefore severable entirely from the land to which it related. The severance was no necessary . .
Cited – Bettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .
Cited – White v Taylor (No 2) ChD 1969
The alienation of grazing rights for a fixed number of beasts cannot prejudice the residual interest of the owner of the servient common. Whoever the grazing right belongs to, the number of beasts that can be grazed upon the common pursuant to the . .
Cited – Tehidy Minerals Ltd v Norman CA 1971
The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the . .
Cited – Batchelor v Marlow and Another CA 12-Jul-2001
The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that . .
Cited – Clos Farming Estates v Easton and Another 9-Dec-2002
(New South Wales Court of Appeal) A question arose whether a right to enter servient land, to carry out works of viticulture and to harvest the grapes and sell them was a right capable of existing as an easement. The judge at first instance held . .
Cited – Dyce v Lady James Hay HL 1852
A claim was made for a prescriptive right for all the Queen’s subjects ‘to go at all times upon the . . appellant’s property . . for the purpose of recreation’.
Held: Leonards LC said that the right claimed was one that ‘cannot be maintained’ . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
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 – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .

Cited by:
Cited – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.347021

London Borough of Southwark and Another v Transport for London: CA 4 Aug 2017

The Land of a roadway was to be transferred to TFL. The parties disputed whether there would be transferred the areas adjacent to the surface, or whether it should be the full depth of the earth and to the skies.

McFarlane, McCombe, David Richards LJJ
[2017] EWCA Civ 1220, [2017] WLR(D) 546, [2018] PTSR 333
Bailii, WLRD, WLRD
England and Wales
Citing:
Appeal from – London Borough of Southwark v Transport for London ChD 1-Dec-2015
Appeal from arbitrations vesting certain highways. . .

Cited by:
Appeal from – London Borough of Southwark and Another v Transport for London SC 5-Dec-2018
Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.591920

Beckett (Alfred F) v Lyons: 1967

A claim was made that the inhabitants of the County Palatine of Durham had the right to take coal from the seashore.
Held: Dedication of a public right must be to the public at large or a sufficiently large section of the public at large and not just to a fluctuating body of persons in a particular locality. The right claimed could not be claimed by the public at large, as public rights in the foreshore are well defined and do not include taking minerals.

[1967] CLY 3549, [1967] Ch 449
Cited by:
Distinguished – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – 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: . .
Cited – Brand and Another v Philip Lund (Consultants) Ltd ChD 18-Jul-1989
The plaintiffs objected to the transport of wood from the defendant’s neighbouring land by lorry along an accessway to the plaintiff’s land. They said the defendants had no right of vehicular access. The defendants asserted a public vehicular . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.187765

Sturges v Bridgman: CA 1879

The character of the neighbourhood in which the plaintiff lives should, for the law of nuisance, include established features: ‘whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private and actionable wrong.’
If a man ‘temporarily licenses’ his neighbour’s enjoyment, that enjoyment is precario in terms of the civil law phrase ‘nec vi nec clam nec precario’. It is not a defence that the plaintiff came to the nuisance.

Thesiger LJ
[1879] 11 Ch D 852
England and Wales
Cited by:
Cited – Dennis and Dennis v Ministry of Defence QBD 16-Apr-2003
The applicants owned a substantial property near an airbase. They complained that changes in the patterns of flying by the respondents were a nuisance and sought damages. Walcot Hall was subjected to very high noise levels from military aircraft. . .
Applied – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – 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: . .
Cited – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
Cited – Thornhill and Others v Nationwide Metal Recycling Ltd and Another CA 29-Jul-2011
The appellants challenged a decision that the defendants had ceased to be committing an actionable nuisance after erecting a sound barrier between their metal scrap yard and the claimants’ properties.
Held: The judge had correcly applied the . .
Cited – Merthyr Tydfil Car Auction Ltd v Thomas and Another CA 11-Jul-2013
The company appealed against an award of 9,000 pounds for nuisance in the form of excessive noise and fumes.
Held: The appeal failed: ‘the grant of planning permission cannot authorise the commission of a nuisance but it may, following its . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Cited – Miller v Jackson CA 6-Apr-1977
The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Land

