London Borough of Bromley v Morritt: CA 21 Jun 1999

The defendants appealed against orders relating to the construction of a sewage pipe through their garden under powers given under the Act. The defendant had later blocked the pipe and the authority sought to recover the costs of repair. He claimed that the pipe was a drain, not a sewer, and had therefore been laid unlawfully.
Held: Whether it was a sewer or a drain depended upon the intention at the time it was constructed, and not its current use. A sewer would serve more than one property. That had been the intention, and the judgment was correct. In a second appeal, the defendant had constructed a wall enclosing land, and claimed ownership by limitation. The land enclosed included land over which there was a public right of way, and accordingly no acquisition by adverse possession was possible.
Mummery LJ said: ‘In my judgment, this appeal does fail. On the judge’s finding of fact the land enclosed by the fence and the wall was part of the public highway. As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists. The only question is the exercise of discretion to make a mandatory order.’

Judges:

Swinton Thomas, Mummery LJJ

Citations:

[1999] EWCA Civ 1631, [1999] 78 P and CR D37

Statutes:

Public Health Act 1936 15(1)

Jurisdiction:

England and Wales

Citing:

CitedBeckenham Urban District Council v Wood 1896
The court considered at what point a drain became a sewer: ‘The general rule, as I understand, is, that where a drain receives the sewage of two or more houses it is a sewer; where it receives the sewage of one house only it may still remain a . .
Application for leaveLondon Borough of Bromley v l Morritt CA 20-Jul-1998
The defendant sought an extension of time to apply for leave to appeal. He had been ordered to remove a wall which the claimant said enclosed what was part of the highway, and which the defendant said he had acquired by adverse possession.

Cited by:

CitedSmith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
CitedSmith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Utilities

Updated: 21 January 2023; Ref: scu.146546

First National Bank Plc v Thompson: CA 25 Jul 1995

A charge executed before a purchase was ‘fed’ by a subsequent purchase and had priority. ‘Feeding the estoppel’ doctrine may apply to charges on registered land. The estoppel was fed by a later purchase without a clear recital of the title in the charge.

Citations:

Ind Summary 31-Jul-1995, Times 25-Jul-1995, Gazette 15-Sep-1995

Statutes:

Land Registration Act 1925

Jurisdiction:

England and Wales

Equity, Registered Land, Land

Updated: 21 January 2023; Ref: scu.80559

British Coal Corporation v Gwent County Council: CA 6 Jul 1995

Compensation for subsidence damage measured by cost of repair and re-instatement. Lands Tribunal has no general power to award interest on compensation.

Citations:

Times 18-Jul-1995, Independent 06-Jul-1995

Statutes:

Law Reform (Miscellaneous Provisions) Act 1934 3(1), Coal Industries Act 1975 2(4)(a)

Jurisdiction:

England and Wales

Land

Updated: 21 January 2023; Ref: scu.78618

Sir Lawrence Vaughan Palk, Baronet v Shinner: 25 May 1852

Under stat. 2 and 3 W. 4, c. 71, sa, 7, 8, the time during which the servient tenement has been under lease for a term exceeding three years is to be excluded from the computation of a forty years’ enjoyment, but not from the computation of an enjoyment for twenty years.

Citations:

[1852] EngR 612, (1852) 18 QB 568, (1852) 118 ER 215

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Limitation

Updated: 20 December 2022; Ref: scu.295735

Tolson v Watson: 6 May 1837

In formedon the tenant having demanded a view after a general imparlance, the demandant issued a writ of petit cape. Held, irregular.

Citations:

[1837] EngR 722, (1837) 3 Bing NC 770, (1837) 132 ER 607 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 20 December 2022; Ref: scu.313839

Mortell, Regina (on The Application of) v Secretary of State for Community and Local Government and Others: CA 29 Oct 2009

Citations:

[2009] EWCA Civ 1274

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal FromMortell v Secretary of State for Communities and Local Government Admn 12-Dec-2008
The claimant sought to quash a Compulsory purchase order for certain properties in Oldham. . .
Lists of cited by and citing cases may be incomplete.

