Ratcliff v McConnell and Jones: CA 30 Nov 1998

The claimant, a nineteen year old student climbed into a college property in the early hours of the morning, and then took a running dive into the shallow end of a swimming pool, suffering severe injuries. He was accompanied by friends and had been drinking, though he was not drunk.
Held: A trespasser having climbed into grounds at night and dived into a swimming pool without knowing the depth accepted responsibility for his own acts. The dangers of diving into shallow water were known to adults and there was no need for a warning. The existence of a duty had to be determined by reference to the likelihood of the trespasser’s presence in the vicinity of the danger at the actual time and place of danger to him.
The Act did not include the duty to safeguard the claimant from the consequences of his own folly.
Stuart-Smith LJ said: ‘It is unfortunate that a number of high-spirited young men will take serious risks with their own safety and do things that they know are forbidden, Often they are disinhibited by drink and the encouragement of friends. It is the danger and the fact that it is forbidden that provides the thrill. But if the risk materialises they cannot blame others for their rashness.’

Lord Justice Stuart-Smith, Lord Justice Thorpe, Lord Justice Mummery
Times 03-Dec-1998, [1999] 1 WLR 670, [1997] EWCA Civ 2679
Bailii
The Occupiers’ Liability Act 1957
England and Wales
Cited by:
CitedDonoghue v Folkestone Properties Limited CA 27-Feb-2003
The claimant had decided to go for a midnight swim, but was injured diving and hitting a submerged bed. The landowner appealed a finding that it was 25% liable. The claimant asserted that the defendant knew that swimmers were common.
Held: The . .
CitedHampstead Heath Winter Swimming Club and Another v Corporation of London and Another Admn 26-Apr-2005
Swimmers sought to be able to swim unsupervised in an open pond. The authority which owned the pond on Hampstead Heath wished to refuse permission fearing liability for any injury.
Held: It has always been a principle of the interpretation of . .
CitedOvu v London Underground Ltd (Duty of Care) QBD 13-Oct-2021
Safety of Stairs within Undergrounds Care of duty
The Claimant sued the London Underground company because their relative Mr Ovu died after falling down stairs on a fire escape. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Land, Negligence

Updated: 27 November 2021; Ref: scu.136077

Tomlinson v Congleton Borough Council and others: HL 31 Jul 2003

The claimant dived into a lake, severely injuring himself. The council appealed liability, arguing that it owed him no duty of care under the Act since he was a trespasser. It had placed warning signs to deter swimmers.
Held: The council’s appeal succeeded. The risk of injury arose, not from any danger due to the state of the defendants’ premises, or to things done or omitted to be done on those premises, but from the claimant’s own misjudgment in attempting to dive in water that was too shallow. This was not a risk that gave rise to any duty on the defendants’ part and that, in any event, it had not been a risk in respect of which the defendants might reasonably have been expected to afford the claimant protection. The dangers were signposted, and therefore the 1957 Act did not apply. Under the 1984 Act, the question was whether there was a difference between someone whose entry to the property was as a trespasser, and someone who having entered property lawfully, became a trespasser after by acting outside the terms of the licence. There should not be a difference, and nor should the authority be required to take greater steps than they had to prevent others taking risks which were obvious.
Lord Hoffmann said why the voluntary assumption of risk was a complete answer to his claim: ‘I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hand-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalistic view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.
My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with an appropriate moderation my disagreement with the proposition of Sedley LJ that it is ‘only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability’. A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Commissioner of the Police of the Metropolis [2000] 1 AC 360.’

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote
[2003] UKHL 47, Times 01-Aug-2003, Gazette 11-Sep-2003, [2003] 3 WLR 705, [2004] 1 AC 46, [2003] NPC 102, [2003] 32 EGCS 68, [2003] 3 All ER 1122, [2004] PIQR P8
Bailii, House of Lords
Occupier’s Liability Act 1984 1, Occupier’s Liability Act 1957 2
England and Wales
Citing:
Appeal fromTomlinson v Congleton Borough Council and Another CA 14-Mar-2002
The claimant was injured swimming in a lake in a park. Warning signs clearly indicated that the lake was dangerous for swimming.
Held: The authority were liable. They knew that the lake was attractive to swimmers, and that the signs were . .
CitedHillen and Pettigrew v ICI (Alkali) Ltd HL 1936
Stevedores who were lawfully on a barge for the purpose of discharging it, nevertheless became trespassers when they went onto an inadequately supported hatch cover in order to unload some of the cargo. They knew that they ought not to use the . .
CitedDonoghue v Folkestone Properties Limited CA 27-Feb-2003
The claimant had decided to go for a midnight swim, but was injured diving and hitting a submerged bed. The landowner appealed a finding that it was 25% liable. The claimant asserted that the defendant knew that swimmers were common.
Held: The . .
CitedBritish Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
CitedStaples v West Dorset District Council CA 5-Apr-1995
There was no duty of care on a landowner to warn of obvious danger on Lyme Regis Cobb. The quay clearly dangerous for anyone to see. . .
CitedOverseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
CitedJolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
CitedDarby v National Trust CA 29-Jan-2001
The claimant’s husband drowned swimming in a pond on the National Trust estate at Hardwick Hall. Miss Rebecca Kirkwood, the Water and Leisure Safety Consultant to the Royal Society for the Prevention of Accidents, gave uncontradicted evidence, which . .
CitedBolton v Stone HL 10-May-1951
The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence.
Held: When looking at the duty of care the court should ask whether the risk was not so remote . .
CitedCommissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 11-Feb-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
CitedStevenson v Glasgow Corporation 1908
Lord M’Laren said: ‘in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town . .
CitedHastie v Magistrates of Edinburgh 1907
There are certain risks against which the law, in accordance with the dictates of common sense, does not give protection – such risks are ‘just one of the results of the world as we find it’. . .
CitedGlasgow Corporation v Taylor HL 18-Nov-1921
A father brought an action for damages for the death of his son who had eaten poisonous berries growing in one of the defenders’ public parks. The plants were easily accessible from a children’s play area and it was said that the defender had a duty . .
CitedCotton v Derbyshire District Council CA 20-Jun-1994
No notice warning of danger was necessary on a public right of way for an obviously dangerous cliff. The Court upheld the decision of the trial judge dismissing the plaintiff’s claim for damages for serious injuries sustained from falling off a . .
CitedKarl Andrew Whyte v Redland Aggregates Limited CA 27-Nov-1997
The appellant dived into a disused gravel pit and struck his head on an obstruction on the floor of the pit. The Court dismissed his appeal that he was not entitled to damages.
Held: ‘In my judgment, the occupier of land containing or bordered . .
CitedBartrum v Hepworth Minerals and Chemicals Limited QBD 1984
The claimant dived from a ledge on a cliff. In order to avoid shallow water he knew that he had to dive out into the pool but he failed to do so and fractured his neck.
Held: The court dismissed his claim for damages saying ‘So far as the Act . .

Cited by:
CitedSimonds v Isle of Wight Council QBD 23-Sep-2003
The claimant sought damages, having been injured at a school sports day. The school had carried out a risk asessment and acknowledged a risk of injury.
Held: Not every risk identified could or should be controlled. The injury occurred whilst . .
CitedGorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
CitedSandhar, Murray v Department of Transport, Environment and the Regions QBD 19-Jan-2004
The claimant asserted a common law duty on the respondent to maintain a roadway free of frost.
Held: No such common law duty existed. Where parliament has conferred a discretionary power, ‘ . . the minimum preconditions for basing a duty of . .
CitedJane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
CitedMcTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
CitedHampstead Heath Winter Swimming Club and Another v Corporation of London and Another Admn 26-Apr-2005
Swimmers sought to be able to swim unsupervised in an open pond. The authority which owned the pond on Hampstead Heath wished to refuse permission fearing liability for any injury.
Held: It has always been a principle of the interpretation of . .
CitedKeown v Coventry Healthcare NHS Trust CA 2-Feb-2006
The claimant a young boy fell from a fire escape on the defendant’s building. He suffered brain damage and in later life was convicted of sexual offences.
Held: His claim failed: ‘there was no suggestion that the fire escape was fragile or had . .
CitedCorr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
CitedJL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
CitedGeary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
CitedHelena Partnerships Ltd v HM Revenue and Customs CA 9-May-2012
The company had undertaken substantial building works and sought associated tax relief. The court was asked whether, following a change in the company’s memorandum and articles of association, the company, a registered social landlord, remained a . .
CitedHarvey v Plymouth City Council CA 29-Jul-2010
The Council appealed against a finding of liability under the 1957 Act after the claimant was injured after jumping over a fence to flee hving to pay a taxi, and falling down a steep slope onto a car park. The land had been licenced to the . .
CitedCockbill v Riley QBD 22-Mar-2013
cockbill_rileyQBD2013
The claimant sufferd catastrophic injury diving into a paddling pool at a party held by the defendant for his daughter to celebrate completing her GCSEs.
Held: The claim failed. ‘It was reasonably foreseeable that someone would lose his . .
CitedUren v Corporate Leisure (UK) Ltd CA 2-Feb-2011
The claimant suffered injury at a competitive fun day organised by his employers, the RAF at a facility of the respondents. He struck his head diving into a very shallow inflatable pool. He appealed against dismissal of his claim.
Held: The . .
CitedOvu v London Underground Ltd (Duty of Care) QBD 13-Oct-2021
Safety of Stairs within Undergrounds Care of duty
The Claimant sued the London Underground company because their relative Mr Ovu died after falling down stairs on a fire escape. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Leading Case

Updated: 27 November 2021; Ref: scu.185424

Spearman v Royal United Bath Hospitals NHS Foundation Trust: QBD 4 Dec 2017

The Claimant suffered a hypoglycaemic attack (being Type 1 diabetic) and was taken by ambulance to the Hospital, arriving at 22.00 hours. Within 15 minutes, he had left the emergency department of the hospital, climbed five flights of stairs to a flat roof, climbed over a protective barrier and either fallen or jumped into a courtyard below where he suffered serious injuries.
The issue for decision is whether this accident occurred as a result of the breach of duty of the defendant whether owed to the Claimant under the Occupiers Liability Act 1957 and/or the Occupiers Liability Act 1984 or at Common Law, or whether the Claimant was the author of his own misfortune.

