Category: Land

Lomax and others v Secretary of State for Transport, Local Government and the Regions and another: Admn 10 May 2002

The authority sought compulsory purchase of land which adjoined a motorway. An agreement was made before the enquiry, but the inspector felt that others who were not represented would also be affected, and recommended rejection of the agreement. The Secretary of State proceeded, after substantial correspondence including with the objectors. The objectors complained that though affected they had not been given opportunity to object as required by the rules.
Held: For a breach of the rule to have taken place there had to be new material taken into account by the secretary which was causative of the decision, and that, if he had abided by rule 17(4), might have led to a different decision. In this case though the rule had been breached, the applicants could not show that they had been prejudiced in this way.

Citations:

Gazette 23-May-2002

Statutes:

Acquisition of Land Act 1981 23(2), Compulsory Purchase Rules 1990 17(4), Town and Country Planning Act 1990 266

Jurisdiction:

England and Wales

Land, Planning

Updated: 04 November 2022; Ref: scu.171267

Godden v Merthyr Tydfil Housing Association: CA 15 Jan 1997

The Plaintiff was a building contractor; the Defendant a housing association engaged in developing suitable sites for residential accommodation for letting to tenants. Before the contract the parties had successfully completed what was been called the Trelewis Development which followed, it is said, an oral arrangement. The plaintiff appealed a striking out of his claim on the basis that there was no enforceable contract under the 1989 Act.
Held: The argument propounded would vitiate the 1989 Act. An estoppel should not be allowed to prevent the defendants arguing that no contract existed. In this case it would be inappropriate to allow an amendment to the pleadings in mid-appeal. Where all the obligations between the parties were integral to each other, part and parcel of a single scheme, section 2 applied to the transaction.
Discussing the Tootal Clothing case, Simon Brown LJ said: ‘However, nothing in that case – not even in Scott LJ’s judgment, which went further than those of the other members of the Court and further indeed than was necessary to the decision- to my mind support the Appellant’s claim to enforce any aspect of the present transaction, given (a) that no part of it whatsoever was in writing, and (b) central to the entire scheme was the ultimate transference of land from the Plaintiff to the Defendants.’

Judges:

Simon Brown LJ

Citations:

[1997] EWCA Civ 780, (1997) 74 P and CR D1

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

Cited – Tootal Clothing Ltd v Guinea Properties Ltd CA 1992
By a single commercial transaction the parties agreed to the grant of a lease, on terms that Tootal (the intending lessee), would carry out shop-fitting works, have the benefit of a three months rent-free period during the which the works were to be . .
Cited – Daulia Ltd v Four Millbank Nominees Ltd 1978
In a contract the Defendants promised certain properties to whoever first arrived with the requisite draft contract and bankers drafts. The Plaintiffs did.
Held: They failed in their claim. It involved a unilateral contract and the Defendants’ . .
Cited – Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd CA 1982
The court explained the nature of an estoppel by convention.
Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone . .

Cited by:

Cited – Evans v James (Administratrix of the Estate of Thomas Hopkin Deceased) CA 5-Jul-1999
Before the parties called evidence, and having read the papers, the court considered that there was no real defence shown, and invited submissions. Negotiations for the grant of a tenancy had been terminated by the sudden illness of the proposed . .
Cited – 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 . .
Cited – Bankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
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 . .
Cited – Iesini and Others v Westrip Holdings Ltd and Others ChD 16-Oct-2009
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Estoppel

Updated: 04 November 2022; Ref: scu.141176

The Rev John Daniel v The Award of The Commissioners for Liquidating British Claims On France: PC 25 Nov 1825

(United Kingdom) A corporation of British subjects in a foreign country, existing for objects in opposition to British law, and under the control of a foreign government, is not erititled to claim any compensation from the government of the country in which they existed, for the confiscation of their property under a treaty giving that right to British subjects.
The individual members of such a corporation are also equally incapacitated from making any claim, as British subjects, for the loss of their income arising from the funds of such a corporation.

Citations:

[1825] UKPC 1

Links:

Bailii

Land

Updated: 03 November 2022; Ref: scu.462551

Oakglade Investments Ltd v Greater Manchester Passenger Transport Executive: LT 16 Sep 2008

LT COMPENSATION – compulsory purchase – preliminary issue – notice to treat ceasing to have effect – reference to Tribunal by acquiring authority – whether Tribunal has jurisdiction – whether waiver or estoppel on part of claimant – held no waiver or estoppel – reference dismissed – Compulsory Purchase Act 1965 s 5(2A), (2B) and (2C).

Citations:

[2008] EWLands ACQ – 79 – 2005

Links:

Bailii

Jurisdiction:

England and Wales

Land, Damages

Updated: 03 November 2022; Ref: scu.278626

Levinson (Valuation Officer) v Robeson and Another: LT 11 Aug 2008

LT RATING – composite hereditament – dwelling-house used wholly for living accommodation -dwelling-house together with its garden and other appurtenances constituting one hereditament and falling within one curtilage – whether some commercial use of the garden and appurtenances prevent them from being domestic property – appeal dismissed – Local Government Finance Act 1988 sections 42, 64 and 66.

Citations:

[2008] EWLands RA – 34 – 2007

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 03 November 2022; Ref: scu.278616

Mitchem and Edmunds v Magnus Homes South West Limited: CA 5 Dec 1996

The defendant company appealed orders for the discharge of its class C(iv) charges against the plaintiff’s land, which it said represented a contract for the purchase of the land. An option had been given to the appellant, but it had expired.

Citations:

[1996] EWCA Civ 1111

Jurisdiction:

England and Wales

Contract, Land

Updated: 03 November 2022; Ref: scu.140978

Louis and Another v Sadiq: CA 12 Nov 1996

There was a two-storey end of terrace house in North London owned by Mr Sadiq and his neighbours, Mr and Mrs Louis. The appellant had commenced substantial works to his house, which caused damage to the party wall. The appellant had not complied with his obligations under the 1939 Act.
Held: The works carried out could never have been approved retrospectively. Evans LJ discussed the 1939 Act: ‘So the statutory scheme is clear. The building owner has certain express rights but these can only be exercised (i) with the adjoining owner’s written consent or (ii) in accordance with a valid award by the surveyor or surveyors appointed under s.55.’
Evans LJ reviewed the authorities and said: ‘The adjoining owner’s common law rights are supplanted when the statute is invoked which can have the effect of safeguarding the building owner from common law liabilities when he complies with the statutory procedures . . But if he commits an actionable nuisance without giving notice and without obtaining consent he cannot rely upon a statutory defence under procedures with which ex hypothesi he has failed to comply. If he does then give notice he will in due course acquire statutory authority for whatever works are approved or agreed but in my judgment this does not relieve him from liability for the continuing nuisance which he has unlawfully committed until such time as, and to the extent that such authority is obtained.’

As to the particular case: ‘So it cannot be said in my judgment that the works which created the nuisance were subsequently authorised whether by agreement or by surveyors under the statutory procedure.’

Judges:

Evans LJ

Citations:

[1996] EWCA Civ 935, [1997] 1 EGLR 1996

Statutes:

London Building Acts (Amendment) Act 1939

Jurisdiction:

England and Wales

Citing:

Cited – Selby v Whitbread and Co 1917
McCardie J considered the tension between the common law and statute: ‘An examination of the code shows that common law rights are dealt with in a revolutionary manner. The two sets of rights . . are quite inconsistent with one another. The . .

Cited by:

Cited – Rodrigues v Sokal TCC 30-Jul-2008
The parties owned either half of a semi-detached residence. The defendant had undertaken substantial redevelopment works, and the claimant sought damages under the 1996 Act for his failures to follow that Act. The issues had been taken to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 03 November 2022; Ref: scu.140802

Louis v Sadiq: CA 22 Nov 1996

The defendant neighbour had carried out construction works on a joint structure involving its demolition. He had not complied with the requirements of the 1917 Act.
Held: A neighbour doing work on a party wall without complying with the requirements of the Act was creating a nuisance, and he made himself liable for special damages, including some financial losses. A later award under the Act does not relieve a building owner from liability in nuisance or interference with rights of support for works undertaken before the date of the award, and he could not rely upon a defence in the Act, having later complied with it, to excuse his earlier wrong.

Judges:

Evans LJ

Citations:

Gazette 13-Dec-1996, Times 22-Nov-1996, [1997] 1 EGLR 136

Statutes:

London Building Acts (Amendment) Act 1939

Jurisdiction:

England and Wales

Cited by:

Cited – Rodrigues v Sokal TCC 30-Jul-2008
The parties owned either half of a semi-detached residence. The defendant had undertaken substantial redevelopment works, and the claimant sought damages under the 1996 Act for his failures to follow that Act. The issues had been taken to . .
Lists of cited by and citing cases may be incomplete.