Leading Case

Updated: 10 December 2021; Ref: scu.182120

Gardner v Hodgson’s Kingston Brewery Co: HL 1903

The party claiming a right of way through the yard of a neighbouring inn, and her predecessors in title, had for well over 40 years used the inn yard (the only means of access with carts and horses to her premises) and had paid the annual sum of 15 shillings to the innkeeper. The most likely explanation of this payment was as an acknowledgement of the innkeeper’s title, amounting to ‘a succession of yearly licences not, perhaps, expressed every year, but implied and assumed and paid for’. To make a charge for entry to land is one way of making clear that entry is not as of right.
Held: The words ‘as of right’ in the 1832 Act were intended to have the same meaning as the older expression ‘nec vi, nec clam, nec precario’.
Earl of Halsbury LC said: ‘I cannot help thinking there has been a certain play upon words in commenting upon them. In a certain sense a man has a right to enjoy what he has paid for, and, therefore, if the appellant here at any time during the year when she had paid for the right to use this way had been hindered, she would have had a right to complain that what I will call her contract had been broken, and that during the year she had a right to use the way. I do not think that this would have established a right in the proper sense, because, being but a parol licence, it might be withdrawn, and her action would be for damages, but she would have no right to the way. And in no sense could the right be the right contemplated by the Act. That right means a right to exercise the right claimed against the will of the person over whose property it is sought to be exercised. It does not and cannot mean an user enjoyed from time to time at the will and pleasure of the owner of the property over which the user is sought’. ‘The common law doctrine is that all prescription presupposes a grant.’ Otherwise the fictional technique of presuming or inferring a lost modern grant would not meet the case.
Lord Lindley said: ‘The common law doctrine is that all prescription presupposes a grant. But if the grant is proved and its terms are known, prescription has no place’ and ‘the words ‘as of right’ were intended to have the same meaning as the older expression nec vi, nec clam, nec precario’

Lord Davey and Lord Lindley, Earl of Halsbury LC
[1903] AC 229
Prescription Act 1832 5
England and Wales
Cited by:
Considerered – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – 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: . .
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 . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.187764

Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson: ChD 22 Jan 2004

Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. The claimant was entitled to register part only of the area of land original included. An application was not to be defeated by part of the land being inaccessible where for example it was overgrown, or under a pond.

The Hon Mr Justice Lightman
[2004] EWHC 12 (Ch), Times 30-Jan-2004, [2004] 2 WLR 1291, [2004] Ch 253
Bailii
Commons Registration Act 1965, Commons Registration (New Land) Regulations 1969
England and Wales
Citing:
Cited – Fitch v Rawling 1795
A common was claimed at Steeple Bumpstead in Essex for ‘all kinds of lawful games, sports and pastimes . . at all seasonable times of the year.’ including cricket.
Held: Rights of common over land can include the right of local inhabitants to . .
Cited – Abbott v Weekly 1665
A custom that ‘the inhabitants of the vill, time out of memory, and had used to dance there at all times of the year at their free will, for their recreation’ was held to be a good custom, and the land was established as a common. . .
Cited – Abercromby v Fermoy Town Commissioners 1900
A right of common over land can take the form of a right for recreation to promenade (or wander) over land and every part of it. . .
Cited – Hampshire County Council v Milburn HL 1991
The 1965 Act ‘was passed to give effect to the recommendations of the Royal Commission so far as registration was concerned. The Act of 1965 did not confer any general public right of access over common land and did not set up the machinery for the . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – New Windsor Corporation v Mellor CA 1975
The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval . .
Cited – Wyld v Silver 1963
A purchaser found that he was restrained from building on his land which interfered with a legal but ‘ancient and outmoded’ right to hold a fair on the land on Fridays in Whitsun Week in every year.
Held: At common law the principle is clear . .
Explained – Regina v Suffolk County Council Ex Parte Steed and Another CA 2-Aug-1996
Customary rights over land were not defeated by failure to register as common. ‘As of right’ meant that the right must be exercised in the belief that it is a right enjoyed by the inhabitants of the village to the exclusion of all other people. ‘it . .
Cited – In re West Anstey Common 1985
Though an enquiry as to whether land is a green can only be initiated by an application for the addition of the claimed green to the register by some individual, the enquiry should not be seen as civil litigation between the applicant and any . .
Cited – Regina v Suffolk County Council Ex Parte Steed and Steed Admn 1995
Judicial review was sought of the Council’s decision to refuse to register a park as a Town or Village Green.
Held: Carnwath J looked at the procedure to be followed by a council receiving an application for registration of commons right: ‘it . .
Cited – Secretary of State for Education and Science v Tameside Metropolitan Borough Council HL 21-Oct-1976
An authority investigating an application for registration of rights of common over land has an implied duty to ‘take reasonable steps to acquaint (itself) with the relevant information.’ A mere factual mistake has become a ground of judicial . .
Cited – Bettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .
Cited – Cheltenham Builders Ltd , Regina (on the Application of) v South Gloucestershire District Council Admn 10-Nov-2003
A claim was made for the review of a decision of the Council to amend the Register of Town and Village Greens (TVG).
Held: The registration of the TVG was manifestly flawed and could not stand whether under section 14 or by way of judicial . .
Cited – 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: . .
Cited – Hunter Douglas Australia Pty v Perma Blinds 1970
(Australia) The court considered the meaning of the word ‘deemed’ in a statute. Windeyer J said: ‘the verb ‘deem’, or derivatives of it, can be used in statutory definitions to extend the denotation of the defined term to things it would not in . .
Cited – Ministry of Defence v Wiltshire County Council 3-May-1995
The court considered that the time period of twenty years necessary to establish a right of common under the Act was the period ending with the date of the application.
Held: The court rectified the register under section 14 so as to remove . .
Cited – Regina v Norfolk County Council ex parte Perry Admn 19-Dec-1996
The period of twenty years required to establish a common under the Act was the period up to the date of the application. . .
Cited – Regina v Doncaster Metropolitan Borough Council ex parte Braim 1986
The court considered whether the lease of part of Doncaster Common (not registered as such) fell within section 123(2A) of the 1972 Act.
Held: For over a century the public had, as of right, used Doncaster Common for what could be conveniently . .
Cited – In re Turnworth Down Dorset 1978
The only effect of non-registration of rights of common was to deprive the inhabitants of the benefit of the conclusive presumption furnished by section 10 of the Act and to require them to prove the existence of the rights in question. The land was . .
Cited – South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV HL 1987
There can be little basis for the grant of relief to a landowner providing protection from an action in nuisance if the landowner will not himself remedy the public nuisance. The House considered whether the circumstances gave the court power to . .
Cited – Tehidy Minerals Ltd v Norman CA 1971
The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the . .
Cited – Fairey v Southampton City Council CA 1956
The landowner denied that a public right of way had been created over his land. Under the 1932 Act, 20 years user expiring at any time, even before the Act came into force, was capable of giving rise to a deemed dedication of a public highway under . .
Cited – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – Yew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
Cited – Carson v Carson 1964
The court echoed the description of the rule against retrospectivity in an Act so as to remove existing right, quoting Maxwell ‘Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain . .
Cited – British Telecommunications Plc and Bloomsbury Land Investments v Gloucester City Council Admn 26-Nov-2001
The land site to be developed was of archaeological interest and the relevance of a mitigation strategy was considered.
Held: It is for the planning authority to decide whether there are likely to be significant effects on the environment . .
Cited – Bernard Wheatcroft Ltd v Secretary of State for the Environment CA 1982
The developer originally sought permission for 450 homes. That was refused. Before the appeal, it proposed an alternative with 250 homes to be adopted only if the size of the development were considered to be the critical factor. The inspector . .
Cited – Regina (Alfred McAlpine Homes Ltd) v Staffordshire County Council 17-Jan-2002
The court refused to set aside the council’s decision to register as a common a lesser area then applied for. ‘ Does the council have power to register a smaller area than applied for? It is perfectly true that there is no express power in either . .
Cited – Turner v Walsh PC 1881
(From Supreme Court of New South Wales) The appellant owned land in New South Wales, acquired from the Crown in 1879, over which there was a track. The respondent was sued for trespass when he went upon the track and removed fences running across it . .
Cited – Dyfed County Council v Secretary of State for Wales CA 30-Nov-1989
The Council had, under section 53 of the 1981, Act modified its definitive map to add five footpaths including that under appeal. An inspector had refused to confirm three of the footpaths, including the one in dispute, and in accordance with his . .
Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .

Cited by:
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 . .
Appeal from – Oxfordshire County Council v Oxford City Council and Another CA 24-Feb-2004
Application was made to register the ‘trap grounds’ as a village green.
Held: Carnwath LJ: ‘The 1965 Act created no new legal status, and no new rights or liabilities other than those resulting from the proper interpretation of section 10. . .
At first instance – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.192081

Keech and Another v Coleridge (Restrictive Covenants – Discharge or Modification): UTLC 1 Dec 2021

Discharge or modification – four covenants restricting use of land in cul-de-sac of single storey dwellings – planning consent for new double garage and replacement entrance drive on open garden land – whether part or all of three covenants obsolete – whether fourth covenant secures practical benefits of substantial value or advantage – s.84(1)(a), (aa) and (c), Law of Property Act 1925 – application refused

Diane Martin Td Mrics Faav
[2021] UKUT 282 (LC)
Bailii
England and Wales

Land

Updated: 10 December 2021; Ref: scu.670298

Rolls v Vestry of St George the Martyr, Southwark: CA 14 Jun 1880

The plaintiff owned land over which were two old streets. He obtained an order from the Magistrates stopping up the stopping up and diversion of parts in return for new streets matching the proposed area layout. The defendants, in whom the land had been vested under the 1855 Act served notices to prevent this.
Held: The vesting of the land with the defendants applied only for so long as the land was used as a roadway, and the plaintiff could go ahead.
James LJ explaining the difficulties arising out of a provision in the Act: ‘It appears to me that the legitimate construction of the enactment that streets being highways shall vest is that streets if and so long as they are highways shall be vested. There are no words of inheritance, there are no words of perpetuity in the Act, there is nothing to say whether the streets are to vest in fee simple or for any limited estate, and it appears to me that they are given to and vested in the public body for the purposes of the Act and during the time for which those purposes require them to be held, and no longer. Words of divesting or defeasance are not required, because to my mind the interest of the vestry is exactly like a limited estate. If an estate is given to a woman during her widowhood words of defeasance are not required to divest it on her marriage, because the estate has ceased when the original limit is arrived at. So in this case it appears to me that when the thing has ceased to be a highway, when it has ceased to be a street, then it ceases to be vested, because the period for which it was to be vested in the board has come to an end. ‘