Martin Spencer J
[2017] EWHC 3027 (QB)
Bailii
Occupiers Liability Act 1957, Occupiers Liability Act 1984
England and Wales
Cited by:
CitedOvu v London Underground Ltd (Duty of Care) QBD 13-Oct-2021
Safety of Stairs within Undergrounds Care of duty
The Claimant sued the London Underground company because their relative Mr Ovu died after falling down stairs on a fire escape. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good . .

Lists of cited by and citing cases may be incomplete.

Land, Personal Injury

Updated: 27 November 2021; Ref: scu.601123

Braithwaite v South Durham Steel Co Ltd and Another: QBD 1958

The Plaintiff was employed by South Durham Steel as a crane driver’s mate and he was preceding a mobile crane along a railway line. Another line, in the ownership of the British Transport Commission (BTC), and not his employers, ran alongside and was very close by. At some point while walking he inadvertently put his foot a few inches over the sleepers, and was struck by oncoming traffic on the line when he was startled by a warning should from the crane driver. BTC argued he was a trespasser at the moment of the accident, and that absent a reckless or deliberate act to harm him, no other duty was owed.
Held the Claimant had placed his foot onto the BTC’s land and did not have permission to do so, but even so held that it was unrealistic and artificial on the facts of the case, where he was a licensee on part of the walkway and his encroachment was wholly inadvertent, to find that his involuntary encroachment onto the BTC’s land made him a trespasser.
Mr Justice Edmund Davies said this: ‘Even so, the submissions of learned Counsel . . appears to me to be unrealistic when it is thought to be applied to the facts of this case, namely, that (a) the plaintiff was a licensee in the walkway, and (b) his encroachment of a few inches over or upon the sleepers of the commission’s line was only inadvertent and involuntary and the result of his startled turnabout as a result of the warning shout . . ‘

Mr Justice Edmund Davies
[1958] 1 WLR 986
England and Wales
Cited by:
CitedOvu v London Underground Ltd (Duty of Care) QBD 13-Oct-2021
Safety of Stairs within Undergrounds Care of duty
The Claimant sued the London Underground company because their relative Mr Ovu died after falling down stairs on a fire escape. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 27 November 2021; Ref: scu.670075

Cornerstone Telecommunications Infrastructure v St Martins Property Investments and Another: UTLC 8 Oct 2021

ELECTRONIC COMMUNICATIONS CODE – INTERIM CODE RIGHTS – access for multi-skilled visit – whether freeholder need be bound by interim rights – whether right to undertake destructive investigations to be granted at first hearing – terms of agreement – costs

[2021] UKUT 262 (LC)
Bailii
England and Wales

Land

Updated: 26 November 2021; Ref: scu.669244

Snelling and Another v Burstow Parish Council: CA 12 Nov 2013

Appeal by allotment holders against rejection of objection to proposed sale of allotments for development.
Held: The requirement under section 8 of the 1925 Act to obtain the Minister’s consent does not apply to all land which is in fact used as allotments. It applies only to land which has been ‘purchased or appropriated’ for that purpose

Patten, Treacy, Christopher Clarke LJJ
[2013] EWCA Civ 1411, [2013] WLR(D) 433, [2014] 1 WLR 2388, [2013] 47 EG 129
Bailii, WLRD
Commons Act 1876, Small Holdings and Allotments Act 1908, Allotments Act 1925 8
England and Wales
Cited by:
CitedAdamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council CA 18-Feb-2020
Appropriation was not in sufficient form
The claimants had challenged an order supporting the decision of the Council to use their allotments for a new primary school, saying that the land had be appropriated as allotment land, and that therefore the consent of the minister was needed.
Landlord and Tenant, Land

Updated: 25 November 2021; Ref: scu.517650

Hutchings and Another v Nuneaton and Bedworth Borough Council: UTLC 16 Oct 2013

UTLC COMPENSATION – compulsory purchase – house in state of disrepair – agreed value as refurbished – cost of refurbishment – comparison with other fire damaged or vandalised properties – compensation determined at andpound;30,500

P D McCrea FRICS
[2013] UKUT 506 (LC)
Bailii
England and Wales

Land, Damages

Updated: 25 November 2021; Ref: scu.517602

The Trustees of The Green Masjid and Madrasah Re Yardley Wood Road: UTLC 6 Aug 2013

RESTRICTIVE COVENANT – modification – proposed mosque and madrasah – whether objector acting as a custodian of the public interest or as a landowner of adjoining and adjacent land – whether substantial practical benefits – traffic, parking, noise – breach – whether discretion should be exercised to refuse application – application granted subject to acceptance of further provisions by applicants – Law of Property Act 1925, ss84(1)(aa) and (c)

[2013] UKUT 355 (LC)
Bailii
Law of Property Act 1925 84(1)(aa) 84(1)(c)
England and Wales

Land

Updated: 25 November 2021; Ref: scu.517589

Nottingham City Council v Tyas: UTLC 3 Oct 2013

UTLC HOUSING – ENFORCEMENT ACTION – improvement notice – request for extension of time to appeal – criteria to be applied – para. 14(3), Sch. 1, Housing Act 2004 – proof of service by post – s. 233, Local Government Act 1972 – s. 7, Interpretation Act 1978 – appeal allowed

Martin Rodger QC, DP
[2013] UKUT 492 (LC)
Bailii
Housing Act 2004, Local Government Act 1972 233, Interpretation Act 1978 7
England and Wales

Land

Updated: 25 November 2021; Ref: scu.517604

James (T/A P and C James Properties) v Welsh Assembly Government: UTLC 5 Sep 2013

UTLC COMPENSATION – compulsory purchase – shop and premises – condition – cost of essential repairs to bring into safe and lettable condition – valuation methodology – comparables – disturbance – compensation determined at andpound;255,000

P R Francis FRICS
[2013] UKUT 422 (LC)
Bailii
England and Wales

Land, Damages

Updated: 25 November 2021; Ref: scu.517595

Buckstone Group Ltd and Others v Oldham Metropolitan Borough Council: UTLC 24 Apr 2013

UTLC COMPENSATION – compulsory purchase – blight notice – dispute over compensation, satellite litigation and costs – purported settlement – preliminary issues – whether settlement agreement binding – whether ‘pre-reference’ costs included – decision: binding settlement included all claims and costs

[2013] UKUT 265 (LC)
Bailii
England and Wales

Land, Damages

Updated: 25 November 2021; Ref: scu.517583

Smart v The London Borough of Lambeth: CA 7 Nov 2013

A local authority granted a licence to a housing association which in turn allowed a housing cooperative to provide accommodation to former squatters on a licence which was initially for 5 years but was extended. A claim was made for adverse possession.

Longmore, Underhill, Floyd LJJ
2013] 46 EG 108, [2014] HLR 7, [2013] EWCA Civ 1375
Bailii
England and Wales
Cited by:
CitedZH and CN, Regina (on The Applications of) v London Boroughs of Newham and Lewisham SC 12-Nov-2014
The court was asked whether the 1977 Act required a local authorty to obtain a court order before taking possession of interim accommodation it provided to an apparently homeless person while it investigated whether it owed him or her a duty under . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 25 November 2021; Ref: scu.517466

Brand and Another v Philip Lund (Consultants) Ltd: ChD 18 Jul 1989

The plaintiffs objected to the transport of wood from the defendant’s neighbouring land by lorry along an accessway to the plaintiff’s land. They said the defendants had no right of vehicular access. The defendants asserted a public vehicular highway.
Held: The court rejected the argument that a public right of way may only exist from one public place or highway to another: ‘it does not have to be shown that it is normally used to go from one end to the other. It may normally be used by people going from either end to and from premises fronting on to it and less frequently used by persons traversing its whole length. The user necessary to establish a right of way is to be considered separately from the way itself.’
This was an ancient vehicular highway used from time immemorial along the line of Ramscote Lane.

Paul Baker QC HHJ
[1989] EWHC 2 (Ch)
Bailii
Highways Act 1980
Citing:
CitedAttorney-General v Antrobus ChD 1905
The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
Held: The court rejected a suggestion that . .
CitedThe Marquis of Stafford v Coyney 1827
Where a land-owner suffered the public to use, for several years, a road through his estate for all purposes, except that of carrying coals : Held, that this was either a limited dedication of the road to the public or no dedication at all, but only . .
CitedFolkestone Corporation v Brockman HL 1914
A public right of way was claimed. It was argued that, in the absence of evidence of facts inconsistent with a dedication of the pathway, the jury were obliged to make such a finding.
Held: The House rejected this submission. User was no more . .
CitedBeckett (Alfred F) v Lyons 1967
A claim was made that the inhabitants of the County Palatine of Durham had the right to take coal from the seashore.
Held: Dedication of a public right must be to the public at large or a sufficiently large section of the public at large and . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 25 November 2021; Ref: scu.517379

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.

[1987] 1 EGLR 116
England and Wales
Cited by:
Not followedBotham 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 . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 25 November 2021; Ref: scu.241281

Mace Ltd and Others v Persons Unknown: QBD 26 Mar 2021

Application by the first claimant construction company and the second and third claimant landowners for quia timet injunctive relief against persons unknown seeking to prevent an activity known as urban exploring from taking place at a construction site

The Honourable Mrs Justice Stacey
[2021] EWHC 726 (QB)
Bailii, Judiciary
England and Wales

Land

Updated: 25 November 2021; Ref: scu.660813

In re De Falbe: CA 1901

The court referred to the originally unbending rule that everything affixed to the freehold was held to go with the freehold: ‘But in modern times there have come to be important exceptions to this rule, one being in favour of trade fixtures and entitling a person who has put up what are now called ‘fixtures’ (which means removable fixed things) for the purposes of trade to remove them.’ and ‘But the question is, whether they were not made ‘fixtures,’ meaning thereby objects fixed to the wall which might be removed at the will of the person who had fixed them.’ The exception included objects which had been affixed to the freehold by way of ornament.
Vaughan Williams LJ said that there was not to be an inquiry into the motive of the person who annexed the articles, ‘but a consideration of the object and purpose of the annexation as it is to be inferred from the circumstances of the case.’

