Category: Land

Kirkpatrick v Kirkpatrick’s Trustees: HL 23 Jun 1874

Succession – Revocation Held (aff. judgment of the Court of Session) that a mortis causa conveyance of heritage executed by a person who died prior to the Titles to Land Consolidation Act 1868 (31 and 32 Vict. cap. 101) was invalid in respect that the word ‘dispone’ was not used.
Held (rev. judgment of the Court of Session) that a revocable deed conveying the granter’s whole estate, heritable and moveable, was not revoked by a subsequent deed by necessary implication, the new deed containing no express revocation, and owing to the omission of the word ‘dispone’ being found ineffectual as a conveyance of heritage, while the former deed was effectual in all respects.

Judges:

Lord Chancellor Cairns, Lords Chelmsford, Hatherley, and Selborne

Citations:

[1874] UKHL 717, 11 SLR 717

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 20 November 2022; Ref: scu.650218

Campbell v Redstone Mortgages Ltd: ChD 29 Sep 2014

Whether the Claimant as mortgagor had a claim for damages against the Defendant as mortgagee in respect of chattels which she left behind at her property following the execution by Redstone of a warrant for possession.

Judges:

Mr Andrew Sutcliffe QC, sitting as a Judge of the High Court

Citations:

[2014] EWHC 3081 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 20 November 2022; Ref: scu.537245

Simpsons Motor Sales (London) Ltd v Hendon Corporation: HL 1964

The plaintiff complained of an attempt by the defendant local authority to enforce in October 1958 a CPO made several years earlier. He obtained at first instance an injunction to restrain the local authority from proceedings on the basis of an increase in land values between times. The Court of Appeal reversed the first instance decision.
Held: The appeal failed. Delay by the acquiring authority in acquiring the land is not a sufficient ground to disentitle it from proceeding to acquisition if it was based on good conscience unless those seeking the relief can establish bad faith or or that the owners or those seeking the relief have been placed in an unfair position because of the long period which has elapsed since the service of the notice to treat. However, where a body has a power of compulsory acquisition which is expressed or limited by reference to a particular purpose, then it is not legitimate for the body to seek to use the power for a different or collateral purpose.
Lord Evershed accepted that there might be circumstances where a court could interfere, such as where to permit the local authority to enforce its rights under the CPO would: ‘be against good conscience. In order to achieve such a result it seems to me that it would be necessary to show one or both of the following: that there had been on the part of the Corporation, something in the nature of bad faith, some misconduct, some abuse of their powers: that there had been on the part of Simpsons some alteration of their position – something must have been done or not have been done by them on the faith and in the belief that there would be a speedy acquisition of the North road site: in other words, that they had in some sense been put into an unfair position because of the long period which had elapsed since the service of the notice to treat’.

Judges:

Lord Evershed

Citations:

[1964] AC 1088

Jurisdiction:

England and Wales

Citing:

Appeal from – Simpsons Motor Sales (London) Ltd v Hendon Corporation (No 1) CA 1962
The use of land purchased under compulsory powers for a different purpose was ultra vires, but did not undermine the original notice to treat. There was no reason not to use a compendious description of the range of purposes for which land was to be . .

Cited by:

Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
At HL – Simpsons Motor Sales (London) Ltd v Hendon Corporation 1965
The paying party under an order for costs objected to the amount of leadig counsel’s fees.
Held: Pennycuick J discussed Rule 28(2) and the Smith -v- Bullins Case: ‘The words ‘or proper for the attainment of justice or for enforcing or . .
Lists of cited by and citing cases may be incomplete.

Land, Administrative

Updated: 19 November 2022; Ref: scu.414938

The Benwell Tower: 1895

Citations:

(1895) 72 LT 664

Statutes:

Conveyancing Act 1881

Jurisdiction:

England and Wales

Cited by:

Cited – Buhr v Barclays Bank plc CA 26-Jan-2001
The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 November 2022; Ref: scu.375206

Stickney v Keeble: HL 1917

The purchaser had made repeated complaints about the seller’s delay in completing construction.
Held: The repeated complaints formed a principal ground for justification of the short specified notice period.
Lord Parker of Waddington set out the principles by which to assess the reasonableness of a time specified in a notice for the completion of the construction of a property: ‘The time limited by such a notice is sometimes referred to as having become, by virtue of the notice, of the essence of the contract. In considering whether the time so limited is a reasonable time the Court will consider all the circumstances of the case. No doubt what remains to be done at the date of the notice is of importance, but it is by no means the only relevant fact. The fact that the purchaser has continually been pressing for completion, or has before given similar notices which he has waived, or that it is specially important to him to obtain early completion, are equally relevant facts: Macbryde v Weekes (1856) 22 Beav 533. Indeed, the dominant principle has always been that equity will only grant specific performance if, under all the circumstances, it is just and equitable to do so. It would be unjust and inequitable to allow the vendor to put forward his own unnecessary delay in the face of the purchaser’s frequent requests for expedition as a ground for allowing him further time or as rendering the time limited by such a notice as that to which I have referred an unreasonable time.’

Judges:

Lord Parker of Waddington

Citations:

[1915] AC 387

Jurisdiction:

England and Wales

Cited by:

Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 19 November 2022; Ref: scu.403475

Lomax and Another v Wood: CA 11 Jun 2001

Land owners were granted a right of way over an occupation road to the highway. They had other means of access to the highway, but eventually sought to construct a gateway onto the occupation road. The owners of the occupation road resisted. It was held that the express grant of the right of way must envisage some form of access being allowed. It might not included a right to create several points of access, but one gateway was inevitable.