Land, Damages, Construction

Updated: 03 November 2022; Ref: scu.83220

Berryman v Hounslow London Borough Council: CA 20 Nov 1996

No damages were to be awarded for a tenant’s injury suffered whilst climbing the stairs when the lift had not been repaired.

Citations:

Times 18-Dec-1996, [1996] EWCA Civ 1001

Jurisdiction:

England and Wales

Landlord and Tenant, Land, Housing, Personal Injury

Updated: 03 November 2022; Ref: scu.78369

Poste Hotels Ltd v Cousins: ChD 12 Mar 2020

Whether the Defendant had an easement of parking, pursuant to which she had a right to park a car in Church Court, Stamford and whether parking by the Defendant in a particular part of Church Court resulted in an actionable interference by her with the Claimant’s right of way over Church Court.

Judges:

Morgan J

Citations:

[2020] EWHC 582 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 03 November 2022; Ref: scu.649100

Coventry Permanent Economic Building Society v Jones: ChD 1951

The contracting purchaser of a property agreed, prior to completion, to let the ground floor of the property to two tenants. She subsequently borrowed a sum of money from the plaintiffs to enable her to complete the purchase. On completion, she granted the plaintiffs a mortgage which contained a prohibition on the creation of tenancies. On a claim for possession by the plaintiffs, the tenants argued that a tenancy by estoppel had been created prior to completion
Held: The grant of the tenancies conferred on the prospective tenants an equitable interest.
Harman J said: ‘The question is whether I must assume the scintilla temporis and assume that because of the obligations of the landlord she must be held to have defrauded her mortgagee by creating a tenancy which is good against the society although it was not willing to lend the money except on the footing that she had no such right. I do not see why I need postulate this. The whole transaction was one transaction. The vendor would not sell without receiving his purchase money, and the mortgagee would not provide the purchase money without receiving the term of years. The money, in fact, went straight – as is the universal practice – from the mortgagee to the vendor, and not until it was in the vendor’s hands would a legal state be created wither in favour of the landlord or of the mortgagee. It seems to me that the whole thing is one transaction in substance, and I am not constrained to introduce an artificiality so as to affect the rights of the building society. Consequently, I reject the argument that the doctrine of estoppel must have created in the tenants an estate in priority to that of the building society. The grantor of the so-called tenancy would never have acquired the estate which she did acquire but for that mortgage money, and it would not be right, therefore, to introduce a fiction in the manner suggested.’

Judges:

Harman J

Citations:

[1951] 1 All ER 901

Jurisdiction:

England and Wales

Cited by:

Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Distinguished – Universal Permanent Building Society v Cooke CA 1951
The mortgagor agreed to buy a shop with living accommodation above. She let the flat to her sister before completion, and by the date of the mortgage, the sister was in possession. After default, the lender sought possession under the mortgage, but . .
Approved – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 03 November 2022; Ref: scu.450472

Co-operative Insurance Society Ltd v Hastings Borough Council: ChD 23 Jun 1993

The local authority made a CPO in 1981 in respect of a sports ground. The applicants later acquired the land. In 1989 the order was confirmed and in March 1989 a vesting order was made. The authority was unable to afford to complete the purchase. In October 1992, the applicant sought a declaration that the order was no longer exercisable.
Held: A compulsory purchase order cannot be kept alive beyond the three year limit after its publication. The service of the particulars under 3(3) of the 1981 Act did not exercise the powers given by the order; that could only be done by a notice to treat. Accordingly the notice had lapsed. The failure by parliament when passing legislation in a related field to overrule a decision did not have the effect of confirming that decision.

Judges:

Vinelott J

Citations:

Times 23-Jun-1993, 91 LGR 608

Statutes:

Compulsory Purchase (Vesting Declarations) Act 1981 4, Compulsory Purchase Act 1965 4 5, Acquisition of Land Act 1981 3(1) 26(1), Planning and Compensation Act 1991 67

Jurisdiction:

England and Wales

Citing:

Not followed – Westminster City Council v Quereshi 1961
. .
Cited – Hagee (London) Ltd v A B Erikson and Larson (a Firm) CA 1975
Tenancy at Will not protectable by 1954 Act
A tenancy at will falls outside the protection of the 1954 Act, though ‘parties cannot impose upon an agreement, by a choice of label, a nature or character which on its proper construction it does not possess’. Entry into possession while . .
Cited – Otter v Norman HL 1988
The Rent Act 1977 had provided that a tenancy was not to be taken to be a protected tenancy of a dwelling house: ‘bona fide let at a rent which includes payments in respect of board or attendance’
Held: Where a landlord provided a continental . .
Cited – Phillips v Mobil Oil 1989
. .
Lists of cited by and citing cases may be incomplete.

Land, Local Government

Updated: 03 November 2022; Ref: scu.79487

Sargaison v Roberts: ChD 1969

The court was asked as to a taxpayer’s entitlement to tax allowances under section 314 of the 1952 Act, and whether, for the purposes of the legislation, a transfer by the taxpayer into trust of a farm and the simultaneous grant by the trustees to him of a lease resulted in the whole of the taxpayer’s interest in the land being transferred to another person (which would have disentitled him to his tax allowance) or operated to reduce his interest from ownership of a freehold to ownership of a lease.
Held: Megarry J took the latter view. He said that the taxpayer’s interest had uno ictu merely been reduced from ownership of the freehold to ownership of a lease. The effect of the transaction was that the taxpayer’s interest had been reduced from ownership of the freehold to ownership of a lease.

Judges:

Megarry J

Citations:

[1969] 3 All ER 1072, [1969] 1 WLR 951

Statutes:

Income Tax Act 1952 314

Jurisdiction:

England and Wales

Cited by:

Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Land

Updated: 03 November 2022; Ref: scu.450473

Pittack v Naviede: ChD 24 Jun 2010

Question of construction on the Standard Conditions of Sale (4th edition), namely whether a clause excluding the transfer of the benefit of the contract operates to exclude sub-sales.

Judges:

Mark Herbert QC

Citations:

[2010] EWHC 1509 (Ch), [2010] 26 EG 91 (CS), [2011] 1 WLR 1666, [2010] 43 EG 100

Links:

Bailii

Jurisdiction:

England and Wales

Land, Contract

Updated: 01 November 2022; Ref: scu.423808

Regina (Hargrave and Another) v Stroud District Council: Admn 7 Dec 2001

When someone objected to a public footpath order, the council has a discretion as to whether the case should be referred to the Secretary of State. In the absence of an obligation, the judicial review of the council’s decision not to make such a reference failed. The existence of the discretion was not inconsistent with the Human Rights Act 1998, had not been exercised irrationally.

Judges:

Michael Supperstone, QC

Citations:

Times 19-Dec-2001, [2001] EWHC Admin 1128

Links:

Bailii

Statutes:

Highways Act 1980 119(1)

Jurisdiction:

England and Wales

Citing:

Appealed to – Regina (Hargrave and Another) v Stroud District Council CA 22-Jul-2002
The applicants had sought to vary a footpath to move it further away from their house. The parish council objected. The council had decided that it would be expedient under the Act to divert it, but went on to decide against a diversion and against . .

Cited by:

Appeal from – Regina (Hargrave and Another) v Stroud District Council CA 22-Jul-2002
The applicants had sought to vary a footpath to move it further away from their house. The parish council objected. The council had decided that it would be expedient under the Act to divert it, but went on to decide against a diversion and against . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 November 2022; Ref: scu.167108

State of India v Sood and Others: CA 30 Oct 1996

Beneficial equitable interests in land were overreached by a mortgage despite no the fact that no capital was actually advanced under the charge.

Citations:

Gazette 13-Nov-1996, Times 07-Nov-1996, [1996] EWCA Civ 835

Statutes:

Law of Property Act 1925 2(1)(ii)

Jurisdiction:

England and Wales

Citing:

Cited – Williams and Glyn’s Bank Ltd v Boland CA 1979
Money was raised on mortgage of registered land and paid to a single trustee holding the land on trust for sale, and it was held that the rights of beneficiaries who were in occupation and of whom no enquiries had been made were not mere minor . .
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: 01 November 2022; Ref: scu.140702

Cheltenham and Gloucester Building Society v Krausz: CA 22 Oct 1996

The County court may not suspend a possession order pending an application to the High Court for an order for sale. The court considered the protection given by s15(1) of the 1970 Act, and found the protection to be limited, but nevertheless of considerable value to mortgagors who are in default.