Land, Local Government

Updated: 20 December 2022; Ref: scu.381651

Piercy v Gardner: 5 May 1837

A writ of intrusion is maintainable by one in remainder for an intrusion made after the determination of an estate pur autre vie. 2 A demandant who claims under a devise may maintain the writ. 3. The limitation of time for suing out the writ is fifty years.

Citations:

[1837] EngR 707, (1837) 3 Bing NC 748, (1837) 132 ER 599

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 20 December 2022; Ref: scu.313824

Risegold Ltd v Escala Ltd: CA 28 Oct 2008

The parties disputed the extent of an easement granted in a transfer, and in particular whether the works for which the entry was to be used amounted to ‘rebuilding or renewal’ of the property.
Held: The easement had been granted against a background where it had been anticipated that the building would require demolition. The works proposed fell within the clause.

Judges:

Mummery LJ, Arden LJ, Keene LJ

Citations:

[2008] EWCA Civ 1180

Links:

Bailii

Jurisdiction:

England and Wales

Land, Construction

Updated: 20 December 2022; Ref: scu.277281

Kind, Regina (on the Application of) v Secretary of State for Environment, Food and Rural Affairs: Admn 27 Jun 2005

The applicant challenged a refusal to confirm a draft order recognising a road used as a path as a byway open to all traffic.
Held: The challenge succeeded. The path had been shown under the 1948 Act as a road used as a public path. The council had reclassified it as a bridleway, which did not exclude its use also as a public right of way for vehicular purposes. The Secretary of State had refused to recognise the order saying that the vehicular rights had been extinguished by the earlier re-classification. However the proviso in the 1949 Act had not been repealed, and the re-classification did not defeat the vehicular rights.

Judges:

Lightman J

Citations:

[2005] EWHC 1324 (Admin), Times 30-Aug-2005, [2005] 3 WLR 616, [2006] QB 113

Links:

Bailii

Statutes:

Countryside Act 1968, National Parks and Access to the hcountryside Act 1948, Wildlife and Countryside Act 1981

Jurisdiction:

England and Wales

Citing:

CitedRegina v Secretary of State for the Environment ex parte Hood CA 1975
The court considered the nature of the 1949 Act: ‘The object of the statute is this: it is to have all our ancient highways mapped out, put on record and made conclusive, so that people can know what their rights are. Our old highways came into . .
CitedRegina v Secretary of State for the Environment ex parte Riley 1990
The court considered the effect of a reclassification of a road under the 1968 Act.
Held: Reclassification as a bridleway left open the possible existence of public vehicular rights since the 1968 Act had left the effect of the proviso in . .
CitedMarlene Peggy Masters v Secretary of State for Environment, Transport and Regions CA 31-Jul-2000
Where a public byway was defined as such under the Act, it was intended that the highway should be shown as such on the definitive map. The fact, if it was such, that a byway had fallen into disuse was not an indication that it should be omitted . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 20 December 2022; Ref: scu.227937

Healey v Brown: ChD 25 Apr 2002

The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: Subject to the 1989 Act the arrangement was enforceable. As to the 1989 Act: ‘section 2(1) deprives any non-compliant agreement of the legal status and hence effect of a binding contract, where section 40 of the 1925 Act (and the predecessor Statute of Frauds) had simply rendered such an agreement unenforceable.’ and ‘as a matter of both principle and authority, that the agreement embodied in mutual non-revocable wills containing a bequest of land is a contract for the disposition of land.’ If section 2 did apply the documents would not satisfy it, and ‘section 2(1) of the 1989 Act applies so as to deprive the mutual will compact of any legal effect as a contract. The significance of this conclusion lies in the fact that the mutual wills doctrine is anchored in contract, and presupposes a legally binding agreement.’ However the doctrine of part performance could in this case be applied to impose a trust on the defendant.