Judges:

Schemann LJ, Mummery Lj, Sir Mrray Stuart-Smith

Citations:

Gazette 21-Jun-2001, [2001] EWCA Civ 1099

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Petty v Parsons CA 14-Jul-1914
The court considered a request by a dominant easement owner to vary the point at which he accessed a right of way. Swinfen Eady LJ said: ‘It is a question of construction in a deed granting a right of way whether the way that is granted is a way so . .
Cited – Stanton, Mills; Mills v Blackwell and Blackwell CA 15-Jul-1999
Two strips of land were adjacent but separated by a wall with a gate. The owner of one plot was given broadly phrased rights of way over both strips. He removed part of the wall over the neighbour’s land in order to make full use of the wider strip. . .
Cited – National Trust v White ChD 1987
Warner J discussed the cases of Cooke v Ingram and Pettey v Parsons concerning rights of way: ‘Each was concerned with the resolution, in particular circumstances, of the inevitable conflict between the dominant owner’s right of access to the way . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 November 2022; Ref: scu.201157

Deakin, JDeakin v Corbett, Corbett, Halifax Plc: CA 18 Dec 2002

The home owners requested the setting aside of the sale of their house after a re-possession, alleging impropriety, and that it had been sold at an undervalue. The respondent society had a rule that properties taken into possession could not be purchased by its own employees. The property had been purchased in breach of that rule.
Held: An impropriety which might allow a sale to be set aside would have to relate to the person taking possession. The lender had been deceived by its employee, and had not acted in bad faith, and no right was conferred on the original owners. The lender might have a right to avoid the transaction, but not the mortgagor.
Pumfrey J: ‘section 104(2) makes it clear that the purchaser is not protected if he has actual knowledge of the impropriety. But if the purchaser has no notice of the impropriety, then on the face of it he takes free. Thus, the completed sale by a mortgagee pursuant to his statutory power is vulnerable only if the purchaser has knowledge of, or participates in, an impropriety in the exercise of the power.’

Judges:

Mr Justice Scott Baker Lord Justice Schiemann The Honourable Mr Justice Pumfrey

Citations:

Times 28-Dec-2002, Gazette 13-Mar-2003, [2002] EWCA Civ 1849, [2005] 1 WLR 964, [2003] 2 All ER (Comm) 384, [2003] 1 WLR 964, [2003] 4 All ER 180

Links:

Bailii

Statutes:

Law of Property Act 1925 104(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 19 November 2022; Ref: scu.178559

Carlton v Goodman: CA 29 Apr 2002

The defendant claimed an interest in a house. The deceased had been a sitting tenant, and wanted to purchase his house. He could not obtain finance alone, and she joined with him, becoming liable under the mortgage. She did not live in the house until after his death. She claimed the house. No formal document regulated the arrangement.
Held: A resulting trust had been established to hold the entire house on trust for the estate in the absence of any actual monetary contribution. The case was ‘an interesting point on resulting trusts in a case where the purchase of property acquired for the sole use and occupation of one party is partly financed by a joint mortgage on the property’ and ‘Midland Bank v Cooke itself can only be properly understood when it is appreciated that the court was satisfied that by the making of a direct contribution a resulting trust had been established in the wife’s favour of some part of the beneficial interest and the real question for the court in that case was to determine what proportions the parties must have been assumed to have intended for their beneficial ownership.’

Judges:

Lords Justice Ward, Mummery and Laws

Citations:

[2002] 2 FLR 259, Gazette 30-May-2002, [2002] EWCA Civ 545

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Midland Bank v Cooke and Another CA 13-Jul-1995
Equal equitable interest inferrable without proof
The bank sought to enforce a charge given by the husband to secure a business loan. The property was purchased from the husband’s and his family’s resources and the loan, and was in his name. There had been no discussion or agreement between husband . .

Cited by:

Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Fowler v Barron CA 23-Apr-2008
The parties had lived together for many years but without marrying. The house had been put in joint names, but without specific advice on the issue or any express declaration of trust. In practice Mr Barron made the direct payments for the house and . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 19 November 2022; Ref: scu.170231

Wildtree Hotels Ltd And Others v London Borough of Harrow: CA 11 Jun 1998

Temporary, if damaging disturbance which fell short of actual damage to a neighbour’s land and which was caused by works executed on land which had been purchased compulsorily, was not normally claimable and not by the owner of only a temporary interest.

Citations:

Gazette 08-Jul-1998, Gazette 17-Jun-1998, Times 22-Jun-1998, [1998] EWCA Civ 978, [1998] 3 All ER 638

Links:

Bailii

Statutes:

Land Compensation Act 1961 10

Jurisdiction:

England and Wales

Citing:

Cited – Andreae v Selfridge and Co Ltd CA 1938
The plaintiff had a hotel. The rest of the island had been acquired by the defendant which was demolishing and rebuilding the other properties. The plaintiff complained, and the judge found, that by reason of the operations, which involved noise and . .

Cited by:

Appeal from – Wildtree Hotels Ltd and others v Harrow London Borough Council HL 22-Jun-2000
The compensation which was payable for disturbance, when works were carried out on land acquired compulsorily, did not extend to the damage caused by noise dust and vibration arising from the works. Where however damage could be brought within the . .
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 19 November 2022; Ref: scu.144457

Halifax Building Society v Campbell-Lebens: CA 4 Jun 1998

Citations:

[1998] EWCA Civ 901

Jurisdiction:

England and Wales

Citing:

Cited – Williams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980
Wife in Occupation had Overriding Interest
The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 November 2022; Ref: scu.144380

Lieut-Col Alastair M M’Donald of Dalchosnie and Kinloch-Rannoch v John Alan M’Donald and Others: HL 12 Mar 1875

In a deed of entail there was inserted after the cardinal prohibitions the following resolutive clause:-In case the heirs ‘shall contravene the before written conditions, provisions, restrictions, and limitations herein contained, or any of them, that is, shall fail or neglect to obey or perform the said other conditions and provisions, and each of them, or shall act contrary to the said other restrictions to be hereinafter added and appointed by me, excepting as is before excepted therein, in any of those cases that person or persons so contravening shall for him or herself only ipso facto amit, forfeit, and lose all right, title,’ andc.
Held (aff. judgment of Court of Session) that the clause must be construed as having reference to restrictions and limitations before written as well as to those after written, and deed of entail sustained as valid and effectual.