Rigby LJ, Vaughan Williams LJ
[1901] 1 Ch 523
England and Wales
Cited by:
CitedElitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 25 November 2021; Ref: scu.240416

The Lord Advocate v John Gordon, Esq Et E Contra: HL 21 Mar 1751

Tailzie. – Forfeiture. – Act 7 Annae, c. 21.-
An entail prohibiting, under strict irritant and resolutive clauses, ‘any deed civil or criminal, or even treasonable, whereby the estate may be in any way evicted, forfeited,’ and co.; and it being declared that any such deed ‘should only irritate the right of the committer thereof, but should in no ways affect the right of the next heir, albeit descending of the contravener’s body,-Found, that by the attainder of the heir in possession, the estate was forfeited to the crown, not only during his own life, but so long as there should survive any issue of his body who would have been entitled to succeed under the entail, had there been no attainder; and further, that whatever interest might eventually arise to the attainted person under the substitution to ‘the heirs and assignees’ of the entailer, was also forfeited to the crown.

[1751] UKHL 1 – Paton – 508
Bailii
Scotland

Land

Updated: 22 November 2021; Ref: scu.558204

Charles Mercer, Second Son of Sir Lawrence Mercer v His Majesty’s Advocate: HL 14 Dec 1753

HL Entail. – Forfeiture.-
Held that the appellant was not entitled to claim his brother’s forfeited estate, he not being an heir-substitute, but an heir-male, of the marriage under the investitures. And that the deed he founded on not containing prohibitory, irritant, and resolutive clauses, nor recorded, could not support his claim.

[1753] UKHL 1 – Paton – 538, (1753) 1 Paton 538
Bailii
Scotland

Land

Updated: 22 November 2021; Ref: scu.558215

Armbrister and Another v Lightbourn and Another: PC 11 Dec 2012

(Bahamas)

Lord Walker, Lord Clarke, Lord Sumption, Lord Carnwath, Sir Stephen Sedley
[2012] UKPC 40
Bailii
England and Wales
Citing:
CitedEastwood v Ashton HL 1915
Toi Identify Land, Court to Find True Meaning
A contract described the property and referred to a plan attached. The conveyance used four indications: the farm sold was said to be called by a given name, to contain 84 acres odd ‘or thereabouts’, and to be in the occupation of two different . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 November 2021; Ref: scu.466975

Steedman v William R Drinkle and Another: PC 21 Dec 1915

(Saskatchewan) Land in Canada was purchased under an agreement, where the price was to be paid by one initial payment and annual instalments. If the purchaser was to default on any payment, the vendor was free to cancel the agreement and to retain, as liquidated damages, the payments already made. It was also provided that time was to be considered as of the essence of the contract. The first deferred payment was not made on the due date. The vendor gave notice cancelling the agreement. Three weeks after the due date the purchaser tendered the amount due, which was refused. He thereupon brought an action claiming specific performance and relief from forfeiture of the amount already paid.
Held: The Board upheld the decision of the Canadian Court, that the stipulation as to the retention of the sums already paid was a penalty. But the Board declined to grant specific performance.
Viscount Haldane said:
‘Courts of Equity, which look at the substance as distinguished from the letter of agreements, no doubt exercise an extensive jurisdiction which enables them to decree specific performance where justice requires it, even though literal terms as to stipulation as to time have not been observed. But they never exercise this jurisdiction where the parties have expressly intimated in their agreement that it is not to apply by providing that time is to be of the essence of the bargain’.
And ‘As to the relief from forfeiture, their Lordships think that the Supreme Court was right in holding, for the reasons assigned in the former decision of this Board, that the stipulation in question was one for a penalty, against which relief should be given on proper terms. But as regards specific performance they are of opinion that the Supreme Court was wrong in reversing the judgment of Newlands J. Courts of Equity, which look at the substance as distinguished from the letter of agreements, no doubt exercise an extensive jurisdiction which enables them to decree specific performance in cases where justice requires it, even though literal terms of stipulations as to time have not been observed. But they never exercise this jurisdiction where the parties have expressly intimated in their agreement that it is not to apply by providing that time is to be of the essence of their bargain. If, indeed, the parties, having originally so provided, have expressly or by implication waived the provision made, the jurisdiction will again attach.’

Viscount Haldane
[1915] UKPC 71, [1916] AC 275
Bailii
Canada

Commonwealth, Land, Equity

Updated: 22 November 2021; Ref: scu.423780

Duffield v Elwes: 12 Jun 1823

Land subject to mortgage – possible gift donatio mortis causa?

[1823] EngR 598, (1823) 1 Sim and St 239, (1823) 57 ER 96
Commonlii
England and Wales
Cited by:
See AlsoThomas Duffield, Esq And Emily Frances His Wife v Amelia Maria Elwes, Widow, Francis Const And George Law, Abraham Henry Chambers, The Rev William Hicks, Clerk and Others 1825
. .
See AlsoDuffield v Elwes 1-Jun-1826
. .
See AlsoThomas Duffield, And Emily Frances His Wife v Elwes, Chambers, Hicks And others PC 1827
. .
See AlsoThomas Duffield, And Emily Francis His Wife, Plaintiffs In The Court Of Chancery v Amelia Maria Elwes, Francis Const, George Law, Abraham Henry Chambers, William Hicks, George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duff PC 1829
. .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Land

Updated: 22 November 2021; Ref: scu.328638

Trail Riders Fellowship and Others v Powys County Council: Admn 17 Oct 2013

The applicants challenged decisions of the Council to make a traffic regulation order over each of two byways in the county. The Council was both the traffic and highway authority for the county. These orders had the effect of prohibiting the use of the byways by motor vehicles, motor cycles and horse drawn vehicles.

Cranston J
[2013] EWHC 3144 (Admin)
Bailii

Land, Local Government

Updated: 21 November 2021; Ref: scu.516545

West Sussex County Council v Pierce (A Child): CA 16 Oct 2013

‘The question which has to be addressed therefore is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises’

Sharp McFarlane LJJ, Lord Dyson MR
[2013] EWCA Civ 1230, [2014] PIQR 101
Bailii
Occupier’s Liability Act 1957 1 2(2)
England and Wales
Cited by:
CitedG4S Care and Justice Services (UK) Ltd v Manley QBD 30-Sep-2016
The appellant company managed a prison They now appealed against an order finding them liable to the claimant prisoner for personal injury under the 1957 Act. The claimant had been returned to the prison after a hip operation. The lights went out. . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Land

Updated: 21 November 2021; Ref: scu.516540

Margate Town Centre Regeneration Company Ltd and Others v Secretary of State for Communities and Local Government and Others: CA 8 Oct 2013

Appeal against dismissal of claim for quashing of compulsory purchase order.

Goldring, Elias LJJ, Sir David Keene
[2013] EWCA Civ 1178
Bailii
Acquisition of Land Act 1981
England and Wales
Citing:
Appeal fromMargate Town Centre Regeneration Company Ltd and Others v Secretary of State for Communities and Local Government and Another Admn 2-May-2013
Challenges to compulsory purchase orders.
Held: The Orders stand . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 21 November 2021; Ref: scu.516320

Commission for New Towns and Another v JJ Gallagher Ltd: ChD 16 Dec 2002

Where a conveyance did not expressly include an adjoining road, there was no statutory presumption which would lead to its inclusion.
Held: The section referred to incorporeal rights, easements and similar, and not to land itself. The Act did not operate so as to include the roadway. The Berridge case referred to cases where the roadway fell to be divided by presumption. Here the entire width was owned, but the presumption would operate as to the entire roadway.
Neuberger J said: ‘So far as principle is concerned, the highway presumption is that, in the absence of a good reason to the contrary, where a vendor conveys land adjoining the highway and (as is usual) he therefore owns the land of the adjoining highway ad medium filum, he should be presumed to have conveyed away that land, which he owns under the highway, together with the land the subject of the express conveyance. The rule is essentially one of convenience, both in public terms and bearing in mind the interests of the parties. It is undesirable, in terms of public interest, to have odd pieces of land, whose ownership is largely academic in practice (unless, for instance, the highway is diverted), vested in persons who have no interest in any adjoining land, and who may well not even be aware that they own part of the highway. It is in the interest of the parties to a conveyance that the purchaser takes the adjoining highway land, essentially for the same reason. On that basis, if the adjoining owner happens to own more than half the width of the adjoining road, even all the adjoining road, it would seem logical that the presumption should lead to his being deemed to convey away the whole of his interest in the adjoining road. To put the point more simply, if the rule is that, in the absence of good reason, a person should not retain the half of a highway adjoining land which he sells, it seems almost a fortiori that he should not retain the other half of the adjoining highway, if he happens to own that half as well. Further, there is no inherent reason why the soil of the whole of the highway should not be deemed to be conveyed away: consider a case where the vendor owns, and is conveying land on each side of the highway.’

Neuberger J
[2002] EWHC 2668 (Ch), [2003] 2 P and CR 24
Bailii
Law of Property Act 1925 62(1) 62(4)
England and Wales
Citing:
CitedBerridge v Ward 1861
The court set out the presumption ad medium filum as follows: ‘Where a piece of land which adjoins a highway is conveyed by general words, the presumption of law, is that the soil of the highway usque ad medium filum passes by the conveyance, even . .

Cited by:
CitedPaton 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: 20 November 2021; Ref: scu.178611

LE Jones (Insurance Brokers) Ltd v Portsmouth City Council: CA 7 Nov 2002

The Council appealed against a finding that it was liable for damage to the claimant’s property caused by the roots of trees on the highway maintained by the appellant. The Council asked whether it was the correct defendant having acted as agent for the County Council, whether proper opportunity had been given to abate the nuisance, and whether the underpinning works had been necessary.

Aldous, Dyson LJJ
[2002] EWCA Civ 1723, [2003] BLR 67, (2002) 87 Con LR 169, [2003] 15 EG 139, [2003] 1 EGLR 99, [2002] 47 EG 146, [2003] 1 WLR 427
Bailii
England and Wales
Citing:
CitedSolloway v Hampshire County Council CA 1981
Tree root damage had occurred following two successive very hot and dry summers in 1975 and 1976, in an area where the subsoil was almost all gravel but where, as it happened, under the plaintiff’s house there were pockets of clay. An issue arose as . .

Lists of cited by and citing cases may be incomplete.