Judges:

David Donaldson QC HHJ

Citations:

[2002] 19 EG 147, [2002] EWHC Ch 1405, (2002) 19 EG 147

Links:

Bailii

Statutes:

Law Reform (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

CitedDufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
CitedRe Heys 1914
Any will, even when stated to be non-revocable, is at law by its nature revocable by a testator, and even where the testator has agreed contractually with another person not to revoke it, a subsequent will in breach of any such agreement will . .
CitedGray v Perpetual Trustee Co Ltd PC 12-Jun-1928
The Board considered a claim that wills had been mutual. Viscount Haldane said: ‘The case before us is one in which the evidence of an agreement, apart from that of making the wills in question, is so lacking that they are unable to come to the . .
CitedBirmingham v Renfrew 11-Jun-1937
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . .
CitedHorton v Jones 1935
(High Court of Australia) A claim by plaintiff against the personal representatives of her ex-employer for breach of an oral agreement by him to make a will leaving her property which would include interests in land failed on the ground that it fell . .
CitedGoodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
CitedIn re Dale dec’d ChD 1994
The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second . .
CitedIn re Cleaver dec’d, Cleaver v Insley ChD 1981
Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of . .
CitedMaddison v Alderson HL 1883
The requirement of the doctrine of part performance is that the acts of part performance relied upon must be ‘referable’ to the contract sued on. The principle underlying the doctrine of part performance was expressed by Lord Selborne: ‘In a suit . .
CitedLloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
CitedOttaway v Norman ChD 1971
Proof required for mutual wills claim
The testator devised his house to a Miss Hodges intending that she should dispose of the property in her will to specific individuals. He communicated his intention to her and she agreed to it. After the testator’s death, Miss Hodges changed her . .

Cited by:

CitedLegg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Land, Equity

Updated: 12 December 2022; Ref: scu.246958

Clearbrook Property Holdings Limited v Verrier: ChD 1974

The issue was whether a caution registered in the Land Registry by a plaintiff purchaser who was claiming specific performance of an agreement for sale should be vacated. The effect of the vacation of the caution was that the plaintiff’s claim for specific performance would have been put in a position in which it was bound to fail in limine.
Held: To redress the unfairness to the defendant vendor, whose property was unsaleable while the caution remained registered, the caution should be vacated on the plaintiffs being given the opportunity to make an immediate application for an interlocutory injunction restraining the defendant from dealing with the land in any way inconsistent with the plaintiff’s claim pending the trial, which would not be opposed by the defendant, and the defendant getting a cross undertaking in damages.

Judges:

Templeman J

Citations:

[1974] 1 WLR 243

Jurisdiction:

England and Wales

Cited by:

ApprovedTiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
CitedNugent v Nugent ChD 20-Dec-2013
The court was asked whether the court has, following the the 2002 Act, an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a . .
CitedNugent v Nugent ChD 20-Dec-2013
The court was asked whether the court has, following the the 2002 Act, an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Registered Land

Updated: 12 December 2022; Ref: scu.243395

Jacques v Secretary of State for the Environment: CA 1995

The Inspector had found that the landowner had, by overt acts directed at users of the way in question, including the erection of locked gates and of fencing and of notices, disproved any intention on his part to dedicate.
Held: The landowner’s appeal succeeded. Laws J reflected on the conjunction in the statutory scheme of use as of right, in the sense of use in the belief of such right, and the sufficiency of evidence on behalf of a landowner of an intention not to dedicate, and said: ‘Quite plainly, the second part of section 31(1) imported a further requirement. It meant that even if use of the required quality was proved, the status of right of way would not be established if the landowner demonstrated an intention not to dedicate. The logical relationship between the two parts of the subsection entailed that proof of an intention not to dedicate could be constituted by something less than proof of facts which had to have made it clear to the public that they had no right to use the way: otherwise, once the interested public had established their case under the first part of the subsection, there would be no room for the operation of the second part. That was not a very satisfactory state of affairs. It was plain that the landowner had to disprove an intention to dedicate by overt acts directed to the members of the public in question, but equally plain that they need not actually bring home to the public that there was no right to use the way. He could only conclude that any sufficiently overt act or series of acts indicating an intention to keep the way private would be enough for the landowner’s purposes in relation to the second part of the subsection, though they did not bring home to the public his objection to their using his land.’ The requirement for actual dedication was like one from Alice in Wonderland.