Judges:

Lord Chancellor Cairns, Lords Hatherley, Selborne, and O’Hagan

Citations:

[1875] UKHL 409, 12 SLR 409

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 19 November 2022; Ref: scu.650102

Edgware Road (2015) Ltd v The Church Commissioners for England: UTLC 3 Apr 2020

Restrictive Covenants – Modification – Leasehold Office Premises – planning permission for change of use to hotel – hotel use prohibited by lease – whether covenants secure to freeholder practical benefits of substantial value or advantage – application refused – s.84(1), Law of Property Act 1925

Citations:

[2020] UKUT 104 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84(1)

Jurisdiction:

England and Wales

Land

Updated: 19 November 2022; Ref: scu.649791

Banner v Berridge: 1881

Citations:

(1881) ChD 254

Jurisdiction:

England and Wales

Cited by:

Cited – Buhr v Barclays Bank plc CA 26-Jan-2001
The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 November 2022; Ref: scu.375204

Dulwich Estate v Baptiste: ChD 15 Feb 2007

The freeholder had proposed a loft conversion, and sought but was refused agreement from the trustees of the estate management scheme. The scheme required any owner wanting to make a material alteration to the appearance of a property to obtain the prior written consent of the trustees. That consentwas not to be unreasonably withheld. The arbitrator held in his favour, and the trustees appealed.
Held: The test for the arbitrator was not what decision he would have made, but whether the decision made by the trustees was one which could have been reached by a reasonable man in the circumstances. The matter was remitted to the arbitrator.

Judges:

Jonathan Crowe QC

Citations:

Times 22-Feb-2007, [2007] EWHC 410 (Ch), [2007] ArbLR 15

Links:

Bailii

Jurisdiction:

England and Wales

Land, Arbitration

Updated: 19 November 2022; Ref: scu.341731

Newcomb v Bonham: 1681

A mortgage is made reemable during the life of the mortgagor only, yet his heirs shall redeem – And in this case the mortgagor may be foreclosed in his own lifetime. But where his decree was reversed on a hearing de integro and reversal affirmed in part.

Citations:

[1681] EngR 115, (1681) 1 Vern 7, [1681] 23 ER 266

Jurisdiction:

England and Wales

Cited by:

Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 November 2022; Ref: scu.304589

Salt v The Marquess of Northampton: 1892

Citations:

[1892] AC 1

Jurisdiction:

England and Wales

Citing:

Explained – Howard v Harris 1861
Proviso in a mortgage that the mortgagor or the heirs male of his body might redeem. Decree: The assignee might redeem. . .

Cited by:

Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 November 2022; Ref: scu.304590

Raglan Housing Association Ltd v Southampton City Council and Southern Water Services Ltd: CA 30 Jul 2007

The claimant sought damages in nuisance from the defendants saying that a channel for which they were responsible flooded causing damage. The defendant appealed a finding that the culvert had become a sewer. It had been a natural stream, but had been covered over and was now entirely surrounded by concrete. The second defendant appealed a preliminary finding that the culvert was a surface water sewer.
Held: The appeal was allowed. Where work has been done to the structure of a channel through or along which a watercourse flows, the statutory authority for the work could be such that it changes the character of the flow from that of a watercourse to that of a sewer. Whether it does will depend on the facts of the given case and the terms of the statute. However, the stream started as a watercourse, carrying natural ground water, as well as, inevitably, some surface water. It still starts in the same place and is still partly open there. The natural assumption should be that it still carries natural ground water. Therefore: ‘the status of the stream as it flows through the culvert as a watercourse has not changed, however much its appearance may have changed in that part, and whatever changes there may have been to its character and even its status elsewhere in the channel, both upstream and downstream.’

Judges:

LLoyd LJ, Toulson LJ

Citations:

[2007] EWCA Civ 785, [2008] 2 All ER 44

Links:

Bailii

Statutes:

Water Industry Act 1991 219(1)

Jurisdiction:

England and Wales

Citing:

Cited – Shepherd v Croft 1911
Parker J said that ‘the mere fact that a natural watercourse is culverted or piped by the several owners of the lands which are intersected by it does not make it a drain or sewer so as to vest it in the local authority’ under the 1875 Act. . .
Cited – George Legge and Son Ltd v Wenlock Corporation HL 1938
The question was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. The claimant asserted that a right by way of an easement could be acquired despite the . .
Cited – Attorney General v Lewes Corporation 1911
The local authority was accused of discharging crude sewage into an intermittent partially tidal stream.
Held: Swinfen Eady J said: ‘The question then arises, is the culvert a sewer? The plaintiffs contend it is. The defendants dispute it. The . .
Cited – Sefton Metropolitan Borough Council v United Utilities Water Ltd CA 31-Jul-2001
Maghull Brook passed under a densely populated part of Merseyside, in an enclosed culvert constructed in about 1958. The question was whether this part had become a sewer before 1 April 1974, because of the culverting work. The parties discussed . .
Cited – British Railways Board v Tonbridge and Malling District Council CA 1981
The court was asked whether a culvert under a railway carried a sewer or a watercourse. It appeared that the construction of the railway had interrupted natural watercourses which drained a large catchment area, and the culvert was to carry the . .
Lists of cited by and citing cases may be incomplete.

Land, Torts – Other, Utilities

Updated: 19 November 2022; Ref: scu.260133

London and Regional Investments Ltd v TBI Plc and Another: CA 22 Jun 2001

Citations:

[2001] EWCA Civ 1026

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – London and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .

Cited by:

See Also – London and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 November 2022; Ref: scu.201158

Alvis v Harrison: HL 1989

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

Judges:

Lord Jauncey of Tullychettle

Citations:

(1990) 62 P and CR 10, [1989] SLT 746

Jurisdiction:

Scotland

Cited by:

Cited – D Watt (Shetland) Ltd v Reid EAT 25-Sep-2001
The employer appealed an award of ten thousand pounds including aggravated damages, and other elements after a finding of sex discrimination. They also awarded six hundred pounds in interest. It was asserted that Scots law did not allow for . .
Cited – Sargeant and Another v Macepark (Whittlebury) Ltd ChD 5-Mar-2003
The servient owner granted a lease of easements to the dominant owner, to provide a means of access to the dominant land, and from the dominant land (an hotel) to the Silverstone racing circuit. Subsequently the hotel owner negotiated a more direct . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 November 2022; Ref: scu.180363

Gafford v A H Graham and Grandco Securities Limited: CA 8 Apr 1998

A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his acquiescence. The measure of damages questions involved in such cases is a matter of judgment which is incapable of strictly rational and logical exposition from beginning to end. The primary basis of assessment ‘is to consider the sum that would have been arrived at in negotiations between the parties had each been making reasonable use of their respective bargaining positions without holding out for unreasonable amounts.’ A claimant may lose his entitlement to claim damages if he has been guilty of such acquiescence as to make it in all the circumstances unconscionable for him to rely upon his legal right.