James LJ
(1880) 14 Ch D 785, (1880) 49 LJ Ch 691, (1880) 43 LT 140, (1880) 44 JP 680, (1880) 28 WR 867
Commonlii
Metropolis Management Act 1855 96
England and Wales
Cited by:
Cited – Tithe Redemption Commission v Runcorn Urban District Council CA 1954
The court considered the effect of a strip of land being designated as a public right of way. Denning LJ said: ‘The statute . . vest[s] in the local authority the top spit, or perhaps, I should say, the top two spits of the road for a legal estate . .
Cited – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
Cited – London Borough of Southwark and Another v Transport for London SC 5-Dec-2018
Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.443846

Mills and Another v Silver and others: CA 6 Jul 1990

A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a prescriptive right, and the use had been by consent.
Held: The use was established by the doctrine of lost modern grant. Tolerance of the use was not sufficient to defeat the acquisition of the right. The earlier use had been by right, and a prescriptive right was acquired.
Dillon LJ said: ‘It would be easy to say . . that there is an established principle of law that no prescriptive right can be acquired if the user by the dominant owner of the servient tenement in the particular manner for the appropriate number of years has been tolerated without objection by the servient owner. But there cannot be any such principle of law because it is, with rights of way, fundamentally inconsistent with the whole notion of acquisition of rights by prescription. It is difficult to see how, if there is such a principle, there could ever be a prescriptive right of way.’ and
‘It is to be noted that a prescriptive right arises where there has been user as of right in which the servient owner has, with the requisite degree of knowledge, which is not in issue in the present case, acquiesced. Therefore mere acquiescence in or tolerance of the user by the servient owner cannot prevent the user being as of right for purposes of prescription. Equally, where Lord Lindley says that the enjoyment must be inconsistent with any other reasonable inference than that it has been as of right in the sense he has explained, he cannot be regarding user with the acquiescence or tolerance of the servient owner as an alternative reasonable inference which would preclude enjoyment as of right from being established. A priori, user in which the servient owner has acquiesced or which he has tolerated is not inconsistent with the concept of user as of right. To put it another way, user is not ‘precario’ for the purposes of prescription just because until 20 years have run, the servient owner could stop it at any time by issuing his writ and asking for an injunction.’
Parker LJ said: ‘The true approach is to determine the character of the acts of user or enjoyment relied on. If they are sufficient to amount to an assertion of a continuous right, continue for the requisite period, are actually or presumptively known to the owner of the servient tenement and such owner does nothing that is sufficient . . I add only this, that any statement that the enjoyment must be against the will of the servient owner cannot mean more than ‘without objection by the servient owner’. If it did, a claimant would have to prove that the right was contested and thereby defeat his own claim.’

Dillon LJ, Parker LJ, Stocker LJ
[1991] Ch 271, [1991] 2 WLR 324, [1991] 1 All ER 449, [1990] EWCA Civ 12
Bailii
England and Wales
Citing:
Applied – Sturges v Bridgman CA 1879
The character of the neighbourhood in which the plaintiff lives should, for the law of nuisance, include established features: ‘whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the . .
Applied – Davies v Du Paver CA 1953
The court accepted that local farmers could identify which sheep belonged to what person on the owner’s land but the owner of the land was not able to do so and, not sharing that common knowledge, did not have knowledge of the user, and court denied . .
Considerered – Gardner v Hodgson’s Kingston Brewery Co HL 1903
The party claiming a right of way through the yard of a neighbouring inn, and her predecessors in title, had for well over 40 years used the inn yard (the only means of access with carts and horses to her premises) and had paid the annual sum of 15 . .
Distinguished – Beckett (Alfred F) v Lyons 1967
A claim was made that the inhabitants of the County Palatine of Durham had the right to take coal from the seashore.
Held: Dedication of a public right must be to the public at large or a sufficiently large section of the public at large and . .
Distinguished – Patel v Smith (WH) (Eziot) 1987
. .