Citations:

Gazette 20-Nov-1996, Times 20-Nov-1996, [1996] EWCA Civ 780, [1997] 1 WLR 1558, (1997) 29 HLR 597

Links:

Bailii

Statutes:

Law of Property Act 1925 91(2), Administration of Justice Act 1970 15(1)

Jurisdiction:

England and Wales

Cited by:

Cited – 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: 01 November 2022; Ref: scu.140647

Giles v Tarry and Another: CA 21 Jun 2012

Citations:

[2012] EWCA Civ 837

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – 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: 01 November 2022; Ref: scu.460566

Taylor v Couch: ChD 1 Mar 2012

The case raised the question of law involving the application of the rule against perpetuities to what, on the claimant’s case, is a right of pre-emption created before the coming into force in 2010 of the Perpetuities and Accumulations Act 2009.’
Held: The right purportedly exercised by the letter had become void for remoteness, and the claim failed. A right of pre-emption is to be treated differently from an option, but that is because a right of pre-emption does not arise independently of the volition of the grantor of the right. A conditional contract is to be distinguished from an option in the sense that a conditional contract will automatically become binding on the occurrence of the contingency in question whereas, even if an option is contingent upon a certain event, it will not automatically become binding independently of the volition of the grantee. It seems to me that there are distinctions between a right of pre-emption, an option, and a conditional contract. An option, provided that it can be triggered independently of the volition of the grantor, may, in addition to the volition of the grantee, be conditional upon external events and yet still remain an option.

Judges:

Hodge QC HHJ

Citations:

[2012] EWHC 1213 (Ch)

Links:

Bailii

Statutes:

Perpetuities and Accumulations Act 2009, Perpetuities and Accumulations Act 1964 9

Jurisdiction:

England and Wales

Citing:

Cited – Pritchard v Briggs CA 1980
A conveyance of part in 1944 gave a right of pre-emption over retained land. The vendor’s successors the let the retained land to the plaintiff with an option to buy the freehold reversion. The retained land was sold to the defendants in purported . .
Cited – Wilson v Truelove ChD 25-Mar-2003
The claimants requested a declaration that an option to repurchase land was void under the 1964 Act.
Held: The option to repurchase land was prima facie void. The right arose on the coming into existence of the agreement, or at the latest on . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 01 November 2022; Ref: scu.460460

Morton Whitecross Ltd v Falkirk Council: SCS 8 Jun 2012

The pursuers sought to connect their proposed residential development estate to the public highway. The Council asserted the existence of a strip of land which it owned and would have to be purchased from them to connect the estate to the highway.
Held: The issues was in essence one of fact as to the extent of land dedicated as a public highway on the construction of the road.

Citations:

[2012] ScotCS CSOH – 97

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 01 November 2022; Ref: scu.460292

Parkhill v The Environment Agency: UTLC 3 May 2012

UTLC COMPENSATION – Water – flood defence scheme – interference with mooring – when works completed – business loss – lack of proof and quantification – Water Resources Act 1991 – Sch 21 – para 5(1)

Judges:

Mole QC J

Citations:

[2012] UKUT 23 (LC)

Links:

Bailii

Statutes:

Water Resources Act 1991

Jurisdiction:

England and Wales

Land

Updated: 01 November 2022; Ref: scu.460260

Free Grammar School of John Lyon v City of Westminster Council: UTLC 3 May 2012

UTLC COMPENSATION – tree preservation order – cracks appearing in house – refusal of consent to fell robinia in adjoining garden – claim for costs of underpinning works – the basis for determining causation and foreseeability – whether need for underpinning caused by robinia – whether loss or damage reasonably foreseeable when consent refused – whether reasonable steps taken to mitigate loss or damage – whether interest payable on compensation moneys and if so on what basis – Town and Country Planning Act 1990, s203

Citations:

[2012] UKUT 117 (LC)

Links:

Bailii

Statutes:

Town and Country Planning Act 1990 203

Jurisdiction:

England and Wales

Land, Planning

Updated: 01 November 2022; Ref: scu.460256

Williams and Another v Sandy Lane (Chester) Ltd: CA 15 Dec 2006

The servient owner granted a lease of his land without first seeking to prevent use of the right of way by the dominant owner.
Held: The servient owner could not now rely on the fact of the lease to say that he had been disabled from preventing the continued acquisition of the right of way by prescription. The crucial question was the date of the knowledge of of the servient land owner of the potential acquisition of the right by the dominant owner. If he knew of the use vefore granting the tenancy, he could not complain.

Judges:

Lord Justice Chadwick, Lord Justice Wilson and Mr Justice Lindsay

Citations:

[2006] EWCA Civ 1738, Times 05-Jan-2007, [2007] 1 EGLR 10

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Llewellyn and Another v Lorey and Another CA 3-Feb-2011
The parties disputed whether a right of way was exerciseable for commercial as well as private purposes.
Held: The judge had made a finding as to use which was not supported by the evidence before him. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 October 2022; Ref: scu.247403

Turkey v Awadh and Another: CA 8 Mar 2005

Citations:

[2005] EWCA Civ 382, [2005] 2 P and CR 29

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Khalid Ali Ismail Turkey v Adnan Mohammed Awadh, Aziza Khalid Ali Ismail Turki CA 26-Oct-2004
The claimant asserted that he had taken a transfer of the house from his daughter and son in law. They said the transfer had been procured by misrepresentation and undue influence. The claimant now sought a stay of an order for payment of costs . .

Cited by:

Cited – Thompson v Foy ChD 20-May-2009
Lewison J discussed the decision in Etridge: ‘In the light of the arguments before me, there are some additional observations I should make. First, although in Etridge Lord Nicholls of Birkenhead described the paradigm case of a relationship where . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 31 October 2022; Ref: scu.224250

Wong v Beaumont Property Trust Ltd: CA 12 Mar 1964

A basement had been let to the plaintiff for use as a Chinese restaurant. The lease required the tenant to use the property as a restaurant, but also to control all smells. To do that it was necessary for the plaintiff to install a proper system for taking away the smells, which would have to go through the landlord’s property.
Held: The County Court had jurisdiction to hear such a claim on the basis assumed that the rateable value of each property was within the limits. An easement of necessity had been shown under the rule in Pwllbach.

Judges:

Lord Denning MR, Pearson LJ, Salmon LJ

Citations:

[1965] 1 QB 173, [1964] 2 WLR 1325, [1964] 2 All ER 119, (1964) 108 SJ 237, [1964] EWCA Civ 4

Links:

Bailii

Statutes:

Food Hygiene (General) Regulations 1960 (SI 1960 601), County Court (Jurisdiction) Act 1963 1, County Courts Act 1959 51

Jurisdiction:

England and Wales

Citing:

Applied – Pwllbach Colliery Co v Woodman HL 1915
Whether an easement may be created by implication depends on the circumstances under which it is said to have been made. The law implies a grant of such easements as may be necessary to give effect to the common intention of the parties to a grant . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 31 October 2022; Ref: scu.223975

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 policy toward the land had changed in 2000. It was a decision of a specialist body, and therefore the court could interfere only on limited grounds. The defendant had not taken into account immaterial matters, and the claimants had not ever explained how the defendants could have reached any other decision in the light of the material placed before them. The judge had criticised the claimants for not challenging the policy at first, but that was wrong. The claimants would then have been told their action was premature. The power in the defendant not to confirm an order would have to be exercised in the light of a genuine open-minded consultation and investigation. It had been so exercised. The decision did not infringe the clamants’ human rights.

Judges:

Lord Justice Auld, Mr Justice Pumfrey, Lord Justice Wall

Citations:

[2004] EWCA Civ 663, Times 04-Jun-2004, [2005] 1 WLR 147, [2004] 4 All ER 861

Links:

Bailii

Statutes:

Wildlife and Countryside Act 1981 52, The Conservation (Natural Habitats &c) Regulations 1994 (SI 1194/2716)

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .
Cited – Aggregate Industries UK Ltd, Regina (on the Application Of) v English Nature and and Another Admn 24-Apr-2002
The claimant challenged English Nature’s confirmation of a notice that their land was a site of special scientific interest. The land comprised some 600 acres in Hampshire which had planning permission for mineral extraction known as ‘Bramshill’. . .
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Lists of cited by and citing cases may be incomplete.

Land, Environment

Updated: 31 October 2022; Ref: scu.197943

Kupfer Kupfer v Dunne: CA 7 Nov 2003

Neighbours disputed the exact boundary between their houses. An extension and fence had been built. The judge had declared the boundary, and ordered the removal of fence posts.
Held: Such a dispute should be resolved by reference to indications on the land rather than principally by reliance upon the impression given by the parties. It had been wrong to interpret a boundary line as bent rather than straight where there was no evidence to support such a conclusion. The appeal succeeded.

Judges:

Lord Justice Clarke Lord Justice Pill Lord Justice Rix

Citations:

[2003] EWCA Civ 1549

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Alan Wibberley Building Ltd v Insley HL 24-Mar-1999
The parties disputed ownership of a strip of land between a garden and a farm. The land was registered. There was a hedge and a ditch along the disputed boundary, it had been conceded in the Court of Appeal that a conveyance of land on the hedge . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 October 2022; Ref: scu.187700

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 is no trivial matter for a landowner to have land, whether in public or private ownership, registered as a town green . .’ The meaning of the expression that land ‘becomes’ a Green is that the land ‘becomes registrable’ as a Green.