Judges:

Nourse LJ, Pill LJ, Thorpe LJ

Citations:

Gazette 20-Oct-1999, Times 01-May-1998, Gazette 28-May-1998, [1998] EWCA Civ 666, [1998] 3 EGLR 75, [1999] 41 EG 159, [1999] 77 P and CR 73

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Shaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .

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 . .
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – Jones v Stones CA 11-May-1999
No defence of acquiescence or estoppel arose from a failure by a land owner to pursue a complaint. Such a defence could only be established by some positive act of encouragement or allowance by him. The heart of the action lay in the allowance of a . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 18 November 2022; Ref: scu.144144

Howse v Newbury District Council: CA 7 Apr 1998

The claimant sought an order to prevent the respondent erecting a building on Greenham Common. The respondent had argued that the rights of common had been removed by conveyance and the land was not registered as a common.
Held: ‘under no conceivable circumstances could Miss Howse establish that the building of the enterprise centre on the site where it is proposed to build it would interfere with any of the rights granted to her by the 1938 conveyance.’ The real burden of the complaint was as to the threat to the common as a whole. That threat arose independently and through earlier conveyances.

Citations:

[1998] EWCA Civ 655

Statutes:

Law of Property Act 1925 194

Jurisdiction:

England and Wales

Land

Updated: 18 November 2022; Ref: scu.144133

Allen v Leicester City Council: UTLC 4 Feb 2013

UTLC COMPENSATION – compulsory purchase – empty house – valuation method – whether residual valuation or subsequent sale of subject property at auction preferred as basis of valuation – basic loss payment – compensation determined at andpound;105,000

Citations:

[2013] UKUT 16 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 17 November 2022; Ref: scu.472929

Stephenson and Another v East Riding of Yorkshire Council: UTLC 7 Feb 2013

UTLC COMPENSATION – compulsory purchase – absent and untraceable owners – house in state of disrepair – cost of repair and refurbishment – valuation – comparable transactions – relevance of price achieved by formal tender – Housing Act 1985 section 17 and Acquisition of Land Act 1981 – compensation determined at andpound;205,000

Citations:

[2013] UKUT 64 (LC)

Links:

Bailii

Statutes:

Acquisition of Land Act 1981, Housing Act 1985 17

Jurisdiction:

England and Wales

Land

Updated: 17 November 2022; Ref: scu.472934

Walsh and Another, Re Bowen Road: UTLC 13 Feb 2013

UTLC RESTRICTIVE COVENANT – modification – building scheme – proposed development of dormer bungalow – whether a precedent for similar development elsewhere on estate – density and layout – whether practical benefits of substantial value or advantage to objectors – application refused – Law of Property Act 1925 s84(1)(aa)

Citations:

[2013] UKUT 34 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84(1)(aa)

Jurisdiction:

England and Wales

Land

Updated: 17 November 2022; Ref: scu.472935

Loose v Lynn Shellfish Ltd and Others: ChD 18 Apr 2013

The court was asked whether the defendants had infringed the claimant’s fishery rights in an area of the Wash.
Held: The private fishery extended seawards as far as the mean low-water mark of spring tides and the fishermen had been fishing in the area of the private fishery.
Held: The private fishery extended seawards as far as the mean low-water mark of spring tides (‘MLWS’) and that the fishermen had been fishing in the area of the private fishery, as Mr. Loose alleged.
Sir William Blackburne said: ‘The nature of the claims of the estate, and therefore of Mr Loose whose leased fishing rights are said to be co-extensive with those of the estate, is very much bound up with the shifting nature of the sandbanks and channels which are so much a feature of the eastern side of the Wash. I was taken in this regard to a series of charts going back over four centuries. The earliest was from 1588, the year of the Spanish Armada, and the next (and rather more informative) Henry Bell Chart (so-named after the person during whose mayoralty of King’s Lynn the chart was drawn) was from 1693. In those days King’s Lynn exercised an admiralty jurisdiction in its area of the Wash. Those and later charts show that whereas in earlier times tidal waters ran close to the shoreline of the area bordered by the relevant lordships, with clearly marked sandbanks separated from the foreshore at low tide, nevertheless with the passage of time and the effect of siltation and other natural phenomena the fresh water and tidal channels altered, both in terms of width and of direction, so that what were once distinct sandbanks became, when exposed at low water, part of the foreshore and thus accessible on foot from the shoreline. A striking example of this process is provided by the so-called Stubborn Sand. In the 16th and 17th centuries, this appears on the charts as an island at low tide, separated from the shore on its eastern side by a distinct channel of water and on its western side by what was known as the Old Channel. It was not then accessible on foot from dry land. The Old Channel led to King’s Lynn which lies to the immediate south and served as a navigable means of access to that port. By the 19th century Stubborn Sand had become and has since remained, when exposed at low water, a part of the foreshore. In effect it has ceased to be distinguishable as a distinct sand bank although it continues to bear that name. Indeed, as the later charts show, the Old Channel has long ceased to be a navigable channel and is nowadays really no more than a tongue of water when exposed at low tide: access by boat to King’s Lynn must now be by a channel lying further to the west.
Another example of the process of change in this part of the Wash concerns the line of what is known as Wolferton Creek. This is a fresh water outlet draining the land between Wolferton and Sandringham on the Norfolk coast to the east. In the earlier charts and maps this stream is shown as flowing into the Wash at low water in roughly an east/west direction. Later charts show the flow of the stream at low water as following a more northerly course. Its gradual shift to the north gave rise to a dispute as to the precise position of the fishery’s southern boundary. The details do not matter. In Le Strange v Lynn Corporation , to which I have already referred, the issue was settled by a determination that the boundary was the east/west line followed by the stream in earlier days.
Other sandbanks, notably the Sunk and Ferrier Sands, have ceased to be distinct ‘islands’ at low tide. Both are now accessible on foot from the shoreline where it is bordered by the estate lordships. Although once it did not, the estate, and through it Mr Loose, now claims that its fishery extends seaward over sands which are now identified on contemporary charts (moving from north to south) as the South Sunk Sand, the Outer Ferrier Sand, the Ferrier Sand and (as to its northern part) the Peter Black Sand. These were formerly inaccessible at low water from dry land but with the silting up of the channels that once separated them from the dry land are now accessible on foot at low water from the eastern shoreline . .’