Negligence, Nuisance

Updated: 19 November 2021; Ref: scu.515016

Beesly v Hallwood Estates Ltd: 1960

A lease contained an option to renew. Both the lease and the reversion were assigned for value. The assignee of the lease exercised the option and a new lease and counterpart were engrossed. The tenant executed the counterpart. The assignee of the reversion, a company, sealed the lease, but then sought to avoid granting the lease.
Held: Buckley J said that where a deed is intended to be executed in duplicate to give effect to a transaction by which each of the two parties undertakes obligations to the other, prima facie a party executing the lease does so in escrow conditionally on the other party executing his part of the lease. J Buckley said that he was bound to treat an instrument complying with section 74(1) as ‘having been not only sealed but also delivered.’ When a party has delivered a document in escrow, he must await the event to see whether or not the condition is fulfilled.

Buckley J
[1960] 1 WLR 549, [1960] 2 All ER 314
Law of Property Act 1925 74(1)
England and Wales
Cited by:
Not followedBolton Metropolitan Borough Council v Torkington CA 31-Oct-2003
The proposed landlord had sealed the lease, but the tenant was to seal and deliver his part by a certain date. The respondent purported to complete the lease later.
Held: Under the 1985 Act completion would require writing, intention and . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 November 2021; Ref: scu.188669

Roger Michael and others v Douglas Henry Miller and Another: ChD 22 Mar 2004

Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
Held: In exercising his power of sale a mortgagee is under a general duty to take reasonable care to obtain the best price reasonably obtainable at the time and ‘the best price reasonably obtainable’ is synonymous with ‘a proper price’ . ‘What is proper advertisement will depend on the circumstances of the case.’ In this case the method of advertisement was the best available in difficult circumstances.The issue of valuing the lavender should be resolved by mediation. Appeal dismissed.

Lord Justice Auld Lord Justice Parker Lord Justice Scott Baker
[2004] EWCA Civ 282, Times 30-Mar-2004
Bailii
England and Wales
Citing:
CitedCuckmere Brick Co Ltd v Mutual Finance Ltd CA 1971
A mortgagee selling as mortagee in possession must ‘take reasonable care to obtain the true value of the property at the moment he chooses to sell it’ and obtain the best price for the property reasonably obtainable on the open market. However, . .
CitedDownsview Nominees Ltd and Another v First City Corporation Ltd and Another PC 19-Nov-1992
(New Zealand) The holder of a second debenture appointed receivers to the assets. The first debenture holder then also appointed receivers not to obtain repayment of its debt, but to disrupt the work of the first appointed receivers and in order to . .
CitedSkipton Building Society v Stott CA 2001
The issue was whether a mortgagee had sold at an undervalue, and if so what the damages should be.
Held: In a well-developed property market where a sale is assured and the only possible issue is as to the market level, damages for loss of . .
CitedRoutestone Ltd v Minories Finance ChD 1996
A receiver’s management duties will ordinarily impose on him no general duty to exercise the power of sale, or to ‘work’ an estate by refurbishing it before sale. Speaking of the role of an expert witness ‘What really matters in most cases are the . .
CitedArab Bank Plc v John D Wood Commercial Ltd (In Liquidation) and others CA 25-Nov-1999
Having once recovered damages against a valuer for a negligent survey, there was nothing to stop a lender recovering also under a policy of insurance under a mortgage indemnity guarantee, and so the lender was not required to give credit for monies . .
CitedSouth Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
CitedMerivale Moore Plc; Merivale Moore Construction Limited v Strutt and Parker (a Firm) CA 22-Apr-1999
An agent valuing a commercial property and estimating the return to be obtained without qualification, was responsible in damages where the clients would not have proceeded on properly qualified advice. The process of valuation does not admit of . .
CitedYorkshire Bank Plc v Hall and Others CA 18-Dec-1998
The Court of Appeal is not strictly bound by the terms of leave to appeal given, but where the points had been specifically considered a point could only be heard with the leave of the Court of Appeal which had full power to regulate its own . .
CitedPredeth v Castle Phillips Finance Co Ltd 1986
A mortgagee who sold by private treaty at a discount in order to achieve a quick sale, instead of offering the property at market value, was held to have breached his duty. . .
CitedBolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 November 2021; Ref: scu.194821

The Lord Advocate v Wemyss: HL 31 Jul 1899

Superior and Vassal – Barony Title – Grant of Minerals infra fluxum maris.
Prescription – Superior and Vassal – Estates Held by Different Titles – Disjunction of Barony by Division of Superiority.
Personal Bar – Homologation – Minor – Compromise by Trustees for Minor.

Lord Watson (in the Chair), and Lords Morris and Shand
[1899] UKHL 977, 36 SLR 977
Bailii
England and Wales

Land

Updated: 19 November 2021; Ref: scu.631836

JS Bloor (Wilmslow) Ltd v Homes and Communities Agency: UTLC 1 Jul 2013

UTLC COMPENSATION – compulsory purchase – land in agricultural use acquired as part of major 420 acre strategic business park development – planning assumptions under ss 14-17 of the Land Compensation Act 1961 – whether permission to be assumed on basis that land ‘allocated’ in development plan – whether planning permission to be assumed under ‘no-scheme’ rule – cancellation assumption – statutory disregards – hope value – highways and access – valuation – compensation determined at pounds 746,000

Judge Mole QC and P R Francis FRICS
[2013] UKUT 231 (LC)
Bailii
Land Compensation Act 1961 14 15 16 17
England and Wales

Land

Updated: 19 November 2021; Ref: scu.514723

Tate and Another Re: Dunston West Farm: UTLC 25 Jun 2013

UTLC RESTRICTIVE COVENANT – discharge or modification – redundant farm buildings – covenant not to use other than for agricultural use or as a riding school and livery stable – application to discharge or modify to permit erection of detached dwelling house and conversion of existing buildings to provide three dwelling houses – objection by owner of neighbouring agricultural land within Green Belt but with residential development potential on part – application granted – Law of Property Act 1925, s84(1)(aa)and (c)

N J Rose FRICS
[2013] UKUT 289 (LC)
Bailii
Law of Property Act 1925 84(1)(aa)
England and Wales

Land

Updated: 19 November 2021; Ref: scu.514716

McLennan, Regina (on The Application of) v Medway Council and Another: Admn 10 Jul 2019

Whether interference with solar panels material planning consideration. Application by the claimant for judicial review of a planning permission granted by Medway Council for a rear extension to a building. Some of the claimant’s principal arguments related to the severe impact the extension would have on light received by his solar panels.
Held: The mitigation of climate change is a legitimate planning consideration. The categorisation of the solar panels as a purely private interest which should not be considered in the planning process was flawed. Therefore, Medway Council’s failure to take account of the impact of the proposed development on the solar panels was irrational and one which no reasonable authority could have taken. As a result, K’s planning permission was quashed.

Lane J
[2019] EWHC 1738 (Admin), [2019] WLR(D) 393
Bailii, WLRD
England and Wales

Planning, Environment, Land

Updated: 19 November 2021; Ref: scu.639701

Price and Another v Nunn: CA 31 Jul 2013

[2013] EWCA Civ 1002
Bailii
England and Wales
Citing:
CitedHarris 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: 18 November 2021; Ref: scu.514246

Vernon Knight Associates v Cornwall Council: CA 30 Jul 2013

Appeal by Cornwall County Council against a decision that it is liable for damage caused by floodwater escaping from one of the roads in the county.

Lord Dyson MR, Jackson LJ, Sir Stanley Burnton
[2013] EWCA Civ 950, [2013] WLR(D) 329
Bailii, WLRD
Highways Act 1980 41(1) 58(1)
England and Wales

Land, Torts – Other

Updated: 18 November 2021; Ref: scu.514253

Paton v Devon County Council and Another: Admn 16 Jan 2013

The claimants appealed against rejection of their assertion of a local right of way. They referred to old maps. The respondent relied on the definitive map showing an alternate right of way since 1950.
Held: Though the claimant had a strong case, there was a sufficient basis of evidence for the recorder to have found as he did. There was no basis in law to challenge his findings.

Burton J
[2013] EWHC 1539 (Admin)
Bailii
Highways Act 1980 56, Wildlife and Countryside Act 1981 56

Land

Updated: 17 November 2021; Ref: scu.513733

Hall v Beckenham Corporation: 1949

A claim was made in nuisance against the local authority, the owner of a public park, in which members of the public flew noisy model aircraft.
Held: The local authority were not liable as the occupiers of the park for an alleged nuisance that was being committed in the park. Finnemore J discussed the purpose of a public walks or pleasure grounds under the 1875 Act, saying: ‘So far as a local authority are concerned, if land is bought under s. 164 of the Act of 1875 for that purpose it is dedicated to the use of the public for the purpose of a park.’

Finnemore J rejected the plaintiff’s submission that even if it was not the occupier, the authority was liable because it had the management and control of the park: ‘So long as a member of the public behaves himself in the ordinary way, committing no criminal offence and observing the by-laws, the corporation cannot stop his doing what he likes in this recreation ground . . I think that the corporation are the trustees and guardians of the park, and that they are bound to admit to it any citizen who wishes to enter it within the times when it is open. I do not think that they can interfere with any person in the park unless he breaks the general law or one of their by-laws. They cannot put themselves in the position of judges of whether a person may be causing a nuisance to someone outside the park. Their proper attitude to such a complaint is to say that the complainer must take action against the person who is said to be committing the nuisance.’

Finnemore J
[1949 ] 1 KB 716
Public Health Act 1875
England and Wales
Cited by:
CitedRegina 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: . .
CitedBarkas 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 . .
CitedBarkas, 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.

Nuisance, Land, Local Government

Updated: 17 November 2021; Ref: scu.187797

Wright v Macadam: KBD 1949

The court considered the exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of section 62. One exception was if the right was not capable of existing as an easement: ‘A further exception has been recognized in cases in which there could in the circumstances of the case have been no expectation that the enjoyment of the right could be other than temporary.’ The court summarised the Birmingham case: ‘Somebody took a lease of one of the houses at a time when an adjoining plot only had built upon it old buildings of less height than those contemplated by the scheme; but it was well known to everybody that the intention was, and the building scheme demanded, that this plot should be built upon to a greater height.’ He then quoted Cotton LJ and said ‘The learned Lord Justice, I think, meant no more than this, that it was knowledge common to both parties that the existing low building was going to be replaced by a higher one and, that being so, the fortuitous access of extra light to the lessee’s building while the scheme was being carried to completion could not be regarded as an enjoyment of light which would pass to the lessee a right to have it continued in the same degree.’
The court asked whether the right to use a coal shed could exist as an easement.