Cited by:
Cited – 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: . .
Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Cited – Odey and Others v Barber ChD 29-Nov-2006
The claimants sought a declaration that they had two rights of way over a neighbour’s land. One was claimed by continuous use for twenty years, and the second was said to have been implied under the 1925 Act. No express grant was suggested. . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Cited – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .
Cited – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Cited – Bowen and Others v Isle of Wight Council ChD 3-Dec-2021
What makes a road a Road?
The Court was asked whether a Road was a ‘road’ for the purposes of the 1984 Act’
Held: It has often been said that the public access mentioned in the definition of ‘road’ must be both actual access and legal or lawful access. However, simple . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 10 December 2021; Ref: scu.187763

Coverdale v Charlton: CA 2 Dec 1878

By an award under an Inclosure Act passed in 1766 a private road E was set out. In about 1818 road E became a public highway. A local board was formed in 1863 and in 1876 the board let the pasturage upon E to the Plaintiff. He thereupon commenced to depasture the herbage with his cattle. The Defendant interfered with the Plaintiff’s enjoyment of the depasturage. By section 149 of the 1875 Act, the street vested in and was under the control of the local board.
Held: The appeal failed. By virtue of S.149 the property in the soil of E, being a ‘street’ so far vested in the local board that they could demise the right of pasturage thereon to the Plaintiff, who was entitled to maintain the action.
Brett LJ considered the language of S.149 and said: ‘We can give no other meaning to the words ‘vest in’, except to say that it gives the property. It has been suggested that this meaning is so wide that it would give to the local board cellars which may be under the street, or houses that may be built over the street; or indeed, mines, however deep lying under the street. But when we have decided that the words ‘vest in,’ mean to give a property in, a further question would be in what does it give the property? That must depend upon the subject to which those words relate, and that is not land, but street; the section does not say that the land ‘shall vest in,’ but that ‘the street shall vest in.’ I think that the case of Brumfitt v. Roberts is a guide in construing the section. The words of the private Act in that case were, that the fee simple of the pew should be vested in the subscribers or proprietors; the Court held that those words did not vest the land over which the pew was. So here, the words of this section vest the property in the street; and the street does not include the houses by the side of the street; it includes the space between the houses which is used as the footway and the roadway. ‘Street’ means more than the surface, it means the whole surface and so much of the depth as is or can be used, not unfairly, for the ordinary purposes of a street. It comprises a depth which enables the urban authority to do that which is done in every street, namely, to raise the street and to lay down sewers; for, at the present day, there can be no street in a town without sewers, and also for the purpose of laying down gas and water- pipes. ‘Street,’ therefore, in my opinion, includes the surface and so much of the depth as may be not unfairly used, as streets are used. It does not include such a depth as would carry with it the right to mines, neither would ‘street’ include any buildings which happen to be built over the land, because that is not a part of the street within the meaning of such an Act as this. If the enactment gives the local board that property in so much of the land, it gives them the absolute property in everything growing on the surface of the land. The legislature have, because the right of owners to the soil in a ‘street’ is of so little value, intentionally taken away that right and have given it to the extent I have mentioned to the local board.’
Cotton LJ said: ‘Therefore, on the true construction of this Act of Parliament, the meaning to be given to the words ‘vest in’ must be ‘passed to and vested in’ the local board; it is sufficient in the present case to say that the street and the surface vested in the local board some property in the soil for the purpose for which it was to be used, and in my opinion I must hold that the ‘street’ is a material thing, and that under this clause it vests in the local board.’
Bramwell LJ construed s. 149: ‘And on account of the reasonableness of such an interpretation I am disposed to hold that this ‘street’ vests without any property in the freehold of the soil. The word ‘vest’ may have two meanings; it may mean that a man acquires the property usque ad coelum and to the centre of the earth, but I do not think that to be the meaning here. One construction of the word ‘vest’ here is that it gives the property in the soil, the freehold, the surface, and all above and below it; but that would be such a monstrous thing to say to be necessary for the proper control of the streets by the local board, that I cannot suppose it to mean such a thing. Suppose the soil of the freehold passes, and consequently it carries the right to the land to an indefinite extent upwards, and to the centre of the earth below the surface: I cannot make up my mind to say that is the meaning of the word ‘vest’ in S.149.’ . . .
And ‘But the inconvenience and injustice of holding that the word ‘vest’ would have that effect prevents my putting that construction upon it. What then is the meaning of the word ‘vest’ in this section? The legislature might have used the expression ‘transferred’ or ‘conveyed,’ but they have used the word ‘vest.’ The meaning I should like to put upon it is, that the street vests in the local board qua street; not that any soil or any right to the soil or surface vests, but that it vests qua street. I find some difficulty in giving it a meaning, and I do not know how far it adds to the words, ‘shall be under the control of.’ The meaning I put upon the word ‘vest’ is, the space and the street itself, so far as it is ordinarily used in the way that streets are used, shall vest in the local board. I will refer to a few instances in support of this construction. The streets vest; the pavement, the stones, and other materials vest; all buildings vest which would seem to mean railways, and building implements which are chattels, and other things ‘vest’ in the local authority. This Act also provides that the urban authority shall cause all streets to be levelled, paved, metalled, flagged, channelled, altered and repaired as occasion may require; they may cause the soil of any such street to be raised, lowered or altered as they may think fit, and may place and keep in repair fences and posts for the safety of foot passengers; any person who without the consent of the urban authority wilfully displaces, or takes up, or injures the pavement stones, materials, fences or posts, or the trees of such street shall be liable to a penalty not exceeding 5L, and to a further penalty not exceeding 5s, for any square foot of pavement stones or other material so displaced and injured; he shall also be liable in case of injury to the trees to pay to the local authority such amount of compensation as the Court may award. Does that mean that the local board have a property in the tree and in the soil. I doubt very much whether that ought to be the construction put upon that enactment, but if it is, it goes a long way to show that the local board had such a property as they claim in this herbage. Even if it does not, if it will not apply to the tree which although surrounded by the street could be said in one sense to be no part of it, for the public had no right to pass over where the tree stood; and if it does not apply to a tree now in existence, but only to the trees the local board may plant or become otherwise entitled to, why even then it would show that they must have some property in the soil and its produce; that would assist the contention in favour of the plaintiff.’