Judges:

Laws LJ

Citations:

[1995] JPL 1031

Statutes:

Highways Act 1980 31(1) 31(2)

Jurisdiction:

England and Wales

Citing:

Appeal fromJacques v Secretary of State for the Environment QBD 8-Jun-1994
Public right of way must be established by enjoyment as of right for 20 years. . .

Cited by:

CitedGodmanchester Town Council, Regina (on the Application Of) v Secretary of State for the Environment Food and Rural Affairs CA 19-Dec-2005
The court considered whether a pathway had become a public highway.
Held: ‘The main question for the Court is whether sufficiency of evidence of an intention not to dedicate necessary to satisfy the proviso requires, as a matter of law, that . .
CriticisedGodmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
CitedRegina v Secretary of State for Wales Ex Parte Emery CA 9-Jul-1997
The applicant had sought to have included in the definitive map, a local footpath, and now challenged refusal to include it.
Held: A public right of way may be created by dedication or it may be deemed after actual use by the public over . .
CitedJones v Welsh Assembly Government Admn 15-Dec-2008
The County Council had made an order under section 53, establishing a footpath over the claimant’s land. The land owner now appealed. The court had previously quashed the inspector’s decision on the basis that he had not allowed for the interruption . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 December 2022; Ref: scu.236555

National and Provincial Building Society v Ahmed: CA 1995

A mortgagor’s equity of redemption is extinguished when the mortgagee, in the exercise of his power of sale, enters into a contract of sale of the mortgaged property.
Millett LJ said: ‘The purpose of making an order under section 36 of the Administration Act 1970 is to enable a mortgagor who has fallen into arrears with the payment of the mortgage instalments to resume his payments and to pay off the arrears with a view to the ultimate redemption of the mortgage by instalments in the ordinary way. But that result can no longer be achieved once the mortgagor’s equity of redemption has been extinguished by the exchange of contracts of sale of the mortgaged property by the mortgagee to a purchaser. Of course, if the order for possession had not been executed so that the court still retained jurisdiction to suspend it, and the mortgagor or his tenants were in possession at the date of the contract for sale so that the purchaser had notice of the mortgagor’s rights, the mortgagee would not be able to rely upon the contract to defeat the mortgagor’s application. But that is not the present case.’

Judges:

Millett, Russell and Rose LJJ

Citations:

[1995] 2 EGLR 127

Statutes:

Administration of Justice Act 1970 36

Jurisdiction:

England and Wales

Cited by:

CitedRopaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
CitedScott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 December 2022; Ref: scu.230374

Harrow London Borough Council v Donohue: CA 1995

The plaintiff complained at the defendant’s garage, half of which had been built on the plaintiff’s land. The judge had awarded damages in lieu of a mandatory injunction for its removal. The Council appealed.
Held: Where a landowner had been ‘totally dispossessed by the defendant’s ‘encroaching building’ the plaintiff was entitled ‘as of right to a mandatory order’ although it suggested that the court, depending on the circumstances, might ‘well retain a limited discretion’.

Judges:

Waite LJ, Hirst LJ, Sir Stephen Brown

Citations:

[1995] 1 EGLR 257

Jurisdiction:

England and Wales

Cited by:

CitedFeakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 12 December 2022; Ref: scu.237729