Judges:

Pill J

Citations:

Times 02-Aug-1996, (1996) 75 P and CR 102

Statutes:

Commons Registration Act 1965 1(2)(a) 22, Commons Registration (Time Limits) Order 1996 (SI 1966/1470)

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 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: . .
Explained – 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 – 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. . .
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 . .
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 . .
Applied – Regina v Oxfordshire County Council ex parte Sunningwell Parish Council Admn 11-Jul-1996
The Parish Council sought judicial review of the county council’s decision to reject a regristation of land as a Common on the ground that the user of the land by the villagers had not been shown to be ‘as of right.’
Held: Leave to bring the . .
Applied – Regina v Oxfordshire County Council ex parte Sunningwell Parish Council CA 24-Nov-1997
The Parish Council appealed against refusal of leave to seek judicial review of a decision to reject an application for certain land to be registered as a common. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 October 2022; Ref: scu.88684

Barkas, Regina (on The Application of) v North Yorkshire County Council and Scarborough Council: Admn 20 Dec 2011

The claimants sought to have registered as a town or village green land in Whitby which had been provided as a playing field by the Local Authority since 1934. The inspector had found that the use had not been ‘as of right’ as required by the 2006 Act. The field, which he said: ‘has all the appearance of a typical municipal recreation ground’ had been acquired by the Council’ predecessor in 1951 under section 73 of the Housing Act 1936 as a site for the erection of houses for the working classes.
Held: The claim failed. The council were clearly entitled to reach the conclusion that the use by the public was implicitly approved by the corporation; indeed there was no reason to infer anything else.

Judges:

Langstaff J

Citations:

[2011] EWHC 3653 (Admin)

Links:

Bailii

Statutes:

Commons Act 2006 15, Housing Act 193673

Jurisdiction:

England and Wales

Citing:

Cited – HE Green and Sons v Minister of Health (No 2) 1947
The plaintiff challenged a compulsory purchase order, saying that the purpose of the order went beyond the statutory purpose.
Held: The provision of ‘houses’ must be taken to include the provision of ancillary facilities. Denning J said that . .
Cited – HE Green and Sons v Minister of Health (No 2) 1948
On an application under the 1936 Ac, provided that the field benefited council tenants (which it clearly did) it did not matter that it also benefited other people within the local community.
Denning J said: ‘The next question is whether the . .
Not to be relied on – 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 by:

Appeal from – Barkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
At Admin – 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: 31 October 2022; Ref: scu.459728

Stadium Capital Holdings (No2) Ltd v St Marylebone Property Company and Another: ChD 8 Nov 2011

The parties continued their dispute over a hoarding attached to a building of one party which was said to intrude on the land of the other. Damages had been awarded of the full amount of license fees received for the board from advertisers.

Judges:

Vos J

Citations:

[2011] EWHC 2856 (Ch), [2012] 1 P andCR 7, [2012] 4 EG 108

Links:

Bailii

Jurisdiction:

England and Wales

Land, Damages, Torts – Other

Updated: 31 October 2022; Ref: scu.459702

Drewell v Towler: 4 Jun 1832

In trespass for cutting lines of the plaintiff and throwing down linen thereon hanging ; defendant pleaded, that he was possessed of a close, and because the linen was wrongfully in and upon the close he removed it. Replication, that J. G. being seised in fee of the close and of a messuage with the appurtenances contiguous to it, by lease and release conveyed to W. H., the messuage and all the easements, liberties, privileges, and co. to the said messuage belonging, or therewith then or late used, and co. ; that before and at the time of such conveyance, the tenants and occupiers of the messuage used the easement, and co. of fastening ropes to the said messuage, and across the close, to a wall in the said close, in order to hang linen thereon, and of hanging linen thereon to dry, as often as they had occasion so to do, at their free will and pleasure, and that the plaintiff being tenant to W, H. of the said messuage, did put up the lines, and co. Rejoinder took issue on the right as alleged in the replication : Held, that proof of a privilege for the tenants to hang lines across the yard, for the purpose of drying the linen of their own families only, did not support the alleged right.

Citations:

[1832] EngR 642, (1832) 3 B and Ad 735, (1832) 110 ER 268

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Bradley and Another v Heslin and Another ChD 9-Oct-2014
The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 October 2022; Ref: scu.319589

Ford-Camber Ltd v Deanminster Ltd and Another: CA 24 May 2007

The parties disputed the compensation for the diversion of a right of way. The right was over a service road connecting the land with the highway. If the land was acquired by the development authority under section 104, and was carried out by a person claiming title under them, then they would have the right to divert the road.

Citations:

[2007] EWCA Civ 458

Links:

Bailii

Statutes:

Community Land Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Greenwich Healthcare National Health Service Trust v London and Quadrant Housing Trust and Others ChD 11-Jun-1998
The plaintiff had acquired land to build a hospital, which would require re-alignment of a link road, over which the defendants had rights of way. The land was also subject to a restrictive covenant in favour of the defendants. The defendants did . .
Cited – Regina v Hull University Visitor, Ex parte Page; Regina v Lord President of the Privy Council ex Parte Page HL 3-Dec-1992
The decisions of University Visitors are subject to judicial review in that they exercise a public function. English law no longer draws a distinction between jurisdictional errors of law and non-jurisdictional errors of law.
However, the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 October 2022; Ref: scu.252524

Dean v Walker: CA 10 May 1996

The appellant sought to challenge an order granting his neighbour access across his land in order to maintain a gable end wall.
Held: The judge was plainly correct to make the order. The appellant’s fear that this would prejudice any future issues was unfounded.

Citations:

[1996] EWCA Civ 505

Statutes:

Access to Neighbouring Land Act 1992

Jurisdiction:

England and Wales

Citing:

Cited – Knight v Pursel 1879
A wall could be a party wall in part and belong in another part to one of the joint owners separately. . .
Cited – Cubitt v Porter 1828
A question arose as to the user of a wall separating adjoining lands belonging to different owners. It was held that common user is prima facie evidence that the wall and the land on which it stands belongs to the owners of those adjoining lands in . .
Cited – Richards v Rose 1853
A dispute had arisen as to the ownership of a wall between two houses: ‘… it seems very clear that, where a number of houses are built upon a spot of ground, all belonging to the same person, being all built together, and obviously requiring the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 October 2022; Ref: scu.140372

Botham and others v TSB Bank Plc: CA 30 Jul 1996

A flat had been repossessed by the bank. The parties disputed whether items were fixtures and charged with the land or not.
Held: The judge had correctly analysed and applied the law of fixtures and fittings. The appeal failed save to a limited extent. ‘The tests, in the case of an item which has been attached to the building in some way other than simply by its own weight, seem to be the purpose of the item and the purpose of the link between the item and the building. If the item viewed objectively, is, intended to be permanent and to afford a lasting improvement to the building, the thing will have become a fixture. If the attachment is temporary and is no more than is necessary for the item to be used and enjoyed, then it will remain a chattel. Some indicators can be identified. For example, if the item is ornamental and the attachment is simply to enable the item to be displayed and enjoyed as an adornment that will often indicate that this item is a chattel. Obvious examples are pictures. But this will not be the result in every case; for example ornamental tiles on the walls of kitchens and bathrooms. The ability to remove an item or its attachment from the building without damaging the fabric of the building is another indicator. The same item may in some areas be a chattel and in others a fixture. For example a cooker will, if free standing and connected to the building only by an electric flex, be a chattel But it may be otherwise if the cooker is a split level cooker with the hob set into a work surface and the oven forming part of one of the cabinets in the kitchen. ‘ As to fitted carpets attached by grippers, they were not fixtures, and nor were white goods in the kitchen. Though part of a decoraive scheme of they wre not sufficiently attached.
Sir Richard Scott VC: There is, I think, some danger in applying too literally tests formulated for the purpose of decisions regarding machinery in factories to cases regarding articles in residences. There is a danger, also, in applying too literally tests formulated for the purpose of decisions regarding articles of ornamental value only to cases regarding articles whose prime function is utilitarian.

Judges:

Sir Richard Scott VC, Roch LJ, Henry LJ

Citations:

[1996] EWCA Civ 549

Jurisdiction:

England and Wales

Citing:

Cited – Berkely v Poulett CA 1977
The court discussed the duties of a vendor to the property between exchange and completion: ‘These duties and rights [of a purchaser] arise from the contract of sale and it is because of their existence that the vendor is said to be a constructive . .
Cited – Holland v Hodgson 1872
(Court of Exchequer Chamber) Blackburn J set out what constituted a fixture: ‘There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with . .
Cited – Leigh v Taylor HL 6-Feb-2002
Valuable tapestries had been set up for display in a room in a stately home . They were first stretched over canvas and then tacked to the canvas. That canvas was then stretched over strips of wood and nailed to those strips of wood which in turn . .
Not followed – Young v Dalgety plc CA 1987
A decision had been made at first instance that fitted carpets were fixtures rather than fittings.
Held: The deision was not disturbed. . .
Cited – British Economical Lamp Company (Ltd) v Empire Mile End (Ltd) and another 18-Apr-1913
Light fittings were not shown by the evidence to be part of the electrical installation in a flat, and therefore were not fixtures but fittings. . .
Cited – Hellawell v Eastwood 1851
In considering whether an article was a fitting and could be removed from its locaion, the court looked to the mode and extent of annexation of the articles: ‘The only question, therefore, is, whether the machines when fixed were parcel of the . .
Cited – Melluish (Inspector of Taxes) v BMI (No 3) Ltd and Related Appeals HL 16-Oct-1995
Chattels which became affixed to a lessee’s land became fixtures, and were not available for tax allowances calculations. Lord Browne-Wilkinson said: ‘The terms expressly or implicitly agreed between the fixer of the chattel and the owner of the . .
Lists of cited by and citing cases may be incomplete.