Bramwell LJ, Brett LJ, Cotton LJ
(1878) 4QBD 104, [1878] UKLawRpKQB 80
Commonlii
Public Health Act 1875 149
England and Wales
Cited by:
Cited – Hurst and Another v Hampshire County Council CA 19-Jun-1997
A Local Authority is liable for any damage to adjacent property caused by the roots of a tree growing on the verge of a public highway.
Held: Pre-adoption trees vest in the highway authority for all purposes. . .
Cited – London Borough of Southwark and Another v Transport for London SC 5-Dec-2018
Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.650698

Cheyne v MacNeill: HCJ 1973

A motorist was convicted of an offence of driving a vehicle on a road without due care and attention contrary to section 3 of the 1960 Act. The question for the High Court was whether the road was a road to which the public had access. The road, a private road, provided a link between two public roads and formed a convenient link between two populous areas and ‘a material number of members of the public’ had driven along it without permission. There had never been a physical barrier to access at either end of the road, but on one day each year for the previous few years the occupiers of the private land had placed a barrier roughly halfway along the road to prevent drivers from proceeding further. There were reasonably prominent notices at each end of the road indicating that it was private and that there was no admittance except for those with business at the occupier’s premises. In the two or three years before the alleged offence, the occupier’s security officers had challenged some but not all motorists whom they believed to have no business at the occupier’s premises and told them that persons with no such business had no right to use the road; some drivers turned back but others continued along the road.
The High Court upheld the finding that the road in question was a ‘road’ for the purposes of the statutory definition. It considered that, as the policy of the legislation was public protection, the test properly focused on the likely presence of members of the public rather than on their legal right to be on the road. The single Opinion of the Court said at 29-30:
‘In deciding what is the proper construction to be put on the critical words [i.e. ‘road to which the public has access’], the purpose of the relevant statutory provisions has always to be kept in view. Plainly the purpose is to secure the safety of the public whose members may be upon or passing over the ways within the scope of the provisions. The question then is not one of determining the measure or extent of the statutory protection by reference to the measure or extent of the legal right of access or passage which members of the public can enforce or enjoy over a particular way, but whether the way is one on which members of the public may be expected to be found and over which they may be passing, or to which they are in use to have access.’
The Court then explained, in the light of this, what was meant by the requirement that the access be exercised ‘lawfully’ or ‘legally’:
‘The statute does not in terms require that the access upon which the issue of liability to the statutory provisions depends shall be in respect of any legally enforceable rights of passage. Further, the definition contrasts ‘highway’ with the words ‘road to which the public has access’. Upon a ‘highway’ the public right of passage is secured by law and its maintenance is the responsibility of a statutory authority. A ‘road’ within the meaning of the definition would therefore seem to include a way which need not possess either of these qualities. From this contrast, it is not difficult to infer that the words ‘to which the public has access’ are necessarily referable to a situation in which it is found-in-fact that the public has access – access for the purpose for which a road is intended or designed, i.e., passage on foot or in a vehicle. But when the statute refers to access it cannot be assumed that this means access which is obtained unlawfully, e.g., by climbing over or opening gates, or by surmounting walls or fences, designed to exclude potential intruders. In our opinion ‘access’, as the word is used in the definition, covers access for passage by permission express or implied from, or acquiescence or toleration by, the person or persons with legal right to control the use of the road. The degree or extent of use necessary to bring a particular road within the definition will necessarily be a question of fact in every case. Where there is such permission, acquiescence or tolerance demonstrated by use or otherwise, it can properly be said that there is nothing illegal or unlawful in such access as the public is proved to enjoy, and therefore that the public has access lawfully to the road. In using the word ‘lawfully’ we would attach to it the meaning which was given to the word ‘legally’ by Lord Justice-General Clyde in Harrison v. Hill, 1932 J.C. 13, (1931 S.L.T. 598), at p. 16 where he said: ‘There must be, as matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed – that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs. I include in permission or allowance the state of matters known in right of way cases as the tolerance of a proprietor.’ It is in this sense that the use of the word ‘legally’ in the opinion of the Lord Justice-General in the case of Hogg v. Nicholson, 1968 S.L.T. 265 is also to be understood.
If this is the proper construction of the words ‘to which the public has access’, as in our opinion it is, then the question in every case becomes one of evidence, i.e., whether the facts proved establish such an access by the public. What will suffice to prove such an access must necessarily depend on the circumstances of the particular case, but we are satisfied that the mere posting of prohibiting notices or warning signs indicating a private road will not be conclusive of the question or amount to such ‘express prohibition’ as was mentioned by Lord Sands in Harrison v. Hill (supra), at p. 17. This appears to have been the view taken by Lord Parker, C.J., in Knaggs v. Elson (1965) 109 S.J. 596 and we agree with it. The existence of notices and, indeed, evidence of actings by proprietors in relation to public use of private roads, are simply facts which form part of the whole evidence which must be considered; and if the evidence as a whole shows that, in spite of the posting of notices and other actings by a proprietor, substantial access or passage was enjoyed by the public, it may well entitle the court to draw the inference that the public use of the road was, in fact, permitted, acquiesced in or tolerated by the proprietor.’
The particular conclusion on the facts was expressed as follows:
‘In short, so extensive is the use of the road by the general public that, in spite of the notices, the annual blocking of the road, and the actings of the security officers, all of which, in our opinion, appear to have been designed to obviate the risk of a successful declarator of public right of way, there is ample warrant for the inference drawn by the sheriff that public access to the mill road is tolerated by the proprietors.’