Castle Phillips Finance v Piddington: CA 1995

The wife charged the matrimonial home to Lloyds to secure the husband’s indebtedness. The husband subsequently agreed with Barclays for the indebtedness to be refinanced. The husband and an accomplice forged her signature on a transfer of the matrimonial home into joint names and on a remortgage. When Barclays pressed for repayment, the husband applied to the claimant, which agreed to make a loan. The claimants’ loan was applied in paying off the husband’s indebtedness to Barclays, including that part of Barclays’ indebtedness which arose from its having paid off Lloyds. The husband defaulted in repaying the claimant’s loan, and the claimant commenced proceedings against the husband and the wife claiming possession of the matrimonial home on the basis that it was entitled to be subrogated to Barclays. The judge held that Barclays was entitled by subrogation to the Lloyds charge and that the wife was bound in respect of so much of the secured indebtedness under the Barclays charge as derived from the payment by Barclays to discharge the Lloyds charge. She appealed, saying the conditions for subrogation were not satisfied. The claimant contended that it was entitled to be subrogated to the Lloyds charge in respect of the sum paid to Barclays out of the claimant’s loan. Counsel for the claimant submitted that, under the principle of subrogation, the claimant was entitled to step into the shoes of Barclays, which (to the extent of andpound;4735.39) was in turn entitled to step into the shoes of Lloyds and thus to enforce the Lloyds charge.
Held: That submission was accepted. Subrogation ’embraces more than a single concept in English law’. ‘I do not think it is open to this court to reinterpret the Butler v. Rice line of authorities in the way which [counsel for the wife] would have us do in the light of the approval of the broad principle laid down in such cases and approved in decisions binding on us. I feel it right to add that for my part, given that the court in a case like the present is having to choose between allocating a loss, either to the innocent mortgagor or to the innocent provider of the moneys, I do not regard it as unjust that in accordance with Butler v. Rice the loss should fall on the mortgagor who otherwise takes a windfall benefit. I say that despite the fact that, as [counsel for the wife] rightly stressed, the wife in the present case had no contract with [the claimant], was not the principal debtor, knew nothing of the transaction under which [the claimant] lent money to the husband and has never ratified the discharge of the mortgage on the property. [Counsel for the wife] also advanced the further argument that it would be an unwarranted extension of the Butler v. Rice principle if [the claimant] were to be held entitled to step into the shoes of Lloyds by what he called sub-subrogation. For my part, I see no conceptual difficulty in this. As the judge held, Barclays was entitled to the Lloyds security by subrogation when Barclays discharged the debt to Lloyds, thinking that it was to obtain an effective security for its own money. When [the claimant] discharged the debt to Barclays, thinking that it was obtaining an effective security for its own money, it became entitled to the same security as Barclays [had]. I would, therefore, hold that by subrogation [the claimant] became entitled to the same security as that held by Barclays, [that] is to say the Lloyds charge.’ The court rejected the argument advanced on behalf of the claimant based on imputed consent on the part of the wife.

Judges:

Sir John May, McCowan LJ, McCowan LJ

Citations:

[1995] 1 FLR 783

Jurisdiction:

England and Wales

Citing:

CitedButler v Rice 1910
The wife owned a Bristol property and a Cardiff property subject to a andpound;450 charge in favour of a bank with whom the title deeds had been deposited. The husband asked the plaintiff to lend him andpound;450 to pay off the mortgage. The . .
CitedEquity and Law Home Loans Ltd v Prestidge CA 1992
A house was bought in the name of one partner in an unmarried couple. It was subject to a mortgage, and the non-owner contributed a capital sum. The landowner later remortgaged for a larger sum, but without the partner’s consent. The landowner then . .
CitedOrakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .

Cited by:

CitedUCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 12 December 2022; Ref: scu.190506

Rex v Montague: 1825

The Commissioners of Sewers might have the power to extinguish public rights of navigation if they found that it would be for the benefit of the whole level.

Judges:

Bayley J

Citations:

Unreported 1825

Jurisdiction:

England and Wales

Cited by:

CitedRowland v The Environment Agency ChD 19-Dec-2002
Public rights of Navigation have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The claimant sought a declaration that rights of navigation over that . .
Lists of cited by and citing cases may be incomplete.

Utilities, Land

Updated: 12 December 2022; Ref: scu.187534

CIN Properties Ltd v Rawlins: CA 1995

Young men were barred from a shopping centre. The private company owner considered that their behaviour was a nuisance.
Held: The owner had the right to determine any licence which the applicants might have had to enter the Centre. The local authority had not entered into any walkways agreement with the company which would have dedicated the walkways or footpaths as public rights of way, and which would have given the local council the power to issue bye-laws regulating use of those rights of way. Nor was there any basis for finding an equitable licence.