Land, Banking

Updated: 31 October 2022; Ref: scu.140416

Porter and Another v Secretary of State for Transport: CA 3 Jun 1996

No issue estoppel on land value arose from a previous Secretary’s finding on Lands Tribunal.

Citations:

Times 03-Jun-1996, [1996] 3 All ER 693

Statutes:

Land Compensation Act 1961 18

Jurisdiction:

England and Wales

Cited by:

Cited – Forrester v The Secretary Of State For The Environment And South Buckinghamshire District Council Admn 14-Mar-1997
The applicant appealed dismissal of his appeal against a planning enforcement notice issued by the respondent. He said the change had taken place more than ten years before the notice and so was immune to enforcement proceedings. An earlier decision . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 October 2022; Ref: scu.84803

Norfolk Homes Ltd v North Norfolk District Council and Another: QBD 5 Mar 2020

Norfolk Homes applied for summary judgment of its claim for a declaration that residential development of land in Holt, Norfolk was not bound by obligations contained in an agreement made pursuant to section 106 Town and Country Planning Act 1990

Judges:

The Hon. Mrs Justice Thornton

Citations:

[2020] EWHC 504 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Planning, Land

Updated: 31 October 2022; Ref: scu.648931

Payne v Inwood: CA 1996

A claim for an easement based upon section 62 of the 1925 Act failed. There had not been regular use of the path in question with the putative dominant tenement to gain access to it. Roch LJ said: ‘Section 62 of the 1925 Act cannot create new rights where there has been no actual enjoyment of a facility, call it a liberty, privilege, advantage, easement or quasi-easement, by the owner or occupier of the dominant tenement over the servient tenement. If there is a quasi-easement, in that there is evidence of user or a physical state of affairs which indicates the existence of a quasi-easement, then section 62 can operate to convert that into an easement.’

Judges:

Roch LJ

Citations:

(1996) 74 P and CR 42

Statutes:

Law of Property Act 1925 62

Jurisdiction:

England and Wales

Citing:

Cited – 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 – Campbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 27 October 2022; Ref: scu.429652

Clarke v London Borough of Newham: LT 25 Sep 2008

LT COMPENSATION – compulsory purchase – abandoned house in state of disrepair – untraceable owner – cost of repair and refurbishment – valuation – comparable transactions – Housing Act 1985 section 17 and Land Compensation Act 1961 Part 1 – compensation determined at andpound;185,000.

Citations:

[2008] EWLands ACQ – 304 – 2008

Links:

Bailii

Statutes:

Land Compensation Act 1961, Housing Act 1985 17

Jurisdiction:

England and Wales

Land, Damages

Updated: 27 October 2022; Ref: scu.278625

Moreland, Curits, Hanks, Broadwood And Neate v The Reverend Richardson Since Dismissed, William Harmer Since Dismissed, John Harmer (Since Dismissed), Benjamin Laimbeer etc: 5 Jun 1857

The mortgagee of a burial-ground has notice of the purposes to which it is devoted and is bound by rights of burial, temporary or in perpetuity, granted by his mortgagor, while left in possession.

Citations:

[1857] EngR 611, (1857) 24 Beav 33, (1857) 53 ER 269

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 27 October 2022; Ref: scu.290357

Northern Bank Ltd v Mckinstry and Another: ChNI 22 Mar 2001

Whether a bank’s ‘all monies mortgage’ gives the bank a security over the premises subject to the mortgage in respect of monies due under a regulated consumer credit agreement governed by the Consumer Credit Act 1974 which is not in itself a secured debt but breach of which has led the bank to obtain a judgment for the debt due under the agreement.

Citations:

[2001] NICh 6

Links:

Bailii

Statutes:

Consumer Credit Act 1974

Jurisdiction:

Northern Ireland

Consumer, Land, Banking

Updated: 27 October 2022; Ref: scu.202030

Giles v County Building Constructors (Hertford) Limited: ChD 1971

A right of way had arisen by prescription in favour of land which had two detached dwelling houses on it.
Held: The right of way could continue to be used, even after the two houses had been demolished and replaced by a three-storey block of six flats, a bungalow, a house and eight garages, a redevelopment which also involved constructing a roadway on the dominant land so that traffic could pass over it, rather than merely up to it. Rather than involving a change of identity or a radical change of character, the development was ‘evolution rather than mutation’. ‘To some extent, of course, the matter must be one of degree, because I quite see that the erection of a skyscraper block of flats upon the [dominant property] might well be said to cause a radical change in the character of the dominant tenement which alters its identity. But that is not what is proposed here.’
Brightman J set out two presumptions of law applying to the soil of a roadway: ‘As I understand the law, there are two presumptions relative to the ownership of the soil of a roadway. One presumption operates in certain circumstances when the conveyancing history of the land and the road is unknown. This presumption supplies a fact of which there is no direct evidence, namely, the ownership of the road. The presumption is that the owner of the land abutting on the road is also the owner of the adjoining section of road up to the middle line, There is no room for this presumption when the conveyancing history of the land and the road is known from the time when they were in common ownership as in the case before me. In such a case, there is, in certain circumstances, a totally different presumption which is more in the nature of a canon of construction that a conveyance of the land includes half the adjacent roadway. The distinction between the two presumptions, if the second one can properly be called a presumption, is clearly drawn by Joyce J. in Mappin Brothers v Liberty and Co Ltd [1903] 1 Ch 118. I need not refer to that case because Mr. Jopling, in his able argument, accepted the distinction and told me that he based his submission only on the second presumption, as indeed I am sure he must. Mr. Jopling relied on Norton on Deeds, 2nd ed. (1928), p. 252, for a correct statement of the nature of the second presumption.
A conveyance of land abutting on a highway, or a non-tidal river, passes the adjoining half of the highway, or of the river bed.
The presumption may be rebutted, but it is not rebutted (i) by the land being described as containing an area which can be satisfied without including half the road or river bed; (ii) by the land being described as bounded by the road or river bed; (iii) by the land being referred to as coloured on a plan, whereon the half of the road or river bed is not coloured; (iv) by the grantor being owner of the land on both sides of the road or river; or (v) because subsequent events not contemplated at the time of the grant show it to have been very disadvantageous to the grantor to have parted with the half of the road or river bed, but which if contemplated would probably have induced him to reserve it.
It is a well-settled rule of construction that, where there is a conveyance of land, even although it is described by reference to a plan, and by colour, and by quantity, if it is said to be bounded on one side by a public thoroughfare, then half of the road passes unless there is enough in the expressions of the instrument or in the surrounding circumstances to show that this is not the intention of the parties’: per Swinfen Eady J., Central London Railway v City of London Land Tax Commissioners [1911] 1 Ch 467, 474.’

Judges:

Brightman J

Citations:

(1971) 22 PandCR 978

Jurisdiction:

England and Wales

Citing:

Cited – Wimbledon and Putney Commons Conservators v Dixon CA 1875
A prescriptive right of way had been enjoyed in connection with the use of the dominant land for agricultural purposes, which had included enlarging the farmhouse and rebuilding a cottage. The dominant owner could not use the way for carting . .
Cited – British Railways Board v Glass CA 1965
An easement arising by prescription involves a fictional lost grant. The court considered the extent of user of an easement in relation to a prescriptive right of way for the benefit of land used as a caravan site: ‘A right to use a way for this . .

Cited by:

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 – Paton and Another v Todd ChD 11-May-2012
The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to land which was registered to the respondent neighbour.
Held: The claimant’s . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 27 October 2022; Ref: scu.194017

Milner’s Safe Company Limited v Great Northern and City Railway Company: ChD 1907

A right of way had been impliedly granted in favour of a number of terraced houses over a passage running to the back of those houses, which were used at the time of grant for residential and warehouse use. A right to use the passageway for an underground railway station was sought.
Held: The court pointed to a significant difference the use as a station of the dominant land would have on the consequent use of the passage: ‘a large number of travellers’ wished to use the passage ‘especially in the morning and again in the evening . . must necessarily impede the work of [other dominant owners] in loading and unloading their vans’. The defendants had ‘made it impossible that the passage shall be used for the purpose for which it was designed’. ‘[A] railway station is not merely in its construction, but in its mode of occupation, something entirely different from any dwelling house, warehouse or even manufactory, which could have been erected on the land.’