Lord Emslie, Lord Justice-General, and Lords Migdale and Cameron
1973 SLT 27
Scotland
Cited by:
Cited – Bowen and Others v Isle of Wight Council ChD 3-Dec-2021
What makes a road a Road?
The Court was asked whether a Road was a ‘road’ for the purposes of the 1984 Act’
Held: It has often been said that the public access mentioned in the definition of ‘road’ must be both actual access and legal or lawful access. However, simple . .

Lists of cited by and citing cases may be incomplete.

Land, Road Traffic

Updated: 10 December 2021; Ref: scu.670320

Director of Public Prosecutions v Richardson: Admn 27 Nov 2014

The appellant had been convicted by justices of an offence of being in charge of a mechanically propelled vehicle on a public place while unfit through drink, contrary to section 4 of the 1988 Act. The issue was whether the vehicle was on a public place. The place in question was a private car park that provided parking spaces for the employees and customers of a number of businesses. The material facts on the basis of which the justices found that the place was a public place were (a) that there were no physical restrictions on access to the car park, (b) that there were a number of different signs for different parking spaces at the car park, and (c) that the appellant, who was an employee of a public house that had parking spaces in the car park, had parked in the car park on the night in question as a member of the public rather than as an employee.
Held: Applying DPP v Vivier and R v Spence, Julian Knowles J allowed the appeal and quashed the conviction, on the grounds that the car park was not a public place within the meaning of the Act. There was no evidence of any use of the car park by the public in general, as opposed to those members of the public who had business at the premises served by the car park.
Julian Knowles J: ‘In connection with (b) [that is, the need for proof that the public have actually enjoyed access to the place], it is important to make clear that the public’s use of the place in question must be lawful. In other words, the public must have express or implied permission to access it. This was said expressly in the Scottish case of Harrison v Hill, p 16, where the Lord Justice General, in considering whether an ordinary farm road between a public highway and a farmhouse was a road to which the public has access said:
‘I think that, when the statute speaks of ‘the public’ in this connexion, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social purposes to go to the farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways.
‘I think also that, when the statute speaks of the public having ‘access’ to the road, what is meant is neither (at one extreme) that the public has a positive right of its own to access, nor (at the other extreme) that there exists no physical obstruction, of greater or less impenetrability, against physical access by the public; but that the public actually and legally enjoys access to it. It is, I think, a certain state of use or possession that is pointed to. There must be, as [a] matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed-that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs.”

Lord Justice Beatson,
Mr Justice Simon
[2014] EWHC 4572 (Admin), [2019] 4 WLR 46
Bailii
England and Wales
Cited by:
Cited – Bowen and Others v Isle of Wight Council ChD 3-Dec-2021
What makes a road a Road?
The Court was asked whether a Road was a ‘road’ for the purposes of the 1984 Act’
Held: It has often been said that the public access mentioned in the definition of ‘road’ must be both actual access and legal or lawful access. However, simple . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Land