Judges:

Lord Phillips

Citations:

[1995] 2 EGLR 130

Statutes:

Highways Act 1971 18(1), Highways Act 1980 35

Jurisdiction:

England and Wales

Cited by:

CitedAppleby and Others v The United Kingdom ECHR 6-May-2003
The claimants sought to demonstrate against a development in their home town. The respondents who owned the shopping mall which dominated the town centre, refused to allow them to demonstrate in the mall or to distribute protesting leaflets. The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 December 2022; Ref: scu.182210

Payne and Woodland v Mayor and Burgesses of London Borough of Barnet: CA 22 May 1997

The sale of a council house imposed an additional duty on a local authority to disclose known structural defects to buyers.

Citations:

Times 24-Jun-1997, [1997] EWCA Civ 1752, (1998) 10 Admin LR 185, (1998) 30 HLR 295, (1998) 76 P and CR 293

Links:

Bailii

Statutes:

Housing Act 1985

Jurisdiction:

England and Wales

Citing:

CitedBlake and Another v Barking and Dagenham London Borough Council QBD 1-Nov-1996
A Local Authority has no duty of care for the correctness of a valuation undertaken for a right to buy transaction. It was not just or reasonable to impose a duty of care on a local authority in connection with its statement of its opinion as to . .
Lists of cited by and citing cases may be incomplete.

Land, Housing

Updated: 09 December 2022; Ref: scu.142148

Chattey and Another v Farndale Holdings Inc and others: CA 11 Oct 1996

The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal failed and another succeeded. ‘the circumstances in which a purchaser’s lien will arise are not limited to those in which the contract is or has been specifically enforceable but include those in which there is or has been a right to call for the legal estate whether presently, in the future or conditionally so as to give rise to the equitable interest or estate. . . ‘
and ‘It is not disputed that the purchaser’s lien arises by operation of law from the contract unless it is modified or excluded by express agreement of the parties or by necessary implication from the contractual arrangements the parties have entered into. The lien so arising is an unqualified equitable right. In common with all other equitable rights it is capable of being subordinated to the rights of a subsequent purchaser for value of a legal estate without notice of the equitable right. But that inherent weakness is no reason to modify the nature of the right itself. ‘

Citations:

[1996] EWCA Civ 696, [1997] 1 EGLR 153, (1998) 75 P and CR 298, [1997] 06 EG 152, [1996] NPC 136

Links:

Bailii

Statutes:

Land Registration Act 1925 70(2)

Jurisdiction:

England and Wales

Citing:

CitedRose v Watson HL 7-Mar-1864
The buyer had paid deposits under an unconditional contract for the purchase of land induced by the misrepresentations of the seller. On discovering the falsity of the representations the buyer rescinded the contract and successfully resisted a . .
CitedLondon and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
CitedSainsbury v O’Connor CA 1991
Sainsbury and a Belgian company held 75% and 25% respectively of a joint venture company. Sainsbury had an option, not exercised for 5 years, to acquire the 25% holding. The option was never exercised and was cancelled. The court was asked whether . .
CitedHewitt v Court 15-Mar-1983
Austlii (High Court of Australia) Lien – Equitable – Contract for provision of work, labour and materials – Progress payments – Whether lien obtained over unfinished object – Whether dependent upon right to . .
CitedLevy v Stogdon 1898
Specific performance of a contract by an assignees of the purchaser was dismissed on the grounds of delay, but his claim for a lien was upheld. . .
CitedWhitbread and Co Ltd v Watt CA 1902
The buyer agreed to buy a house when the developer had finished 300 houses on the site, but now sought return of his deposit.
Held: The developer’s appeal against an order for the return of the deposit failed.
Williams LJ said: ‘The lien . .
CitedWhitbread and Co Ltd v Watt ChD 1901
The purchaser contracted to purchase a plot on a building estate belonging to the vendor. The contract provided that ‘the purchase is to be completed as soon as 300 houses shall have been erected on the said estate’. Thus the contract was one under . .
CitedMiddleton v Magnay 1864
The vendor had agreed to grant a 21 year lease over certain land. In fact he only had an eight year lease in half the land. When the contract went off on account of the inability of the vendor to grant the lease contracted for the purchaser claimed . .
CitedAshburn Anstalt v Arnold (2) CA 25-Feb-1988
Various leases of properties had been granted. Legal and General occupied the property under an arrangement under which they paid no rent. The landlord sought possession, saying that the agreements were licences not tenancies because of the absence . .
CitedLyus v Prowsa Developments Ltd ChD 1982
The plaintiffs contracted to buy a plot of registered land with a house to be built on it. The developer had charged the estate as a whole to a bank to secure the development finance. The developer became insolvent and the bank sold the estate as . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Registered Land