Judges:

Kekewich J

Citations:

[1907] 1 Ch 208

Jurisdiction:

England and Wales

Citing:

Applied – Wimbledon and Putney Commons Conservators v Dixon CA 1875
A prescriptive right of way had been enjoyed in connection with the use of the dominant land for agricultural purposes, which had included enlarging the farmhouse and rebuilding a cottage. The dominant owner could not use the way for carting . .

Cited by:

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, . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 27 October 2022; Ref: scu.194015

Roberts and Another v South Gloucestershire Council: CA 7 Nov 2002

The landowner appealed against the compensation awarded for the compulsory acquisition of his land for use as a road. The owners had been compensated only for its agricultural value, but said that it should have allowed for its value for minerals extraction.
Held: The appeal failed. Carnwath LJ said: ‘The planning assumptions in the 1961 Act are intended to facilitate the task at arriving at fair compensation. With or without permission for a road, the claimant had no expectation in the real world of realising the value of his minerals in the foreseeable future, for the reasons set out in the decision on the section 17 application, and there is no reason for him to be compensated for its loss.’

Judges:

Carnwath LJ, Potter LJ

Citations:

[2002] EWCA Civ 1568, [2003] 18 EG 114, [2003] RVR 43, [2003] P and CR 411

Links:

Bailii

Statutes:

Land Compensation Act 1961 5(4) 39(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – C F and M G Roberts v South Gloucestershire District Council LT 31-Dec-1994
LT COMPENSATION – Compulsory purchase of land for the construction of a road – value – assumed planning permission – value of minerals – planning permission for a commercial minerals operation not granted or to . .
Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Cited – Wilson v Liverpool Corporation CA 1971
The claimants owned 74 acres of an area of 391 acres in Liverpool which the Corporation wanted to acquire for residential development. The authority acquired the land by agreement and made a compulsory purchase order in respect of the remainder.
Cited – Myers v Milton Keynes Development Corporation CA 1974
Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the ‘scheme’ meant that the . .
Cited – Northavon District Council v Secretary of State 1980
The introduction onto land of waste material can be either a change of use or an operation, depending on whether the purpose is to get rid of the material or to alter the character of the land. . .
Cited – Regina (On the Application of Lowther) v Durham County Council and Another CA 24-May-2001
The landowner sought to alter the fuel it used in a furnace at Thrislington, Durham, to a fuel which was constituted from waste. The council received a second opinion to the effect that the new fuel did not constitute a change in use. The objector . .
Cited – Hoare and Another v National Trust CA 13-Oct-1998
The rating hypothesis must be interpreted to allow for the actual policies of the tenant. Where the tenant would not overbid despite the finding that properties of this type could not be managed to produce a profit. Nil rating was appropriate. Peter . .
Cited – Trocette Property Co Ltd v Greater London Council CA 1974
Lawton LJ considered the scheme of compensation under the 1961 Act and said: ‘The assessment of compensation in cases such as this is a most difficult task calling for the judicial use of fertile imagination. Assumptions have to be made (see ss 14, . .
Cited – Hoare and Another v National Trust CA 13-Oct-1998
The rating hypothesis must be interpreted to allow for the actual policies of the tenant. Where the tenant would not overbid despite the finding that properties of this type could not be managed to produce a profit. Nil rating was appropriate. Peter . .
Cited – Copeland Borough Council v Secretary of State for the Environment 1976
An enforcement notice was served relating to a dwelling house which had been built with a roof covering of the wrong colour. The authority had described the breach of planning control by reference to the construction of the roof, rather than the . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 27 October 2022; Ref: scu.178111

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 and incomplete information.
The court considered the function of a gate: ‘The function of a gate is different from that of a fence. A gate is intended to prevent ingress and egress only when it is shut. It is of the essence of a gate that it can be opened whereas a fence cannot be opened and . . the covenant to fence does not refer to a gate.’ (Peter Gibson LJ)
Staughton LJ considered the significance of planing permissions as to nuisance: ‘One can readily appreciate that planning permission will, quite frequently, have unpleasant consequences for some people. The man with a view over open fields from his window may well be displeased if a housing estate is authorised by the planners and built in front of his house; the character of the neighbourhood is changed. But there may be nothing which would qualify as a nuisance and no infringement of his civil rights. What if the development does inevitably create what would otherwise be a nuisance? Instead of a housing estate the planners may authorise a factory which would emit noise and smoke to the detriment of neighbouring residents. Does that come within the first proposition of Cumming-Bruce LJ, that a planning authority has no jurisdiction to authorise a nuisance? Or is it within the second, that the authority may change the character of a neighbourhood?’ and
‘It would in my opinion be a misuse of language to describe what has happened in the present case as a change in the character of a neighbourhood. It is a change of use of a very small piece of land, a little over 350 square metres according to the dimensions on the plan, for the benefit of the applicant and to the detriment of the objectors in the quiet enjoyment of their house. It is not a strategic planning decision affected by considerations of public interest. Unless one is prepared to accept that any planning decision authorises any nuisance which must inevitably come from it, the argument that the nuisance was authorised by planning permission in this case must fail. I am not prepared to accept that premise. It may be – I express no concluded opinion – that some planning decisions will authorise some nuisances. But that is as far as I am prepared to go.’

Judges:

Staughton LJ, Peter Gibson LJ

Citations:

Times 03-Jan-1995, [1996] Ch 19, [1994] EWCA Civ 8, [1994] EWCA Civ 32, [1995] 3 WLR 466, [1995] 2 All ER 697

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Westminster City Council v Great Portland Estates plc HL 31-Oct-1984
The House was asked whether the 1971 Act permitted the relevant authorities, by resort to their development plans, to support the retention of traditional industries or was the ambit of the Act such as to permit only ‘land use’ aims to be pursued? . .
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 by:

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 – Adam v Shrewsbury, Shrewsbury CA 28-Jul-2005
The neighbour parties disputed the existence of a right of way over one plot. The grant was for the use of a garage yet to be constructed, on ground to be excavated by the grantor, accessible only from a roadway which was only partly constructed, at . .
Cited – Watson and others v Croft Promo-Sport Ltd CA 26-Jan-2009
The claimants were neighbours of the Croft motor racing circuit. They alleged nuisance in the levels of noise emanating from the site. The defendants denied nuisance saying that the interference was deemed reasonable since they operated within the . .
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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Planning, Land, Nuisance

Updated: 27 October 2022; Ref: scu.90439

Duke of Westminster and Others v Birrane: CA 17 Nov 1994

A basement extending under the house next door means that the property with the basement is not a not a dwelling-house for leasehold enfranchisement purposes. The result would create difficulties with flying freeholds. ‘The primary purpose of section 2(2) must have been to exclude from the operation of the Act houses in respect of which the inability of one freehold owner to enforce positive obligations against successors in title of the other would be likely to prejudice the enjoyment of the house or another part of the structure.’ and the test of materiality under section 2 was to be assessed on the basis that ‘if the part of the house which lies above or below a part of the structure not comprised in it is of sufficient substance or significance to make it likely that enfranchisement will prejudice the enjoyment of the house or another part of the structure, whether by reason of the inability of one freehold owner to enforce positive obligations against successors in title of the other or otherwise, then it is a material part of the house within section 2(2).’

Judges:

Nourse LJ

Citations:

Gazette 18-Jan-1995, Times 17-Nov-1994, Ind Summary 19-Dec-1994, [1995] QB 262

Statutes:

Leasehold Reform Act 1967 1(1) 2(1) 2(2)

Jurisdiction:

England and Wales

Cited by:

Overruled – Malekshad v Howard de Walden Estates Limited HL 5-Dec-2002
A house and an adjoining building had been first demised under one lease, then separated vertically. Two separate residential properties now existed.
Held: The vertical division meant that the two houses could not be enfranchised as one under . .
Cited – Malekshad v Howard De Walden Estates Limited CA 23-May-2001
The applicant sought the leasehold enfranchisement of two leasehold properties. They were contained in separate leases, but the property had been treated as one for some time. A part of one property extended under part of the other. The claim was . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Land

Updated: 27 October 2022; Ref: scu.80163

Cheltenham and Gloucester Building Society Plc v Norgan: CA 5 Dec 1995

The starting point for assessing the period of time over which a court should order the repayment of arrears under a mortgage, when considering the need for a possession order, is the remaining balance of mortgage term.