Updated: 10 December 2021; Ref: scu.542547

Finchley Electric Light Company v Finchley Urban Council: CA 11 Feb 1903

Under s. 149 of the Public Health Act, 1875, which provides for the vesting in the urban authority of the streets within their district, the question how much above and below the surface of the street vests in the urban authority is determined by reference to what is necessary for the user of the street qua street, without regard to the circumstances under which the site of the street was originally acquired.
Where, therefore, the site of a street which ultimately vested in the defendants as the urban authority under this section was originally conveyed to turnpike trustees in fee simple for the purposes of making a road under the Turnpike Roads Acts,
Held: That the property of the defendants in the site of the street was not thereby enlarged, so as to entitle them to prevent electric wires being carried over the street at a height above the area required for the user of the street.
Decision of Farwell J. reversed
The question was whether the defendant as local highway authority could restrain the running of a power cable by the plaintiff at a height of 34 feet above Regents Park Road in London. The council had acquired property rights in relation to the road by automatic vesting under section 149 of the Public Health Act 1875, the previous owners having been turnpike trustees, who had acquired it for the construction of a road. The fact that the council’s predecessors in title were turnpike trustees did not permit the Court of Appeal to do otherwise than apply the Baird principle to the automatic vesting achieved by section 149, even though the turnpike trustees had acquired their title by conveyance in unqualified terms, so as to have been the owners of the whole of the vertical plane above and below the location of the road. Collins MR said: ‘It seems to me that the standard which determines this question is, not how much the owner has to give, but how much the local authority under the Public Health Act have the right to take.’

[1903] UKLawRpCh 23, (1903) 1 Ch 437
Commonlii
Public Health Act 1875 149
England and Wales
Cited by:
Cited – London Borough of Southwark and Another v Transport for London SC 5-Dec-2018
Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.670329

Tunbridge Wells (Mayor Of) v Baird: HL 4 May 1896

The Public Health Act 1875, which by s. 149 vests certain streets in the urban authority, does not vest the subsoil.
Therefore where a local Act authorized the urban authority to erect and maintain ‘in any street or public place, or on land belonging to them or under their control,’ lavatories for the use of the public.
Held: that the urban authority had no power to excavate the soil and erect lavatories below the surface of a street which had vested in them within the meaning of the Public Health Act 1875.

[1896] UKLawRpAC 22, (1896) AC 434
Commonlii
Public Health Act 1875 149
England and Wales
Cited by:
Cited – London Borough of Southwark and Another v Transport for London SC 5-Dec-2018
Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance . .

Lists of cited by and citing cases may be incomplete.

Local Government, Land

Leading Case

Updated: 10 December 2021; Ref: scu.670328

Houghton v Scholfield: QBD 1973

The Court was asked whether the cul-de-sac to which the TRO applied was a ‘road’ within the definition in section 104 of the 1967 Act. At 243-244 Lord Widgery CJ, with whom Melford Stevenson and Brabin JJ agreed, said:
‘On the question of what is meant by the public having access, we have been referred to a judgment of McNair J in Buchanan v Motor Insurers’ Bureau [1955] 1 All ER 607, where, having pointed out that the public for this purpose being the general public rather than people who have a specific concern with walking on the area here in question, he went on, at p 608, to quote from Lord Sands [in Harrison v Hill, 1932 JC 13 , 17] who said:
‘In my view, any road may be regarded as a road to which the public have access upon which members of the public are to be found who have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied’.
On the disputed area, there is no sort of physical obstruction for the public to get over, no prohibition express or implied, so one could legitimately regard it as an area to which the public have access if members of the public are to be found there.’
The Lord Chief Justice’s review of the evidence showed that, at least so far as the scanty record before the Divisional Court went, it was unilluminating. But he concluded that the justices had been entitled to conclude that the cul-de-sac was a road for the purposes of the statutory definition. There are two points of significance in the case. First, the Divisional Court proceeded on the basis that Lord Sands’ dictum accurately represented the law. Second, accordingly, the Court regarded the question as being essentially a simple one of fact rather than of legal right. This latter point is made clearly in Lord Widgery’s remarks at 244 concerning the material on which the justices had been entitled to act:
‘[A]t the end of the day, on one of the most unsatisfactory cases stated this court has recently seen, the justices reached a conclusion, which is essentially a matter of fact, on material which included their own inspection, in circumstances where their own inspection would be of considerable value.’

Lord Widgery Cj, Melford Stevenson and Brabin Jj
[1973] RTR 239
England and Wales
Citing:
Cited – Harrison v Hill 1932
Mr Harrison was convicted by the Sheriff-substitute of an offence under section 7(4) of the 1930 Act on the ground that, while disqualified from holding a driving licence, he had driven a vehicle on a specific road. The Sheriff-substitute stated a . .

Cited by:
Cited – Bowen and Others v Isle of Wight Council ChD 3-Dec-2021
What makes a road a Road?
The Court was asked whether a Road was a ‘road’ for the purposes of the 1984 Act’
Held: It has often been said that the public access mentioned in the definition of ‘road’ must be both actual access and legal or lawful access. However, simple . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 December 2021; Ref: scu.670321