Jenkins LJ
[1949] 2 KB 727
Law of Property Act 1925 62
England and Wales
Citing:
ExplainedBirmingham, Dudley and District Banking Co v Ross CA 1888
Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under . .

Cited by:
ApprovedHair v Gillman 2000
. .
CitedP and S Platt Ltd v Crouch and Another CA 25-Jul-2003
The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did . .
CitedMontrose Court Holdings Ltd and Another v Shamash and others CA 21-Feb-2006
Tenants challenging power of freeholders to impose parking regulations on occupiers of development. The landlord appealed.
Held: ‘the regulations in the present case – which limited the right to park to the parking of one vehicle at a time – . .
CitedMoncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
CitedLong v Tower Hamlets London Borough Council ChD 20-Mar-1996
The parties had agreed for a lease, and the tenant entered possession, but no formal lease was executed. The tenant stopped paying rent in 1977 or 1984. He now claimed rectification of the registers to show him as proprietor. The landlord argued . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 November 2021; Ref: scu.185829

Trustees of The Coventry School Foundation v Whitehouse and Others: CA 18 Jul 2013

The appeal raised two points as to restrictive covenants: (a) Statutory annexation – whether the covenant was unenforceable, because the land intended to be benefited by the covenant could be easily or fully ascertained as to situation or extent for the purposes of s.78(1) of the Law of Property Act 1925; and (b) Breach – whether the operation of a school on the burdened land, as proposed by the appellant Foundation and opposed by the representative respondent residents living nearby, would be a source of traffic nuisance and annoyance in breach of covenant.

Mummery, McCombe, Beatson LJJ
[2013] EWCA Civ 885
Bailii
Law of Property Act 1925 78(1)
England and Wales

Land

Updated: 17 November 2021; Ref: scu.513395

Public Trustee v Duchy of Lancaster: CA 1927

The court was asked whether the conveyance of a farm out of which a tithe rentcharge issued carried with it, by reason of Section 63, the rentcharge itself.
Held: The farm and the tithe rentcharge were two separate hereditaments and express words would be necessary to pass the rentcharge. The intention of the 1836 Act was to keep the tithe rentcharge hereditament separate from the land out of which it issued.
Bankes LJ referred to Chapman v Gatcombe and said: ‘ general words such as those used in that case, ‘together with all the estate, right, title, interest . . of him W. Gatcombe therein or thereto or to any part or parcel thereof’, are insufficient to pass tithe rentcharge. And as the object of Section 63 of the Conveyancing Act 1881 was merely to do away with a necessity of using those general words and to treat every conveyance as if it contained them, that section does not carry the matter any further. It only enacts that the conveyance shall pass every interest etc. which the conveying party may have in ‘the property conveyed’ and for the reasons above given tithe rentcharge is not such an interest.’
Scrutton LJ said that a tithe was not regarded as an interest in the land in respect of which it was payable, ans: ‘. . It was called in the language of lawyers of that day [1836] a ‘collateral hereditament’ which was held by a different title from that of the land itself.’ He referred to Chapman v Gatcombe and said: ‘That being so Section 63 of the Conveyancing Act 1881 does not assist the Appellant. It merely renders it unnecessary any longer to include in a conveyance the long string of general words, ‘all the estate, right, title, interest,’ etc., that used to be known by the name of the ‘all estate clause’, and, in the absence of a contrary intention appearing, treats the conveyance as containing them. The result is that the conveyance of the lands of Chapel House Farm to the Duchy of Lancaster did not carry with it the rectorial tithe rentcharge, as that rentcharge was not an ‘interest in’ the land out of which it issued but something collateral to and independent of it.’ He noted that the relevant conveyance had there begun with a conveyance of physical land and continued:- ‘So far it is plain that the conveyance would not include tithe rentcharge. But it is said this tithe rentcharge is an ‘interest in the land’, and that by virtue of Section 63 of the Conveyancing Act 1881, the conveyance is to be read as if these words were written in it. Now it is quite clear that before 1836 a conveyance of physical land with any number of general words added, such as ‘all the estate, right, property, interest, claim and demand’ in the land conveyed would not pass tithe, for the reason that tithe was a hereditament independent of and separate from the land on which it was charged and was not an interest in it or appertaining to it.’

Bankes LJ, Scrutton LJ
[1927] 1 KB 516
Law of Property Act 1925 63, Tithe Commutation Act 1836, Conveancing Act 1881 63
England and Wales
Citing:
Still Good LawChapman v Gatcombe 1836
One separate hereditament cannot be appurtenant to another. . .

Cited by:
CitedHarbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Land, Ecclesiastical

Updated: 16 November 2021; Ref: scu.263189

Hill v Booth: CA 1930

Despite its entanglement with a right of entry intended to procure its payment, a separate personal obligation to pay instalments of the sum agreed as the premium for a lease remained merely a personal obligation and that a call for the payment by instalments was not a claim or demand in, to, or on the property conveyed within Section 63.

Scrutton LJ, Greer LJ
[1930] 1 KB 381
Law of Property Act 1925 63
England and Wales
Cited by:
CitedHarbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 November 2021; Ref: scu.263191

Munton v Greater London Council: CA 1976

With respect to the words ‘subject to contract’, Lord Denning said, ‘It is of the greatest importance that no doubt should be thrown on the effect of those words’. As to the difference netween the procedures of compulsory purchase and ordinary contracts: ‘First, when notice to treat is given, it binds the acquiring authority to purchase and the owner to sell at a price to be ascertained . . Second, when there is an unconditional agreement fixing the price – whether in writing or by word of mouth – it is the equivalent of a binding contract between the parties . . . Once, therefore a notice to treat has been served and there is an agreement on the price, a binding obligation is created which is equivalent to a contract between the parties.’

Lord Denning MR
[1976] 1 WLR 649
Law of Property Act 1925 840
England and Wales
Citing:
CitedVon Hatzfeldt-Wildensburg v Alexander ChD 26-Jul-1911
A purchaser wrote offering to purchase a house, saying acceptance was subject to her solicitor approving title, covenants, lease and form of contract.
Held: It was not a complete contract capable of enforcement: ‘It appears to be well settled . .

Cited by:
CitedConfetti Records (A Firm), Fundamental Records, Andrew Alcee v Warner Music UK Ltd (Trading As East West Records) ChD 23-May-2003
An agreement was made for the assignment of the copyright in a music track, but it remained ‘subject to contract’. The assignor later sought to resile from the assignment.
Held: It is standard practice in the music licensing business for a . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 16 November 2021; Ref: scu.183733

Goodman v Gallant: CA 30 Oct 1985

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

Slade, Purchase LJJ, Sir Roualeyn Cumming-Bruce
[1986] Fam 106, [1985] EWCA Civ 15, [1986] 1 FLR 513, [1986] 2 WLR 236
Bailii
Trustee Act 1925
England and Wales
Citing:
CitedWilson v Wilson CA 1963
. .
CitedLeake (formerly Bruzzi) v Bruzzi CA 1974
The house was purchased in the husband’s sole name with a declaration of trust in favour of the husband and wife, holding the property as joint tenants. The wife had left the matrimonial home, and the husband had paid all the mortgage instalments . .
CitedPink v Lawrence CA 1977
Buckley LJ (with whom the other members of the Court agreed) said that: ‘Where there is an express declaration of trust, the doctrine of constructive trusts cannot be referred to contradict the expressly declared trust. The doctrine of constructive . .
rejectedBedson v Bedson CA 1965
The parties, a married couple disputed the shares in which the matrimonial home, formerly held by them as joint tenants would be held after severance o that joint tenancy.
Held: The wife was entitled to a half share in the property.
Cited by:
CitedStack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
CitedClarke v Harlowe ChD 12-Aug-2005
The parties lived together. They acquired between them several properties of which the last was declared to be held as joint tenants. The relationship broke down. The parties now sought a declaration as to the destination of the proceeds of sale, . .
CitedPudner and Another v Pudner CA 27-Feb-2006
The parties challenged the validity of a will, and claimed the house by survivorship. The house had been conveyed into joint names, but the solicitors on registration had declared it a tenancy in common. This was said to have been a mistake.
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .

Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 16 November 2021; Ref: scu.181824

Half Moon Bay Limited v Crown Eagle Hotels Limited: PC 20 May 2002

Strips of land lay between the two hotels operated by the parties. Restrictive covenants had been entered into by the respondent’s predecessors in title. The claimant brought proceedings to enforce the restrictions on the use of the land. An earlier case had been compromised on condition that the covenants be entered on the registers. This had not happened, and the land had been sold on twice to the present owners.
Held: Questions of annexation only arose on a transfer of the property benefited. The burden of a covenant does not run with freehold land at common law. A negative covenant may be enforced against a successor in title in equity, but only for the benefit of land of the covenantee or his successor in title. An original covenantee, therefore, cannot enforce such a covenant against a successor in title of the covenantor unless he retains the ownership of land which is capable of enjoying the benefit of the covenant. Jamaica adopted a Torrens style for land registration. The registration of the covenants after the land had been transferred was ineffective, since they ceased to bind the land on transfer unless registered.

Lord Nicholls of Birkenhead, Lord Browne-Wilkinson, Lord Millett, Sir Murray Stuart-Smith, Sir Christopher Staughton
[2002] UKPC 24, (Appeal No 31 of 2000)
PC, PC, PC, Bailii
Restrictive Covenants (Discharge and Modification) Act 1960 (Jamaica)
England and Wales
Citing:
CitedLondon County Council v Allen 1914
A landowner applied to the plaintiffs for their sanction to a new street scheme. It was given but subject to his covenant to keep certain land unbuilt upon. He gave the covenant. The plaintiffs themselves had no land in the area capable of . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Land, Commonwealth

Updated: 15 November 2021; Ref: scu.171198

Pitman v Nuneaton and Bedworth Borough Council: UTLC 21 May 2013

UTLC BLIGHT NOTICE – preliminary issue – subject property sold by claimants’ mortgagee in possession before Lands Chamber considered counter-notice – whether deemed withdrawal of blight notice – whether compensation could be awarded for loss – claimants’ hardship – reference struck out as having no reasonable prospect of success

[2013] UKUT 246 (LC)
Bailii
England and Wales

Land

Updated: 15 November 2021; Ref: scu.512307

GPE (Hanover Square) Ltd v Transport for London: UTLC 28 May 2013

UTLC COMPENSATION – compulsory purchase – preliminary issue – freehold and long leasehold interests subject to occupational leases – whether value of interests to be assessed on assumption that terms of leases were as they would have been if no proposal to acquire – held they should not – Land Compensation Act 1961 ss 5 and 9

[2012] UKUT 417 (LC)
Bailii
Land Compensation Act 1961 5 9
England and Wales

Land, Damages

Updated: 15 November 2021; Ref: scu.512302

Menelaou v Bank of Cyprus Plc: ChD 19 Jul 2012

On the sale of the claimant’s property, the solicitors received agreement by the defendant bank to the release of their charge over the property for a certainsum, being less than the loan outstanding. In the course of discharging the loan, a bank employee ineffectively simply changed the name on the charge. They made further a loan, but the secuity was ineffective. The bank claimed in just enrichment.
Held: As regards the totality of the purchase price of Great Oak Court, it was not discharged by the use of monies belonging to the Bank. This both eliminates the claim that Great Oak Court is pro tanto held on trust for the Bank and destroys the traditional route to subrogation to an unpaid vendor’s lien.