Judges:

Evans, Waite LJJ, Sir John May

Citations:

Gazette 17-Jan-1996, Independent 14-Dec-1995, Times 08-Dec-1995, [1995] EWCA Civ 11, [1996] 1 WLR 343, [1996] 1 All ER 449, (1996) 28 HLR 443

Links:

Bailii

Statutes:

Administration of Justice Act 1970 30, Administration of Justice Act 1973 8

Jurisdiction:

England and Wales

Consumer, Housing, Land

Updated: 27 October 2022; Ref: scu.79006

Great North of Scotland Railway Co v Duke of Fife: HL 12 Mar 1900

By the terms of a decreet-arbitral proceeding on a statutory submission between a railway company and the proprietor of lands taken for the construction of the railway, the company were taken bound to pay a certain sum as purchase-money, and to execute certain works, not including the drainage of the adjoining lands. In releasing the company from all other claims by the proprietor the decreet-arbitral excepted ‘the obligations upon the said company to preserve the effective drainage of the lands, in so far as the same may be interfered with by the construction of the works, and to keep up the works, fences, water-courses, and others falling upon the said company under the Railway Clauses Consolidation (Scotland) Act 1845.’ . .
A disposition was thereafter granted by the proprietor conveying the lands to the Railway Company, narrating, and bearing to be in terms of, the decreet-arbitral, and declaring as a positive obligation ‘that the said Railway Company shall be bound and obliged to preserve the effective drainage of the lands in so far as the same may be interfered with by the railway works, and to keep up the works, fences, and water-courses and others falling upon them under the Railway Clauses Consolidation (Scotland) Act 1845.’
Held ( rev. the judgment of the First Division) that the obligations in the disposition must be construed with reference to the decreet-arbitral and the statutory obligations imposed on the company, and therefore implied only a duty to maintain the drainage works originally executed within five years from the opening of the railway, as provided by the said Act (secs. 60 and 65), and excluded any demand for new works after the lapse of that period, and any question as to the sufficiency of the works originally executed.
Observed that the decreet-arbitral, by which the rights of the parties were defined and determined, was the governing instrument, and that the disposition, the main purposes of which was to confer a feudal title, was merely ancillary to, and must be disregarded so far as inconsistent with, the decreet-arbitral.

Judges:

Lord Chancellor (Halsbury), and Lords Macnaghten, Morris, Shand, and Brampton

Citations:

[1900] UKHL 630, 37 SLR 630

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 27 October 2022; Ref: scu.631499

Regina v Cornwall County Council ex parte Huntington and Another: CA 1994

No application for judicial review could be made before the Secretary of State had confirmed a modification order. Simon Brown LJ identified three categories of case excluded from the statutory review procedure: ‘a) A failure by the statutory decision maker to exercise his jurisdiction . .
b) The reasoning underpinning the decision which is otherwise in the applicant’s favour . .
c) Some antecedent step quite separate and distinct from the eventual decision reviewable under the statute . . ‘
there were obvious benefits to a procedure that allowed a challenge to be brought only after a statutory decision making process had run its course. The first of these was ‘that the very fact that an application for judicial review cannot be made at this preliminary stage means that the inquiry will not be delayed thereby.’ Another was ‘that the Secretary of State may in any event refuse to confirm the order, thus making unnecessary any legal challenge whatever.’

Judges:

Simon Brown LJ

Citations:

[1994] 1 All ER 694

Statutes:

Wildlife and Countryside Act 1981

Jurisdiction:

England and Wales

Cited by:

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

Land, Planning

Updated: 27 October 2022; Ref: scu.541526

White v Richards: CA 1993

A right had been granted to ‘pass or repass on foot and with or without motor vehicles over and along the track coloured brown on the plan so far as the said right may be necessary for the use and enjoyment of the retained land.’ The county court judge found that the track in question was on average 8 feet 10 inches. He held that only vehicles whose wheel base was limited to 8 feet and which were no more than 9 feet wide could use the track. Even this, as he noted, would allow an overhang of a foot or so, and was, in his words, ‘more than generous to the defendants’. The judge considered and expressly rejected a submission that the way could be used by agricultural vehicles which extended beyond the grass verges at the side
Held: The appeal failed.
Nourse LJ considered the construction of such a deed and said: ‘The nature and extent of a private right of way created by express grant depend on the intention of the parties which must be ascertained from the words of the grant read in the light of the surrounding circumstances.’ and ‘The judge was right to focus his attention on ‘the track’. There was no other point from which he could start . . Here the words of the grant, to the extent that they are clear, identify nothing but the track, so that it is only from the physical characteristics with (sic) the width of the way can be ascertained.’ The surrounding circumstances will include the width and physical characteristics of the track.

Judges:

Nourse, Stewart-Smityh, Mann LJJ

Citations:

[1993] 68 PandCR 105

Jurisdiction:

England and Wales

Cited by:

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 – Wilkinson and The Estate of Brian Wilkinson v Farmer CA 22-Oct-2010
The court considered whether there was a compelling reason to allow a second application for leave to appeal against an order settling the width of a right of way.
Held: The appeal was allowed. Very limited facts could be established from the . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 27 October 2022; Ref: scu.254434

Sussex Investments Ltd and Another v Jackson and Cornell: CA 29 Jul 1993

Where the owner was registered as proprietor of the land between the towpath and the water’s edge, the securing of boats at the water’s edge and the laying out of gangplanks, is a trespass to the land despite the existence of a right of towage.

Citations:

Times 29-Jul-1993, Gazette 02-Aug-1993

Jurisdiction:

England and Wales

Torts – Other, Land

Updated: 26 October 2022; Ref: scu.89618

Mid-Glamorgan County Council v Ogwr Borough Council and Others: CA 5 Nov 1993

There was no need to serve a notice to treat on each commoner for a compulsory purchase order to proceed.

Citations:

Ind Summary 22-Nov-1993, Times 05-Nov-1993

Statutes:

Compulsory Purchase Act 1965 5 Sch 4

Jurisdiction:

England and Wales

Cited by:

Appeal from – Mid-Glamorgan County Council v Ogwr Borough Council and Others HL 3-Feb-1995
Land remained common land despite the individual rights having been compulsorily purchased by the local Authority. Once abandoned, it remained registerable. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 26 October 2022; Ref: scu.83704

London and Blenheim Estates v Ladbroke Retail Parks Ltd: CA 1 Jun 1993

The land-owner sold part of his land, granting easements over the retained land, and an agreement that, if further plots were purchased, similar easements would be granted. The agreement stated that the purchaser should have the right to give notice to nominate which land would constitute the dominant land for the purposes of any new easement. The purchaser bought additional land, but the original landowner had already sold on the remainder of his own land. The buyer sought a declaration that all the land had the benefit of the easement.
Held: An easement of parking is recognised in English Law. However, the original clause had not created an interest in land. Land could not be allowed to become burdened to an uncertain extent. Successors in title to the servient tenement could not be bound by such an interest until it became certain, by identification of the dominant land. The clause required a notice to be given, and the right to claim an easement arose only when that notice was given and they were not bound on the purchase itself.
The identification of a purchaser is not crucial to the existence of an estate contract in the sense that a contract in favour of an as yet unidentified purchaser to be nominated by a contracting party is a valid estate contract.
Peter Gibson LJ said: ‘an essential part of the interest to be granted was left uncertain. If one asks why the law should require that there should be a dominant tenement before there can be a grant, or a contract for a grant, of an easement sufficient to create an interest binding successors in title to the servient land, the answer would appear to lie in the policy against encumbering land with burdens of uncertain extent.
A further related answer lies in the reluctance of the law to recognise new forms of burden on property conferring more than contractual rights. A right intended as an easement and attached to a servient tenement before the dominant tenement is identified would in my view be an incident of a novel kind.’

Judges:

Peter Gibson LJ

Citations:

Times 01-Jun-1993, [1993] 4 All ER 157, [1994] 1 WLR 31

Jurisdiction:

England and Wales

Citing:

Cited – Pritchard v Briggs CA 1980
A conveyance of part in 1944 gave a right of pre-emption over retained land. The vendor’s successors the let the retained land to the plaintiff with an option to buy the freehold reversion. The retained land was sold to the defendants in purported . .
Distinguished – Turley v Mackay 1943
. .
Appeal from – London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive . .

Cited by:

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

Land, Contract

Updated: 26 October 2022; Ref: scu.83154

Greenwich London Borough Council v Secretary of State for Environment and Another: CA 2 Mar 1993

When the Secretary of State considered the offer of land in substitution for other land, an ancient woodland and site of special scientific interest, which was sought to be compulsorily acquired for a roadway, he was entitled to assess whether the exchanged land would be equally advantageous at the time when the exchange would take place, and to exercise a degree of flexibility.