Judges:

Sir William Blackburne

Citations:

[2013] EWHC 901 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

At ChD – Loose v Lynn Shellfish Ltd and Others CA 19-Jun-2014
The parties disputed the rights to take shellfish from the foreshore. Fishermen now appealed against a finding as to the extent of a private fishery from which they were excluded, in particular as to the rights overfomer sandbanks, at the western, . .
At ChD – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.

Agriculture, Land

Updated: 17 November 2022; Ref: scu.472688

Regina v Inhabitants of Greenhow: 1876

A roadway had slipped down the hillside. At one point it was some 25ft below its former position. Though the material underneath was poor and unstable, it was repairable at a substantial cost to the inhabitants of the local borough.
Held: The road had to be repaired. It had not been destroyed.

Citations:

(1876) 1 QBD 703, (1876) 45 LJMC 141, (1876) LT 363, (1876) 41 JP 7 DC

Jurisdiction:

England and Wales

Cited by:

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, Transport

Updated: 17 November 2022; Ref: scu.244699

Howard v Harris: 1861

Proviso in a mortgage that the mortgagor or the heirs male of his body might redeem. Decree: The assignee might redeem.

Citations:

[1681] EngR 89, [1681] 23 ER 288 (A), (1681) 1 Vern 33

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Explained – Salt v The Marquess of Northampton 1892
. .
Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2022; Ref: scu.304588

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 Commissioners have no jurisdiction in a dispute arising under section 13. The 1969 Regulations clearly required anyone adversely affect to be heard, and they were Human Rights compliant. The registration authority made decisions which did affect landowners, but it had power to hold an inquiry. Leave to appeal refused.

Citations:

[2004] EWCA Civ 951, Times 10-Aug-2004, [2005] 1 P and CR 24, [2004] 45 EG 126, [2005] 1 QB 282, [2004] 4 PLR 68, [2004] 3 WLR 1342, [2005] QB 282, [2004] 32 EGCS 63, [2004] 3 EGLR 1

Links:

Bailii

Statutes:

Commons Registration Act 1965 13, Commons Registration (New Land) Regulations 1969 6

Jurisdiction:

England and Wales

Citing:

Cited – Re Dance’s Way CA 1962
The chief land registrar should not decide the construction of an instrument, under the power conferred on him by rule 298(1) of the Land Registration Rules, where there was a dispute of the fact as to the surrounding circumstances, but he should . .
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 – 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 – 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 (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
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 – Chassagnou and Others v France ECHR 29-Apr-1999
A law permitted local authorities to oblige landowners to transfer hunting rights over private land to approved hunting associations. The landowners could not prevent hunting on their property. Landowners so affected were made members automatically . .
Cited – Albert And Le Compte v Belgium (Article 50) ECHR 24-Oct-1983
The applicants were Belgian nationals and medical practitioners. Dr Le Compte was suspended from practising medicine for two years for an offence against professional discipline. He appealed to the Appeals Council, alleging violations of Article 6. . .
Lists of cited by and citing cases may be incomplete.

Land, Human Rights

Updated: 14 November 2022; Ref: scu.199350

Yaxley v Gotts and Gotts: CA 20 Mar 1998

The defendants were granted leave to appeal out of time.

Citations:

[1998] EWCA Civ 512

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .

Cited by:

Leave to appeal – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2022; Ref: scu.143990

Wintour Holdings Limited v Khan: CA 23 Mar 1998

The claimant sought leave to appeal against a decision on a right of way over a passageway between the parties’ properties. The defendant had since the trial found documents which suggested that he had in fact been the owner of the land over which the right was claimed.
Held: Leave was refused. The document merely confirmed rights then existing and there was no evidence that such right had existed at the relevant time.

Judges:

Sir Richard SCott VC, Schiemann LJ

Citations:

[1998] EWCA Civ 521

Jurisdiction:

England and Wales

Land

Updated: 14 November 2022; Ref: scu.143999

Hooper and Another v Oates: CA 20 Feb 2013

The parties had agreed for the purchase of land, but the buyer, Mr Oates, failed to complete. A notice to complete was served, and on non-compliance, the repudiation was accepted. It proved difficult to resell, and they suffered substantial losses. The court was now asked whether the damages were to be measured by reference to the value at the date of the breach, or to some later date, when in this case, the vendor’s subsewuent losses would be included.
Held: The judge had been right to reject the suggestion that the breach date was decisive.

Judges:

Lloyd, Leveson, Toulson LJJ

Citations:

[2013] EWCA Civ 91, [2013] 3 All ER 211, [2013] 1 P andCR DG22, [2013] 1 EGLR 93, [2014] 2 WLR 743, [2013] 9 EG 93, [2013] WLR(D) 72, [2013] 16 EG 108, [2014] Ch 287

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Laird v Pim and Another 18-Jan-1841
Where a party has been let into possession of lands under a contract of purchase, but does not complete the purchase, and refuses to pay the purchase-money, and no conveyance is executed, the vendors cannot recover from him the whole amount of the . .
Cited – Laird v Birkenhead Railway Co 22-Nov-1859
The plaintiff applied to the defendant railway company for permission to construct and use a private branch line connecting with the railway company’s main line. Agreement was reached for the plaintiff to do so ‘on reasonable terms, which were to be . .
Cited – Johnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Damages

Updated: 14 November 2022; Ref: scu.472108

Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another: CA 27 Mar 2013

The port challenged the proposed registration of part of the beach at Newhaven as a village green, saying that the result would be inconsistent with their performance of their statutory duties.

Judges:

Richards, McFarlane, Lewison LJJ

Citations:

[2013] EWCA Civ 276, [2013] 3 All ER 677, [2014] QB 186, [2013] 15 EG 105, [2013] 3 WLR 1389, [2013] 2 EGLR 1, [2013] WLR(D) 127

Links:

Bailii, WLRD

Statutes:

Commons Act 2006, The Newhaven Harbour and Ouse Lower Navigation Act 1847, Newhaven Harbour Improvement Act 1878

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Appeal from – Newhaven Port and Properties Ltd v East Sussex County Council and Others Admn 21-Mar-2012
The company objected to the proposed registration by the defendant Council of a strip of beach land as a common. They said that it was not a ‘town or village green’ within the 2006 Act.
Held: The court rejected all grounds of objection, save . .