Updated: 09 December 2022; Ref: scu.140563

Corporation of Glasgow v M’Ewan: HL 23 Nov 1899

The Glasgow Waterworks Commissioners were infeft in a servitude, exclusive and perpetual, of way-leave through certain lands for the purpose of constructing and maintaining a conduit. Held ( aff. judgment of the First Division) that the Commissioners were liable for assessment as heritors for the upkeep of the manse of the parish through which the conduit passed.

Judges:

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

Citations:

[1899] UKHL 620, 37 SLR 620

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 09 December 2022; Ref: scu.631843

Windsor-Clive and Others v Rees and Another: ChD 18 Apr 2019

Claim for injunction to prevent interference with certain claimed rights over land.
Held: Some of the activities that the landlord proposed to carry out were permitted under the terms of the tenancy agreements; but others were not.

Judges:

Keyser QC HHJ

Citations:

[2019] EWHC 1008 (Ch), [2019] 4 WLR 74, [2019] WLR(D) 270

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

CitedRainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .

Cited by:

Appeal fromRees and Another v Windsor-Clive and Others CA 1-Jul-2020
Reservation Derogation construed normally
Construction of tenancy agreement – correct approach to reservations made in favour of the landlord. The landlord required access to the tenanted farm to allow survey work anticipating development of his adjoining land. The tenant now appealed . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Agriculture

Updated: 09 December 2022; Ref: scu.636141

Fenland District Council v Sheppard and Others: ChD 3 Nov 2011

Short but somewhat difficult point under the provisions governing the vesting of disclaimed property of a bankrupt’s estate under section 320 of the Insolvency Act 1986

Judges:

Roth J

Citations:

[2011] 45 EG 96 (CS),, [2012] 2 EG 68, [2011] EWHC 2829 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Land, Insolvency

Updated: 09 December 2022; Ref: scu.448120

The Lyttelton Times Company Limited v Warners Limited: PC 31 Jul 1907

(New Zealand) Premises had been leased for use as a printing house, including printing plant and machinery, and the landlords occupied the upper floors for use as bedrooms for their hotel. The landlords then sought an injunction and damages in respect of the noise and vibration caused by the printing business.
Held: While the plaintiffs might have the intention of having reasonably quiet bedrooms, the defendant’s intention was that they should be able to print. The lessor had impliedly reserved the right to use the ground floor as a printing works, notwithstanding the noise generated by that use. A right to emit noise can amount to an easement.
Lord Loreburn said that: ‘If A lets a plot to B, he may not act so as to frustrate the purpose for which in the contemplation of both parties the land was hired. So also if B takes a plot from A, he may not act so as to frustrate the purpose for which in the contemplation of both parties the adjoining plot remaining in A’s hands was destined.’

Judges:

Lord Loreburn LC

Citations:

[1907] UKPC 47, [1907] AC 476, [1904-07] All ER 200

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedPwllbach Colliery Co v Woodman HL 1915
Whether an easement may be created by implication depends on the circumstances under which it is said to have been made. The law implies a grant of such easements as may be necessary to give effect to the common intention of the parties to a grant . .
CitedCoventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
CitedRees and Another v Windsor-Clive and Others CA 1-Jul-2020
Reservation Derogation construed normally
Construction of tenancy agreement – correct approach to reservations made in favour of the landlord. The landlord required access to the tenanted farm to allow survey work anticipating development of his adjoining land. The tenant now appealed . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 December 2022; Ref: scu.419856

McGuane v Welch: CA 11 Jul 2008

Appeal from a decision applying the doctrines of proprietary estoppel and constructive trust to dealings between the parties about a long lease of residential property acquired by a council tenant in the exercise of his statutory right to buy.