David Donaldson QC
[2012] EWHC 1991 (Ch)
Bailii
England and Wales
Citing:
CitedBanque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
CitedBuhr v Barclays Bank plc CA 26-Jan-2001
The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank . .

Cited by:
Appeal fromMenelaou v Bank of Cyprus UK Ltd CA 19-Jun-2013
The Court was asked questions about the law of unjust enrichment, and one of the remedies which may be granted to reverse the effect of unjust enrichment, namely subrogation to an unpaid vendor’s lien. The bank had released its charges over property . .
At ChDMenelaou v Bank of Cyprus UK Ltd CA 4-Jul-2013
The court set out answers to consequential questions raised by their judgment, and the form of declaration required. . .
At First InstanceBank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 15 November 2021; Ref: scu.512281

Maksymenko and Gerasymenko v Ukraine (LS): ECHR 16 May 2013

ECHR Article 1 para. 1 of Protocol No. 1
Deprivation of property
Public interest
Invalidation ten years after the event of privatisation of hostel and all subsequent transfers of property without compensation: violation
Facts – In 2004 the applicants purchased a hostel that had been privatised in 1995 from S., a private company in liquidation. However, in 2006 the domestic courts invalidated the original 1995 decision to privatise the hostel and all subsequent transfers of property and ruled that ownership of the hostel was to be transferred to the town council. The applicants were awarded compensation to be paid by S, but this was never paid. In 2007 the regional court of appeal found in a separate case that the privatisation of another hostel in 1995 had been lawful, since hostels did not form part of State housing stock. Subsequently, the town council sold to their occupants twelve of the fourteen apartments at the hostel that had been purchased by the applicants.
Law – Article 1 of Protocol No. 1: There had been a deprivation of property which amounted to interference with the applicants’ right to the peaceful enjoyment of their possessions. The decision of 2006 invalidating the 1995 decision to privatise was based on a provision of national law which appeared unclear as there was no single approach at national-court level on whether ‘hostels’ were caught by the prohibition on privatising ‘housing stock’. The State authorities had, with a view to protecting the housing rights of others, corrected what they considered to be an erroneous interpretation of the law in force more than ten years earlier. In this context, the principle of good governance had particular importance and in addition to imposing an obligation on the authorities to act promptly to correct a mistake, could also require the payment of adequate compensation or another type of appropriate reparation. Before taking the decision to sell the hostel to the applicants, the board of creditors had informed the State authorities of possible complications but in January 2004 the town mayor had explicitly refused to take over ownership of the hostels. A year later the prosecutor had instituted court proceedings seeking to invalidate the contract of sale of the hostel on the grounds that the hostel should not have been privatised in the first place. However, a year after the decision satisfying the prosecutor’s claim was upheld by a higher court, 85% of the hostel apartments had been sold on to their occupants. This confirmed that the State did not intend to keep the hostel for use as social housing. Lastly, the applicants had not received any compensation for the property. Although the domestic courts had ordered S. to pay compensation, they must have been aware by then that the company was already insolvent. In such circumstances, the Court was not convinced that the applicants were required to institute further proceedings to claim damages from the State and so dismissed the Government’s objection in that regard. Accordingly, even assuming the interference in question was based on clear and foreseeable provisions of the national law and was aimed at protecting the housing rights of others, the fact that the applicants, who were bona fide purchasers, were unable to obtain compensation for their losses, which had been inflicted on them by the inconsistent and erroneous decisions of the State authorities, constituted a disproportionate burden.
Conclusion: violation (unanimously).
Article 41: EUR 6,127 in respect of pecuniary damage, EUR 3,000 in respect of non-pecuniary damage.

49317/07 – Legal Summary, [2013] ECHR 543
Bailii
European Convention on Human Rights
Human Rights
Citing:
Full JudgebtMaksymenko and Gerasymenko v Ukraine ECHR 16-May-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Land

Updated: 14 November 2021; Ref: scu.510971

Newhaven Port and Properties Ltd, Regina (on The Application of) v Secretary of State for The Environment Food and Rural Affairs: CA 14 Jun 2013

Lloyd, Lewison, Gloster LJJ
[2013] EWCA Civ 673
Bailii
The Newhaven Harbour and Ouse Lower Navigation Act 1847, Commons Act 2006, Newhaven Harbour Improvement Act 1878
England and Wales
Citing:
CitedOxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Appeal fromNewhaven Port and Properties Ltd v East Sussex County Council and Others Admn 21-Mar-2012
The company objected to the proposed registration by the defendant Council of a strip of beach land as a common. They said that it was not a ‘town or village green’ within the 2006 Act.
Held: The court rejected all grounds of objection, save . .
See AlsoNewhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another CA 27-Mar-2013
The port challenged the proposed registration of part of the beach at Newhaven as a village green, saying that the result would be inconsistent with their performance of their statutory duties. . .

Cited by:
At CA (2)Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2021; Ref: scu.510865

Pole and Another v Peake and Another: CA 17 Jul 1998

The defendants owned land over which the plaintiffs owned shooting and other sporting rights. When the plaintiffs licenced those rights to others the defendants objected and prevented access. They appealed a finding that they had infringed the rights, saying that the extent of enjoyment now claimed was unreasonable.
Held: The rights granted were widely stated and included rearing birds.

[1998] EG 125, [1998] EWCA Civ 1229, [1998] NPC 121
Bailii
England and Wales
Citing:
CitedWhite v Grand Hotel Eastbourne Ltd CA 28-Oct-1912
A private dwelling house, to which a right of way was appurtenant, was converted into a hotel.
Held: A right of way granted for general purposes is not to be restricted to access to the land merely for such purposes as were reasonably required . .
CitedJohnstone v Holdway 1963
. .
CitedSt Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA 1973
When looking at a contract ‘one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.’
The contra preferetem rule can only come into play . .
CitedFarrer v Nelson 1885
The plaintiff was tenant of a farm over which the defendants’ predecessor had reserved shooting rights. The defendants had brought pheasants in coops on to land very close to the plaintiffs’ farm. The came onto the farm damaging his crops. The . .
CitedPeech v Best CA 1931
The defendant owned a 700 acre farm. He granted to the plaintiff ‘the exclusive right of shooting and sporting in over and upon it’ for a term of fourteen years. With still some four years of the term to run, he conveyed 12 acres of the farm for the . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2021; Ref: scu.144708

Todrick v Western National Omnibus Co Ltd: ChD 1934

A vendor sold land with a reservation for the benefit of certain land of ‘a perpetual right of way in common with the Purchaser her heirs and assigns at all times and for all purposes with or without vehicles and animals from and to the public highway’ and across it onto another road, together with a right to construct an extension of that road, as defined by reference to points marked on a plan. The grant of a right of way was in unrestricted language, but the roadway in question was very narrow and was contained by a retaining wall to prevent it slipping down the valley. It was argued that ‘Here is a reservation of a right of way in unlimited language, and, therefore, we can use this right of way for any type of vehicle and any purpose for which the most extensive right of way can be used.’
Held: Farwell J applied the principle that: ‘in judging whether there is an excessive user of the right regard must be had to ‘the circumstances of the case, the situation of the parties and the situation of the land.’ Farwell J accepted a submission that the grant was not an easement but a personal license reserved to the original vendor which was lost when the vendor parted with the property in question. The plaintiff therefore got the land free from any right of the defendant to enter on it for any purpose.

Farwell J
[1934] Ch 190
England and Wales
Cited by:
Appeal fromTodrick v Western National Omnibus Co Ltd CA 2-Jan-1934
The plaintiff owned a house in Cornwall and a private roadway to the South leading from a highway to the west to garages at the eastern end, which also belong to the plaintiff. The property which included the roadway and the garages had been . .
CitedStanton, 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. . .
ApprovedRobinson v Bailey CA 1948
The court considered the extent of use of a right of way. After citing Farwell J in Todrick, Lord Greene said: ‘While not in any way dissenting from that statement as a general proposition, I would like to give this word of caution, that it is a . .
CitedMinor v Groves CA 20-Nov-1997
The parties were neighbours, with houses adjacent to a right of way. Slabs had been laid next to the houses forming a raised pavement. The respondents had sought to enclose their area of this raised pavement, building a porch. They now appealed an . .
CitedDavill v Pull and Another CA 10-Dec-2009
The court was asked to interpret grants of rights of way over land. The claimant intended to increase the use of the right. The servient owners objected. The claimant appealed against refusal of relief.
Held: The appeal succeeded. There was . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2021; Ref: scu.254433

Jones v Price: 3 Jun 1836

Plea of enjoyment of right of common for thirty years before the commencement of the suit, Held sufficient, without saying thirty years next before.