Cited by:

See Also – Newhaven Port and Properties Ltd, Regina (on The Application of) v Secretary of State for The Environment Food and Rural Affairs CA 14-Jun-2013
. .
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2022; Ref: scu.472066

Quigley v Masterson: ChD 7 Oct 2011

The court was asked whether a beneficial joint tenancy of a dwelling house had been severed before the death of one of the two joint tenants.

Judges:

Mr Justice Henderson

Citations:

[2011] EWHC 2529 (Ch), [2012] WTLR 521, [2012] 1 All ER 1224, [2011] NPC 98, [2012] 1 P and CR DG8, [2011] 49 EG 100

Links:

Bailii

Jurisdiction:

England and Wales

Land, Trusts

Updated: 14 November 2022; Ref: scu.445048

MacKenzie v Childers: ChD 1890

A deed contained a recital that it was intended to be a part of all future contracts for sale of the plots that the several purchasers should execute the deed, and be bound by the stipulations contained in it; and thereby it was expressed that each purchaser covenanted with the vendors and with the other purchasers to conform to certain stipulations restrictive of the mode of building on the plots, but there was no express covenant to the like effect by the vendors. Some of the plots were sold, and the several purchasers executed the deed, as did also the vendors. For twenty years subsequently the stipulations were observed, and as plots were from time to time sold the respective purchasers executed the deed.
Held: Kay J discussed the appropriate interpretative techniques to be applied to a recital, saying: ‘I am clearly of opinion that the recitals in this deed do not mean that the intention was one which the trustees were at liberty to change, but that the meaning is that the land coloured green, whether sold or unsold, should not be used in a manner contrary to the building scheme, or, to take the very point now in controversy, that none of the lots marked on the building plan should have more than one house built on it.
Then, if that is the meaning of this deed, what is its effect? It is a deed inter partes, the several parties being the vendors and the purchasers who execute. No formal words are necessary to make a covenant in such a deed. A statement of a binding intention on the part of the vendors who execute the deed, made, on the face of it, for the purpose of inducing the several purchasers to buy, is as good a covenant as could be made by the most formal words.’

Judges:

Kay J

Citations:

(1890) 43 ChD 265

Jurisdiction:

England and Wales

Cited by:

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

Land

Updated: 14 November 2022; Ref: scu.463799

Rudra v Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited: CA 26 Feb 1998

The parties disputed whether a contract had been entered into for the sale of land, and whether new evidence could be entered on an appeal against a strike out. The estate agents had signed a contract as agents for the mortgagee in possession, but the mortgagee said that they has acted outside their agency. Eventually the mortgagee had the claim against it struck out under Order 14A.
Held: Section 2 has introduced a new regime. Old authorities on Section 40 of the Law of Property Act 1925, and indeed Section 4 of the Statute of Frauds 1677, are not necessarily of much, if any, assistance in its interpretation. An application to strike out proceedings as an abuse of process is an even more summary procedure involving less consideration of the merits, although inevitably involving some consideration of the merits, than summary judgment given under Order 14 or Order 86. The claimant was not to be allowed to adduce further evidence given his delay, and his application to amend was struck out.

Citations:

[1998] EWCA Civ 361

Statutes:

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

Jurisdiction:

England and Wales

Citing:

Cited – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .
Cited – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Langdale v Danby HL 1982
Summary judgment had been given under Order 86. A solicitor had acted gratuitously and in good faith for the other party in the sale of a cottage, subject to an option to repurchase the cottage at the same price after 21 years. He obtained summary . .
Cited – Williams v Attridge Solicitors (a Firm) CA 8-Jul-1997
The solicitor-defendants were seeking to prove a negative and to show at the very outset of the proceedings that the claim should be struck out without the need for any further inquiry. The court considered the admission of new evidence on an appeal . .
leave to Appeal – Rudra v National and Provincial Building Society; Stickley and Kent (Risk Management Unit) Ltd CA 22-Aug-1997
Before the auction, the estate agents had signed a contract to sell the house to the claimant. The Society, as mortgagees, said that the agents did not have authority to bind it, and that the contract did not sufficiently identify the property so as . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 14 November 2022; Ref: scu.143839

Howse and others v Secretary Of State for Defence: CA 4 Mar 1998

The applicant had sought removal of a fence erected near Greenham Common airbase. She sought leave to appeal an order refusing its removal. The land was a common.
Held: The fence served a proper purpose, and there were insufficient grounds to expect any success on an appeal. Leave refused.

Citations:

[1998] EWCA Civ 393

Statutes:

Law of Property Act 1925 194(1)

Jurisdiction:

England and Wales

Land

Updated: 14 November 2022; Ref: scu.143871

Cheltenham and Gloucester Plc v Booker and Another: CA 14 Nov 1996

Whether the court has jurisdiction, and if so in what circumstances should it exercise such jurisdiction, to give conduct of a sale to a mortgagee while at the same time postponing the execution of a warrant for possession until completion of the sale.

Citations:

[1996] EWCA Civ 957, (1997) 29 HLR 634, (1997) 73 P and CR 412, [1997] 1 FLR 311, [1997] Fam Law 327, [1997] 19 EG 155, [1997] 1 EGLR 142

Links:

Bailii

Jurisdiction:

England and Wales

Land, Litigation Practice

Updated: 14 November 2022; Ref: scu.662193

Miller v Subhani: UTLC 30 Mar 2020

Restrictive Covenants – Discharge – Proposed Use of Field As A Farm Strip for Private Aircraft in close proximity to Sandown Airport – planning permission for construction of agricultural barn – whether to be used to hangar applicant’s aircraft – possibility of future unspecified use of application land – relevance of GPDO – Law of Property Act 1925 section 84(1)(a), (aa), (b) and (c) – application refused

Citations:

[2020] UKUT 94 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 14 November 2022; Ref: scu.649469

Jobson v Record: CA 1998

A right of way was granted for all purposes connected with the use and enjoyment of the dominant tenement as agricultural land. The dominant tenement was used for the purpose of storing timber felled on neighbouring land and the question was whether the right of way could be used for the purpose of removing that timber.
Held: It could not. Morritt LJ said: ‘If the storage was a separate operation it was not an agricultural use of (the dominant tenement). If it was not an operation separate from the felling of the timber, then the use of the right of way for the removal of the timber felled at (the neighbouring tenement) was in substance for the accommodation of (the neighbouring tenement). Either way, the use of the right of way was not authorised by the terms of the grant.’