Citations:

Ind Summary 15-Mar-1993, Times 02-Mar-1993, [1993] CLY 439

Statutes:

Wildlife and Countryside Act 1981, Acquisition of Land Act 1981 19

Jurisdiction:

England and Wales

Environment, Land

Updated: 26 October 2022; Ref: scu.81017

Hughes v Cook and Another: CA 14 Feb 1994

Adverse possession will accrue even if the claimant believed and acted on the mistaken belief that the land was already his. That belief was inconsistent with ownership by others. Beldam LJ said that counsel’s argument was fallacious: ‘. . in the failure to distinguish between an intention to possess, which is required, and an intention to dispossess, which is not.’
Saville LJ said: ‘The learned judge appears to have held that it is impossible for someone who believes himself to be the true owner to acquire title by adverse possession since such a person cannot, ex hypothesi, have an intention to exclude or oust the true owner. If this were the law then only those who knew they were trespassing, that is to say doing something illegal, could require such a title, whilst those who did not realise that they were doing anything wrong would acquire no right at all. I can see no reason why, as a matter of justice or common sense, the former but not the latter should be able to acquire title in this way. What the law requires is factual possession i.e. an exclusive dealing with the land as an occupying owner might be expected to deal with it, together with a manifested intention to treat the land as belonging to the possessor to the exclusion of everyone else. Obviously if the possessor knows or believes someone else has the paper title to the land he must intend to exclude that person along with everyone else. But in the absence of such knowledge or belief it is in my judgment sufficient for this part of the second requirement simply to establish a manifest intention to exclude everyone.’

Judges:

Beldam LJ, Saville LJ

Citations:

Ind Summary 21-Mar-1994

Jurisdiction:

England and Wales

Cited by:

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

Land, Limitation

Updated: 26 October 2022; Ref: scu.81520

Hanning and Others v Top Deck Travel Group Ltd: CA 9 Jun 1993

The owner of a common appealed a finding that the neighbouring land owner had acquired by prescription a right of way across the common to use a track for commercial vehicles (buses) to get to the property (the bus depot).
Held: An easement cannot become a right where the use of the route is illegal by virtue of a statutory provision. A use contrary to a statute cannot create an easement by prescription. The statute provided for a fine to be payable for someone using such a right of way other than by foot.

Judges:

Lord Justice Dillon Lord Justice Kennedy And Sir Roger Parker

Citations:

Gazette 09-Jun-1993, Times 06-May-1993, [1993] NPC 73 CA, [1993] CLY 1821, [1994] P and C R 14

Statutes:

Law of Property Act 1925 193(1)

Jurisdiction:

England and Wales

Citing:

Followed – 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 . .
Followed – Glamorgan County Council v Carter QBD 1962
A caravan owner appealed against an enforcement notice on the basis that no planning permission was required because the parking of caravans was the purpose for which the land had been last used.
Held: Factually that was correct. Prima facie . .
Cited – Cargill v Gotts CA 1981
The Act prohibited abstraction of water from a river without a licence from the Water Authority. The defendant had no such licence, but asserted that having extracted water over many years from the mill pond, he had acquired the right to do so: ‘The . .
Cited – Neaverson v Peterborough Rural District Council ChD 1902
The 1812 Act provided for the draining, enclosing and improving of a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of ‘sound and . .

Cited by:

Doubted – Bakewell Management Ltd v Brandwood and Others ChD 21-Mar-2002
The claimant sought a declaration that he had acquired an easement over land by driving over it, over several years. The land owner denied the easement, saying that section 193 made the claimant’s activity a crime, and that, following Hanning, . .
Applied – Roland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
Overruled – 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 – Robinson v Adair QBD 2-Mar-1995
The Truro Crown Court had allowed Mr Adair’s appeal against his conviction for obstructing a highway. The prosecutor appealed.
Held: It had to be decided whether a particular road had become by presumed dedication a public highway. The use . .
Cited – Hereford and Worcester County Council v Pick 1-Apr-1995
The issue was whether a presumed dedication of a road as a public highway could result from twenty years or more of uninterrupted public use in breach of section 34(1) of the 1988 Act. The court was considering whether a footpath, alleged to have . .
Applied – Massey and Another v Boulden and Another CA 14-Nov-2002
The claimants said they had acquired a right of way by vehicle over land, a village green, having driven over it for more than forty years. It was responded that the act of driving over the land other than on a track had been an unlawful act, and as . .
Relied upon – Hayling v Harper and Another CA 2-Apr-2003
The case asked whether vehicular user of a public footpath in breach of section 34(1) of the 1988 Act could lead to the acquisition by prescription of a public right of way.
Held: Hanning barred a claim to the easement under section 2 of the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 26 October 2022; Ref: scu.81220

City of Bradford Metropolitan Council v McMahon and McMahon: CA 21 Apr 1993

The right to buy a council house is dependant on the existence of a secure tenancy to which it is incidental, and that right disappears on the death of the tenant because there was no secure tenancy left upon which to base the right: ‘It is a creature of statute and is sui generis; if it is helpful to equate it to some more general right recognised by the courts I would prefer to describe it as analogous to a personal equity.’

Judges:

Balcombe LJ

Citations:

Independent 21-Apr-1993, [1994] 1 WLR 52, (1993) 25 HLR 534

Statutes:

Housing Act 1985 121 ff

Jurisdiction:

England and Wales

Cited by:

Cited – Zionmor v Mayor and Burgesses of London Borough of Islington CA 10-Oct-1997
The council appealed a finding that the claimant, a secure tenant, had not surrendered his tenancy. He had sought to exercise his right to buy the property, but was said to have left the premises before the lease was completed. The property was . .
Lists of cited by and citing cases may be incomplete.

Housing, Local Government, Land

Updated: 26 October 2022; Ref: scu.79145

Burton v Winters: CA 2 Jun 1993

The defendant’s garage had encroached by one brick’s width on the plaintiff’s land and had been built in 1975. The plaintiff obtained a declaration that that was the position in 1990 but was refused the mandatory injunction which she sought. The plaintiff would not accept this conclusion and she trespassed on, and interfered with, the defendant’s garage and land. The defendants obtained an injunction to restrain her from doing so, but she continued, and she was the subject of an application for committal for contempt, and she was committed for contempt for a period of two years. She appealed.
Held: She had not been entitled to use self help. Self help was wrong in a complicated case, but abatement is available in simple cases where the abatement would remove the nuisance and the cost of legal proceedings could not be justified. Self help to overcome a trespass by encroachment could rarely be justified.
Lloyd LJ discussed the relevant principles of self help: ‘Ever since the assize of nuisance became available, the courts have confined the remedy by way of self-redress to simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings, and urgent cases which require an immediate remedy. Thus, it was Bracton’s view that where there is resort to self-redress, the remedy should be taken without delay. In Blackstone’s Commentaries on the Laws of England, Book III, chapter 1, we find: ‘And the reason why the law allows this private and summary method of doing one’s self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy; and cannot wait for the slow progress of the ordinary forms of justice.’
The modern textbooks, both here and in other common law jurisdictions, follow the same line: see Salmond and Heuston on Torts, 20th ed. (1992) p. 485; Clerk and Lindsell on Torts, 16th ed. (1989) p. 36; Fleming, The Law of Torts, 7th ed. (1987), p. 415 and Prosser and Keeton, The Law of Torts, 4th ed. (1971), p.641. In Prosser and Keeton we find: ‘Consequently the privilege [of abatement] must be exercised within a reasonable time after knowledge of the nuisance is acquired or should have been acquired by the person entitled to abate; if there has been sufficient delay to allow resort to legal process, the reason for the privilege fails, and the privilege with it.’
. . And: ‘In my opinion, this never was an appropriate case for self-redress, even if the plaintiff had acted promptly. There was no emergency. There were difficult questions of law and fact to be considered and the remedy by way of self-redress, if it resulted in the demolition of the garage wall, would have been out of all proportion to the damage suffered by the plaintiff.’ As to the refusal of the mandatory injunction he said: ‘Self redress is a summary remedy, which is justified only in clear and simple cases, or in an emergency.’

Judges:

Anthony Lloyd LJ

Citations:

Gazette 02-Jun-1993, [1993] 1 WLR 1077, [1993] 3 All ER 847

Jurisdiction:

England and Wales

Citing:

Cited – Moffett v Brewer 1848
Greene J said: ‘This summary method of redressing a grievance, by the act of an injured party, should be regarded with great jealousy, and authorised only in cases of particular emergency, requiring a more speedy remedy than can be had by the . .

Cited by:

Applied – Chamberlain v Lindon Admn 18-Mar-1998
The appellant challenged the dismissal of his private prosecution of the defendant in destroying a new garden wall. The magistrates had found a lawful excuse in that the defendant said that the wall had been constructed to obstruct his private right . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Torts – Other, Land

Updated: 26 October 2022; Ref: scu.78775

Farrell v First National Bank Plc: LT 1 Nov 1999

LT COMPENSATION – mortgagee but not claimant appearing – unfit house – interior but not exterior well maintained – Housing Act 1985 Schedules 23 and 24 – whether entitlement to owner-occupier supplement – alternatively whether compensation to include well-maintained payment – evidence not establishing that claimant had interest in house throughout Schedule 24 qualifying period – no jurisdiction in Lands Tribunal to determine entitlement to well-maintained payment – site value compensation only

Citations:

[1999] EWLands ACQ – 10 – 1997

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 25 October 2022; Ref: scu.225556