[1836] EngR 777, (1836) 3 Bing NC 52, (1836) 132 ER 329 (A)
Commonlii
England and Wales

Land

Updated: 14 November 2021; Ref: scu.315109

Segro (Free Movement of Capital – Opinion): ECJ 31 May 2017

References for a preliminary ruling – Article 49 TFEU – Freedom of establishment – Article 63 TFEU – Free movement of capital – Indirect discrimination – Contractual usufructuary rights or rights of use in agricultural land – Prohibition of the acquisition of such rights by persons other than members of the close family of the owner of the agricultural land – Legislation prescribing the cancellation of such rights where that condition not satisfied – No justification – Infringement of national legislation on exchange control – Prevention of abusive practices – Prevention of property speculation – Articles 17 and 47 of the Charter of Fundamental Rights of the European Union – Inapplicability of the Charter of Fundamental Rights of the European Union independently of the question of infringement of the freedoms of movement

C-52/16, [2017] EUECJ C-52/16_O, ECLI:EU:C:2017:410
Bailii
European

Human Rights, Land

Updated: 14 November 2021; Ref: scu.668591

White v Grand Hotel Eastbourne Ltd: CA 28 Oct 1912

A private dwelling house, to which a right of way was appurtenant, was converted into a hotel.
Held: A right of way granted for general purposes is not to be restricted to access to the land merely for such purposes as were reasonably required at the date of the grant; therefore a right of way for general purposes to a private dwelling-house is not affected by the house being turned into an hotel.
The conversion of a private residence on the dominant tenement to a lodging house for the drivers of cars whose owners stayed at a nearby hotel owned by the defendants was held not to subject the easement to a use not contemplated at the time of the grant in 1883. At that time, the dominant tenement had one resident with two vehicles. After the conversion it had ‘many residents of a shifting character with vehicles that do not belong to them’. Nevertheless, the Court of Appeal held that the different use was within the terms of the grant. Hamilton LJ said: ‘The house in the present case was used as a private dwelling-house in 1883, but with the consent of a third person it might be, as in fact it was, turned into a house which could be used to trade.’

Lord Cozens-Hardy MR, Hamilton LJ
[1913] 1 Ch 113, [1912] UKLawRpCh 117
Commonlii
England and Wales
Cited by:
CitedPole and Another v Peake and Another CA 17-Jul-1998
The defendants owned land over which the plaintiffs owned shooting and other sporting rights. When the plaintiffs licenced those rights to others the defendants objected and prevented access. They appealed a finding that they had infringed the . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2021; Ref: scu.264033

Todrick v Western National Omnibus Co Ltd: CA 2 Jan 1934

The plaintiff owned a house in Cornwall and a private roadway to the South leading from a highway to the west to garages at the eastern end, which also belong to the plaintiff. The property which included the roadway and the garages had been conveyed to his predecessor in title by N by a conveyance which contain the reservation to N and his successors of a perpetual right-of-way along the roadway with power to extend some yards to land further East belonging to N which was shown on a plan attached to the conveyance and coloured blue. Subsequently N bought some land north of the blue land and by a deed a right to extend the roadway to this land was substituted for the right to extend it directly onto the blue land. The result of this was that when the roadway was so extended it could substantially only obtain access to the Blue land over an intervening strip of the Land to the north of it. The defendant company having purchased the blue land and the land to the north built a garage for motor omnibuses on the blue land and proceeded to extend the roadway to the intervening strip and carry it over the strip to the Blue land. As part of the blue land where the garage stood was much higher than the road way defendant company in order to obtain a gradual slope continued the roadway on the plaintiff’s land by means of a concrete ramp, which, by the time it reached the 5 ft wall between the plaintiffs land and the intervening strip was almost the height of the wall. The plaintiff objected strongly to the making of this ramp, which made access to his garage more difficult, and brought an action claiming a) that the defendants had no right of way over the roadway for the reason that the right alleged to have been retained the right alleged to have been given pertained only to the Blue land to which there was no direct access from the roadway; or alternatively b) that there had been excessive use of the right 1) by reason of the building of the ramp and 2) by reason of the user of the roadway for motor buses.
Held: it was sufficient that a right of way should be beneficial in respect of the ownership of the Land to which it purported to be made appurtenant, and there need be no physical contiguity between the way and the dominant tenement; but 2) there had been excessive user in regard both to the building of the ramp and to the user of the roadway for motor omnibuses

Lord Hanworth MR, Romer and Maugham LJJ
[1934] Ch 561, [1934] All ER Rep 25, (1934) 103LJ Ch 224, (1934) LT 163, (1934) 78 Sol Jo 318
England and Wales
Citing:
Appeal fromTodrick v Western National Omnibus Co Ltd ChD 1934
A vendor sold land with a reservation for the benefit of certain land of ‘a perpetual right of way in common with the Purchaser her heirs and assigns at all times and for all purposes with or without vehicles and animals from and to the public . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2021; Ref: scu.669787

Cornerstone Telecommunications Infrastructure Ltd v University of The Arts London: UTLC 1 Sep 2020

ELECTRONIC COMMUNICATIONS CODE – CODE RIGHTS – paragraph 21 of the Code – whether prejudice to the site provider outweighs the public benefit of imposing an agreement – whether prejudice can be compensated in money – redevelopment by a third party – interim Code agreement, jurisdiction – terms of agreement – upgrading, sharing, access, compensation, equipment, electricity supplies, exclusion zones.

[2020] UKUT 248 (LC)
Bailii
England and Wales

Land, Utilities

Updated: 12 November 2021; Ref: scu.653287

Galloway v Earl of Minto: HL 12 Dec 1921

Held (aff. judgment of Second Division) that a heritor whose teinds have been valued in money but have had a stipend localled upon them in victual, is bound, where the stipend exceeds the amount of the valued teinds, either to pay the amount or to surrender the teinds in perpetuity. He is not entitled to tender for the particular year the amount of his teinds as valued.
Where the teinds are unvalued and the stipend localled exceeds one-fifth of the rent, the heritor must either pay the amount of the stipend or lead a Valuation and surrender.

Lord Dunedin, Lord Atkinson, Lord Shaw, Lord Sumner, and Lord Wrenbury
[1921] UKHL 46, 59 SLR 46
Bailii
Scotland

Land

Updated: 12 November 2021; Ref: scu.632645

JMMB Merchant Bank Ltd v The Real Estate Board: PC 20 Apr 2015

(Jamaica) The Board was asked ‘ two issues, namely (i) whether a charge in favour of the Real Estate Board (‘the REB’) is valid only if it has been registered under section 93 of the Companies Act 2004; and (ii) to what extent (if at all) does a charge in favour of a regulated financial institution rank pari passu with the REB’s charge.’

Lady Hale
Lord Sumption, Lord Carnwath, Lord Hughes, Lord Hodge
[2015] UKPC 16
Bailii
England and Wales

Land, Company

Updated: 12 November 2021; Ref: scu.545684

Henderson v Foxworth Investments Limited and Another: SC 2 Jul 2014

It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
Held: The appeal was allowed. The critical issue was whether ‘the alienation was made for adequate consideration’. One element was that the same debt said to have been taken on by the purchaser, was in fact proved against the company on its subsequent insolvency. The criticisms levelled at the Lord Ordinary in relation to this matter missed their target: ‘His treatment of this chapter of evidence was not unbalanced, and did not indicate any failure to understand it or to take it into account. More generally, he gave careful consideration to the arguments and evidence adduced on behalf of the liquidator, and explained why he nevertheless concluded that the liquidator’s case should be rejected.’
Lord Reed summarised the approach to a judgment of the Court of Session: ‘It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.’
and ‘It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.’

Lord Kerr, Lord Sumption, Lord Reed, Lord Carnwath, Lord Toulson
[2014] 1 WLR 2600, [2014] UKSC 41, 2014 GWD 23-437, 2014 SLT 775, [2014] WLR(D) 290, 2014 SCLR 692, UKSC 2013/0083
Bailii Summary, Bailii, WLRD, SC, SC Summary, SC, SC Summary
Insolvency Act 1986 242
Scotland
Citing:
Outer House OpinionHenderson v Foxworth Investments Ltd SCS 12-Apr-2011
Outer House – The pursuer was liquidator of a Company, suing for declarator that ‘the pretended standard security’ granted by the second defenders in favour of the first defenders in respect of subjects was void and unenforceable; and for production . .
Costs at Outer HouseHenderson v Foxworth Investments Ltd and Another SCS 17-Jun-2011
The court having assoilzied the defendant in the claim now considered an application for costs. . .
CitedHenderson v Foxworth Investments Ltd and Another SCS 17-Jun-2011
The court having assoilzied the defendant in the claim now considered an application for costs. . .
CitedWatt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
CitedMcGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
CitedJohn Stewart Hamilton and others v Allied Domecq Plc OHCS 1-Aug-2003
. .
CitedThomson v Kvaerner Govan Limited HL 31-Jul-2003
The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient . .
CitedHousen v Nikolaisen 28-Mar-2002
Supreme Court of Canada – Torts – Motor vehicles – Highways – Negligence – Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge . .
CitedRe B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .

Cited by:
CitedCarlyle (Scotland) v Royal Bank of Scotland Plc SC 11-Mar-2015
Assessing Whether 1st Judge was Plainly Wrong
The Court was asked whether, on an objective assessment of a what a developer and the bank had said to each other, the bank intended to enter into a legally binding promise to advance sums in the future to fund not only the developers purchase of . .
CitedPaymaster (Jamaica) Ltd and Another v Grace Kennedy Remittance Services Ltd PC 11-Dec-2017
(Court of Appeal of Jamaica) The parties disputed the ownership of copyight in certain computer software, and also an allegation of the misuse of confidential information. . .
CitedPerry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .
CitedWalsh v The Council of The Borough of Kirklees QBD 5-Mar-2019
No demonstrable error of assessment – no appeal
The claimant cyclist appealed from refusal of damages after being thrown from her bike on hitting a pothole in the road. The court had found it unproven that the pothole was dangerous.
Held: The evidence had been difficult. The court noted . .

Lists of cited by and citing cases may be incomplete.

Land, Insolvency

Leading Case

Updated: 12 November 2021; Ref: scu.533880

Chambers v London Borough of Havering: CA 20 Dec 2011

The defendant appealed against an order for him to surrender possession of land he had claimed by adverse possession. The Council was the registered proprietor. The defendant said he had used the land since 1981 for dumping of motor vehicle parts. The judge had decided that the defendant had not established factual possession for the necessary period, preferring the evidence of aerial photographs.
Held: As to one part of the land, the judge was plainly correct. However, as to another there was evidence of the use of the land by the claimant for the keeping of animals, and that was the most appropriate test. The test applied by the judge of continuity was incorrect. The judge had not addressed and made findings as to certain pieces of evidence.
As to the significance of the fencing: ‘Each case turns on its own particular facts. In a case of adverse possession, where the defendant relies upon the existence of fencing, the Judge will plainly have to consider its significance. In some cases, it will be cogent evidence, perhaps the most cogent evidence, of adverse possession where its effect is wholly to exclude the paper owner, even if it was erected to keep animals inside rather than to exclude people, including the paper owner. In other cases, when considered in the context of the evidence as a whole, fencing may be not be inconsistent with the absence of actual possession and of an intention to possess on the defendant’s part, even where the fencing physically excludes the paper owner.’ As to the latter areas of land, the appeal succeeded, and the case was remitted for reconsideration.