Judges:

Morritt, Simon Brown LJJ, Sir Brian Neil

Citations:

[1998] 09 EG 148

Jurisdiction:

England and Wales

Citing:

Applied – Harris v Flower CA 1904
The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2022; Ref: scu.523881

Moore v British Waterways Board: CA 14 Feb 2013

The claimant resisted an attempt by the respondent to enforce the removal of his four vessels on a stretch of the Grand Union Canal at Brentford. He was the riparian owner, but did not own any part of the bed.
Held: His appeal was allowed. Although at common law he would not have a right to moor vessels permanently, that did not make the mooring unlawful within section 8 of the 1983 Act so as to allow a direction for their removal.

Judges:

Mummery, Jackson, Lewison LJJ

Citations:

[2013] EWCA Civ 73, [2013] 2 P andCR 7, [2013] 1 Ch 488, [2013] 3 All ER 142, [2013] WLR(D) 59, [2013] 3 WLR 43

Links:

Bailii, WLRD

Statutes:

British Waterways Act 1983 8

Jurisdiction:

England and Wales

Citing:

Appeal from – Moore v British Waterways Board ChD 10-Feb-2012
The claimant said that the defendant did not have the powers it claimed in serving notices requiring him to remove boats from a section of the Grand Union Canal.
Held: The respondent did have the power under section 8 of the 1983 Act. As a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2022; Ref: scu.470968

The Manchester Ship Canal Company Ltd and Another v United Utilities Water Plc: CA 7 Feb 2013

‘This appeal is concerned with limited but important aspects of one power of sewerage undertakers, the implied power to discharge the contents of . . sewers . . on to third party property without the owner’s consent (‘the implied right of discharge’). This court held that that right was implied in the statutory framework governing sewerage undertakers in 1897. The central question on this appeal is this: was this right, as Newey J held, permanently saved from repeal in 1989 or 1991, as respects outfalls from sewers in place in 1989, because it was transferred under statutory transfer schemes for the transfer of property, rights and liabilities from the then sewerage undertakers to successor companies in preparation for privatisation in 1989?’

Judges:

Arden, Sullivan, Patten LJJ

Citations:

[2013] EWCA Civ 40, [2013] WLR(D) 50, [2013] 2 All ER 642, [2013] Env LR 20, [2013] 1 WLR 2570

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Utilities, Environment, Land

Updated: 14 November 2022; Ref: scu.470831

Godmanchester Town Council, Regina (on the Application Of) v Secretary of State for the Environment Food and Rural Affairs: CA 19 Dec 2005

The court considered whether a pathway had become a public highway.
Held: ‘The main question for the Court is whether sufficiency of evidence of an intention not to dedicate necessary to satisfy the proviso requires, as a matter of law, that during the relevant 20 year period the landowner should not only prove that negative intention, but also acts communicating it or likely to bring it to the attention of users of the way. There is also a sub-issue – though in practical terms of little importance – namely whether, if evidence of communication of that negative intention to users of the way is not necessary to satisfy the proviso, it is at least necessary to prove it by overt and contemporaneous acts during the relevant period. ‘ and ‘The statutory scheme . . . creates a delicate balance between, . . . the interest of the public in having access to what have become highways as a result of their nature and length of use of them . . . And . . . the interest of landowners in retaining control over their own land. In order to establish the rebuttable presumption, a claimant must show 20 years of use, not only ‘as of right’ in the sense which, since Sunningwell, does not depend upon what the users of the way believe to be the case. He must also show that it has been ‘without interruption’, for example, without interference from the landowner by overt, in the sense of identifiable acts preventing or significantly deterring passage . . . mere absence of continuity in actual user does not amount to interruption. Only if a claimant establishes those matters does the rebuttable presumption of dedication arise and then, a need to consider the proviso. Sunningwell does not help on the proviso, save, possibly in favour of the landowner, on the balance underlying the presumption and the counter-balance provided by it.’ The new legislation enabled landowners to turn to rebut the presumption with simply a sufficiency of evidence of an intention that there had been no intention to dedicate it during the material 20 year period.

In my view, the proviso in favour of the landowner has been carefully drawn and in the sparest of terms – ‘sufficient evidence’ of ‘no intention . . to dedicate’ – to provide, as near as can be provided, an equilibrium between the interest of landowners and that of the public in respect of claimed rights of way. It was not intended, as I believe, to make it easier for the public to establish a way as a highway when confronted with a landowner’s contrary intention. ‘

Judges:

Lord Justice Auld Mr Justice Bennett Lady Justice Arden

Citations:

Times 27-Dec-2005, [2005] EWCA Civ 1597, [2006] QB 727, [2006] 2 WLR 1179

Links:

Bailii

Statutes:

Highways Act 1980 31(1) 31(2)

Jurisdiction:

England and Wales

Citing:

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 – 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 – Regina v Secretary of State for Environment ex parte Billson Admn 16-Feb-1998
A deed granting access to a common in accordance with the section included access by horseback as well as by foot. The court upheld the Inspector’s decision that the 20-year user of the land relied upon by the applicant for the modification was not . .
Cited – Regina v Secretary of State for the Environment, ex parte Cowell CA 1993
The question of sufficiency of evidence for the purpose of the proviso in the subsection is a question of fact for the tribunal to determine in each case. The court rejected a broad submission from the appellant that the 1980 Act and its predecessor . .
Cited – Regina v Secretary of State for Environment, Transport and Regions ex parte Dorset County Council Admn 22-Jun-1999
The court was asked to review a decision not to confirm a public right of way. The court considered whether the landowner had to show some overt act as evidence of his lack of intention to dedicate the land. Dyson J said: ‘On the face of it, the . .
Cited – Jacques v Secretary of State for the Environment CA 1995
The Inspector had found that the landowner had, by overt acts directed at users of the way in question, including the erection of locked gates and of fencing and of notices, disproved any intention on his part to dedicate.
Held: The . .
Cited – Secretary of State for the Environment v Beresford Trustees CA 31-Jul-1996
Hobhouse LJ, adopted at least part of Denning LJ’s approach in Fairey, holding that the absence of intention to dedicate had to be ‘objectively established by overt acts of the landowner’, and that ‘This is not a subjective test. The absence of . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 November 2022; Ref: scu.236547

Fisher and Another v English Nature: Admn 4 Jul 2003

The claimants were trustees of land. The Respondent had notified the Secretary of State that they considered that part of the land satisfied the criteria to be certifed as being of special scientific interest. They now intended to confirm the notification. The claimants said that they could have considered alternative ways of protecting the land including acceptance of undertakings or alternative designations which were less onerous.
Held: The statute required that if the respondent remained genuinely convinced that the site satisfied the criteria, it had no discretion and had to confirm the notification. The notification was not therefore disproportionate. The claimant had disavowed any challenge of the underlying law, and therefore the claim failed.

Judges:

Lightman J

Citations:

[2003] EWHC 1599 (Admin), Times 15-Sep-2003, [2004] 1 WLR 503, [2004] Env LR 7, [2003] 4 All ER 366, [2004] JPL 217, [2003] NPC 84

Links:

Bailii

Statutes:

Wildlife and Countryside Act 1981 28(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Nature Conservancy Council ex parte London Brick Property Ltd 1996
. .
Cited – Simplex GE (Holdings) Limited v Secretary of State CA 1988
A decision should in general be quashed if by way of error a relevant consideration is not taken into account or an irrelevant consideration is taken into account unless the decision-maker was bound on the facts to have reached the same conclusion . .
Cited – Oerlemans v The Netherlands ECHR 27-Nov-1991
Land was designated as ‘a protected natural site’, the effect of which was that agricultural activities could continue but that if the owner wished to alter or intensify the use of the land or to make certain changes in agricultural practices, . .
Cited – Fredin v Sweden ECHR 18-Feb-1991
A gravel pit licence was revoked without compensation pursuant to legislation brought in after the owner had acquired the pit but before it had begun to exploit it. The actual revocation took place after the pit had been exploited for a number of . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Tre Traktorer Aktiebolag v Sweden ECHR 7-Jul-1989
An alcohol licence for a restaurant was withdrawn with immediate effect because of financial irregularities, with the result that the restaurant business collapsed.
Held: ‘The government argued that a licence to sell alcoholic beverages could . .

Cited by:

Cited – Trailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature QBD 6-Feb-2004
The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human . .
Appeal from – Regina on the Application of Fisher v English Nature CA 27-May-2004
The claimants appealed a refusal of their request for a judicial review of a decision of the respondent to designate their land as being of special scientific interest because of the need to protect the stone curlew.
Held: The defendant’s . .
Lists of cited by and citing cases may be incomplete.

Environment, Land, Human Rights

Updated: 13 November 2022; Ref: scu.185635

Ropaigealach v Barclays Bank plc (1): CA 11 Dec 1997

Application for leave to appeal on issue of whether ‘by necessary implication, the effect of section 36 of the Administration of Justice Act is that a mortgagee must first obtain the leave of the court before proceeding to enforce its right to possession or its power of sale under the mortgage deed in relation to a dwelling house.’
Held: Leave was granted.

Citations:

[1997] EWCA Civ 2969

Statutes:

Administration of Justice Act 1973 36

Jurisdiction:

England and Wales

Cited by:

Leave to appeal – Ropaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 November 2022; Ref: scu.163311

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 prejudice to the land. Robert Walker LJ doubted ‘whether it is correct to imply that a profit of pasture appurtenant can never in any circumstances be acquired by prescription for a fixed number of animals, but that does not affect the basic point that prescription of a profit appurtenant must be by way of activities which accommodate the land to which it becomes appurtenant.’

Judges:

Robert Walker LJ

Citations:

Times 11-Mar-1999, [1998] EWCA Civ 51

Statutes:

Law of Property Act 1925 187, Commons Registration Act 1965

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 November 2022; Ref: scu.143529

Co-Operative Retail Services Ltd v Tesco Stores Ltd: CA 20 Jan 1998

A covenant against the use of land for ‘the purpose of food retailing’ was not breached by the use of the land for associated landscaping without which immediately adjoining land could not have been used for food retailing.

Citations:

[1998] EWCA Civ 42, (1998) 76 P and CR 328

Jurisdiction:

England and Wales

Cited by:

Cited – GLN (Copenhagen) Southern Ltd v Tunbridge Wells Borough Council CA 27-Aug-2004
Neighbouring plots included covenants to use and not to use the land as cinemas. A proposed development would have used the land which had to be so used as an access for the new cinema proposed. The claimant sought to rely upon the Act to enforce a . .
Cited – Jarvis Homes Ltd v Marshall and Another CA 6-Jul-2004
An intended new road was going to be the access way for 12 new houses. Part of a restrictive covenant provided that the covenantors and their successors would not ‘use or permit or suffer to be used the land hereby conveyed or any part thereof or . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 November 2022; Ref: scu.143520

Hillman and Hillman v Rogers and Rogers: CA 19 Dec 1997

The parties disputed rights of way. The court considered the use of extrinsic evidence to construe the conveyance at issue. Robert Walker LJ: ‘It is to my mind clearly a case in which the court needs all the help it can get, and is entitled to make use of all the help it can get, from extrinsic evidence: see the observations of Megarry J in Neilson v Poole.’

Judges:

Robert Walker LJ

Citations:

[1997] EWCA Civ 3069

Jurisdiction:

England and Wales

Citing:

See Also – Hillman and Hillman v Rogers and Rogers CA 30-Apr-1998
A court order can properly be recalled to correct an error before it had been perfected. This appeal was rejected also as attempt to re-litigate the interpretation of a section in the appeal judgement. . .
Cited – Scarfe v Adams CA 1981
Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .

Cited by:

See Also – Hillman and Hillman v Rogers and Rogers CA 30-Apr-1998
A court order can properly be recalled to correct an error before it had been perfected. This appeal was rejected also as attempt to re-litigate the interpretation of a section in the appeal judgement. . .
Cited – Ali v Lane and Another CA 21-Nov-2006
The parties disputed the boundary between their neighbouring plots of land.
Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 November 2022; Ref: scu.143468