Rix, Etherton, Lewison LJJ
[2011] EWCA Civ 1576
Bailii
Limitation Act 1980 15 Sch 1
England and Wales
Citing:
CitedBligh v Martin ChD 1968
The paper owner of the disputed land had grazed cattle on it in winter, and denied that the defendant claiming adverse possession had been in continuous occupation.
Held: Even though the adverse possessor had received rent from the real owner, . .
CitedLeigh v Jack CA 1879
The plaintiff’s predecessor in title (Mr Leigh) had laid out part of his estate as proposed streets to be known as Grundy Street and Napier Place. He conveyed to the defendant certain land described as being ‘bounded by’ Grundy Street and Napier . .
CitedGeneray Ltd v Containerised Storage Company Ltd CA 23-Mar-2005
. .
CitedPowell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘In the absence of evidence to the . .
CitedHounslow Borough Council v Minchington CA 1997
Millett LJ considered a claim for adverse possession: ‘So far as the defendant’s animus possidendi is concerned, Mr Lewison relied upon the fact that Mrs Ritter and after her the defendant or Mr Collins’ enclosure of the land was in order to keep . .
CitedMichael Batt Charitable Trust v Adams ChD 2001
The court looked at what was required to establish adverse possession in a claim for land. Laddie J said: ‘The only factor that appears, at first sight, to point in the direction to exclude anyone, is the fact that Mr Higgs maintained and repaired . .
CitedJ A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
CitedInglewood Investments Company Ltd v Baker CA 8-Nov-2002
The court considered a claim for the adverse possesion of land.
Held: Dyson LJ said: ‘to establish a claim of adverse possession for the requisite period of 12 years it is necessary to establish: (1) actual possession; (2) an intention to . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 November 2021; Ref: scu.450103

Celsteel Ltd v Alton House Holdings Ltd: ChD 1985

An equitable easement (a right of way), which was not protected by any entry on the register, was a right openly exercised and enjoyed as appurtenant, in this case to a garage, and it adversely affected registered land as an overriding interest. The court generally considered the availability of a remedy for infringement of a right of way.
Scott J said: ‘There emerge from the three cases I have cited two criteria relevant to the question whether a particular interference with a right of way is actionable. The interference will be actionable if it is substantial. And it will not be substantial if it does not interfere with the reasonable use of the right of way.’

Alston J, Scott J
[1985] 1 WLR 204
Land Registration Rules 1925 258, Land Registration Act 1925 70(1)(a)
England and Wales
Citing:
AppliedClifford v Hoare 1874
. .

Cited by:
CitedFerrishurst Ltd v Wallcite Ltd CA 30-Nov-1998
A person in actual occupation of registered land at time of transfer can enforce his rights against the transferee. A sub-underlessee in occupation of part could enforce an option to purchase against the freeholder acquiring intermediate registered . .
CitedBesley v John CA 29-Oct-2003
The defendant farmed land adjacent to land over which he had registered rights of common allowing him to graze sheep. The freeholders brought the action saying that the use was in excess of the rights. He counter-claimed that the extension of a golf . .
AppliedThatcher v Douglas and Another CA 19-Dec-1995
The Court rejected the contention that Celsteel was wrongly decided and that the Rule only applied to legal easements. The court followed Celsteel and applied it to equitable easements, holding them to be overriding interests by virtue of Rule 258. . .
CitedBhullar and Another v McArdle CA 10-Apr-2001
The defendant had registered a caution against the claimant’s land at the Land Registry. The claimant sought its removal and now appealed an order for rectification of the register against him. The parties had reached oral agreements as to the . .
CitedSweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .
MentionedSommer and Another v Sweet and Another CA 10-Mar-2005
The claimants had sought entry into theirs and their neighbour’s registered land titles of entries to acknowledge their rights of way. The neighbours appealed the finding of a right of way of necessity and by proprietary estoppel, and an order for . .
CitedMoncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
CitedWest and Another v Sharp CA 12-May-1999
A deed granted a right of way 40 ft wide, but the land owner narrowed the area of land over which the easement was enjoyed. The easement dominant owner did not object for many years.
Held: The deed was clear, and the original extent of the . .
CitedB and Q Plc v Liverpool and Lancashire Properties Ltd ChD 26-Jul-2000
The dominant owner wished to deal with delivery vehicles in a manner where they were left parked awaiting emptying. The servient owner (a lessee) wanted to construct buildings over a large part of the land. The servient owner objected.
Held: . .
CitedChaudhary v Yavuz CA 22-Nov-2011
The court was asked ‘whether and if so how an easement arising informally and not protected by any entry at the Land Registry can be effective against a purchaser of the land over which the easement would be exercised.’ The parties respectively . .
CitedEmmett v Sisson CA 3-Feb-2014
Appeal against judgment in boundary dispute involving a private driveway.
Held: The appeal failed. ‘The respondents are entitled to exercise the ‘relative luxury’ of the ample right to gain both vehicular and pedestrian access to their land . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Land

Leading Case

Updated: 11 November 2021; Ref: scu.187687

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 through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.’ and ‘If parties to a contract, by their course of dealing, put a particular interpretation on the terms of it – on the faith of which each of them — to the knowledge of the other — acts and conducts their mutual affairs — they are bound by that interpretation just as much as if they had written it down as being a variation of the contract. There is no need to inquire whether their particular interpretation is correct or not — or whether they were mistaken or not — or whether they had in mind the original terms or not. Suffice it that they have, by their course of dealing, put their own interpretation on their contract, and cannot be allowed to go back on it.’

Lord Denning MR, Brandon LJ
[1982] QB 84, [1981] 1 All ER 923, [1981] 2 WLR 554, [1982] 1 Lloyds Rep 27
England and Wales
Cited by:
CitedParry v Edwards Geldard (A Firm) ChD 1-May-2001
The court had to decide the measure of damages. The claimant had lost the opportunity to acquire without charge a milk quota. The claimant asserted an estoppel by convention. This failed. Also the judge had not properly allowed for the marriage . .
CitedWilson 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 . .
CitedValentine v Allen and others CA 4-Jul-2003
There was a claim in trespass arising from mistakes arising on the setting up of a small residential development. An easement necessary to the enjoyment of the plots sold off, was required over land no longer owned by the grantor at the time of the . .
CitedDun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
CitedGodden 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 . .
CitedWayling v Jones CA 2-Aug-1993
The plaintiff and defendant were in a homosexual relationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .
CitedStrover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
CitedNorwegian American Cruises A/S (formerly Norwegian American Lines A/S) v Paul Munday Ltd (The ‘Vistafjord’) 1988
A party may be precluded by an estoppel by convention from raising a contention contrary to a common assumption of fact or law (which could include the validity of a notice) upon which they have acted. . .
CitedStancliffe Stone Company Ltd v Peak District National Park Authority QBD 22-Jun-2004
The claimants sought a declaration. Planning permission had been confirmed for four mineral extraction sites by letter in 1952. In 1996, two were listed as now being dormant. The claimant said the letter of 1952 created on single planning permision . .
CitedTrustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedScottish and Newcastle Plc v Lancashire Mortgage Corporation Ltd CA 5-Jul-2007
The parties each had a charge over a property, and now disputed which had priority. The brewery appealed an order for rectification of the registers to reverse priority on the basis of an estoppel. The charge in their favour had been registered . .
CitedCity Connect Management Ltd v Telia International Carrier UK and Another TCC 30-Jul-2004
The parties sought the expenses incurred in negotiating a development contract which failed before the documents were signed. . .
CitedAJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .

Lists of cited by and citing cases may be incomplete.

Equity, Estoppel, Land, Estoppel

Leading Case

Updated: 11 November 2021; Ref: scu.180371

Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd): CA 4 Mar 1995

The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to mislead the plaintiff into making the relevant mistake, the plaintiff had in fact made it, and this was sufficiently unconscionable conduct on the part of the defendant to render it liable to rectification. The deliberate attempt to hide the other’s mistake made the contract unenforceable. An offer and acceptance of a land contract may not be by letter. Rectification may in certain circumstances be ordered, where there has been no common mistake, but one party has proceeded on a base which the other knew to be mistaken. Where A intends B to be mistaken as to the construction of a contract and diverts B’s attention from discovering the mistake by making false and misleading statements and B makes the mistake which A intends, then suspicion and not actual knowledge of the mistake is enough for rectification to be granted.
Stuart-Smith LJ said: ‘[W]here a false representation is made for the purpose of inducing the other party to adopt a certain course of conduct and the representation is such as to influence a person behaving reasonably to adopt that course of conduct, the court should infer, in the absence of evidence to the contrary, that the representation did have that effect.’ and
‘In the case of unilateral mistake, that is to say where only one party is mistaken as to the meaning of the contract, rectification is not ordinarily appropriate. This follows from the ordinary rule that it is the objective intention of the parties which determines the construction of the contract and not the subjective intention of one of them. Also, it would generally be inequitable to compel the other party to execute a contract, which he had no intention of making, simply to accord with the mistaken interpretation of the other party: see Olympia Sauna Shipping Co SA v Shinwa Kaiun Kaisha Ltd [1985] 2 Lloyds Rep. 364, 371 per Bingham J. But the court will intervene if there are ‘additional circumstances that render unconscionable reliance on the document by the party who has intended that it should have effect according to its terms:’ Spry, Equitable Remedies, 4th ed. (1990), p.599. The debate in this case turns on what amounts to unconscionable conduct.’

Stuart-Smith LJ, Evans LJ, Farquharson LJ
Times 04-Mar-1995, Independent 15-Mar-1995, [1995] 2 All ER 929, [1995] Ch 259, [1995] 26 EG 129
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited by:
CitedWell Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
CitedGeorge Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedColes and Others v William Hill Organisation Ltd ChD 18-Mar-1998
When agreeing an extension of an existing lease, the new lease by mistake included a break clause which had been intended by neither party. The tenant’s solicitors noticed the error in their client’s favour but did not mention it. The landlord only . .
CitedNorth 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 . .
CitedDaventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.79287