Citations:

[2008] EWCA Civ 785

Links:

Bailii

Jurisdiction:

England and Wales

Estoppel, Trusts, Land

Updated: 09 December 2022; Ref: scu.270704

Universal Permanent Building Society v Cooke: CA 1951

The mortgagor agreed to buy a shop with living accommodation above. She let the flat to her sister before completion, and by the date of the mortgage, the sister was in possession. After default, the lender sought possession under the mortgage, but was only granted possession subject to the tenancy. The mortgage was granted the day after the completion of the purchase.
Held: With no evidence to the contrary, there was an interval between the conveyance and the mortgage during which time the tenant’s tenancy by estoppel became a tenancy at law with priority over the mortgage. The estoppel was fed by the acquisition of the legal estate.

Judges:

Jenkins LJ, Lord Evershed MR

Citations:

[1952] Ch 95, [1951] 2 All ER 893, [1951] 2 TLR 962

Jurisdiction:

England and Wales

Citing:

DistinguishedCoventry Permanent Economic Building Society v Jones ChD 1951
The contracting purchaser of a property agreed, prior to completion, to let the ground floor of the property to two tenants. She subsequently borrowed a sum of money from the plaintiffs to enable her to complete the purchase. On completion, she . .

Cited by:

CitedScott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.

Land, Estoppel, Landlord and Tenant

Updated: 09 December 2022; Ref: scu.259705

Oxfordshire County Council v Oxford City Council and others: HL 24 May 2006

Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a non-statutory enquiry, and sought a declaration from the court as to the status of the land.
Held: (Lord Scott and Baroness Hale dissenting in part) The claimant’s appeal succeeded in part. Registration would protect the rights sought. It is a necessary implication that land conclusively presumed to be a village green should be subject to the rights which the statute treated as creating a village green, namely the right to indulge in sports and pastimes. The only period upon which a claim could have relied was a period of upwards of 20 years continuing up to and ending with the date of the application. The word ‘becomes’ in section 13(b) means ‘becomes on registration’.
Baroness Hale said: ‘Unlike academic textbook writers and examiners, the courts do not decide legal questions in a vacuum. They know that, while hard cases may indeed make bad law, the particular facts of the case before them do cast a particularly bright light upon the legal issues and may throw up important questions which no rehearsal of the legal arguments in the abstract can ever do. Why, after all, do the best legal examination papers require candidates to answer problems based upon a precise, though imaginary set of facts? Because that is the way in which our case law has developed over the centuries. It is only legislators who make legal rulings in general and without reference to a specific set of facts.’ and ‘as an academic lawyer and examiner of students, I would see nothing wrong in essaying an answer to those questions, secure in the knowledge that if I turned out to have overlooked some important consideration which emerged in a later case, a court could and would ignore my views. As a judge, I see every objection to answering those questions. The fact that all parties and all courts have so far proceeded on the basis that we both can and should answer them does not to my mind outweigh the formidable objections to our doing so. ‘

Judges:

Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond

Citations:

Times 31-May-2006, [2006] UKHL 25, Gazette 08-Jun-2006, [2006] 2 WLR 1235, [2006] 2 AC 674, [2006] 22 EG 177, [2006] NPC 62, [2006] BLGR 713, [2006] 2 EGLR 95, [2006] 4 All ER 817

Links:

Bailii

Statutes:

Commons Registration Act 1965 13(b), Registration (New Land) Regulations 1969 (SI 1969/1843), Countryside and Rights of Way Act 2000 98

Jurisdiction:

England and Wales

Citing:

CitedAbbott v Weekly 1665
A custom that ‘the inhabitants of the vill, time out of memory, and had used to dance there at all times of the year at their free will, for their recreation’ was held to be a good custom, and the land was established as a common. . .
CitedFitch v Rawling 1795
A common was claimed at Steeple Bumpstead in Essex for ‘all kinds of lawful games, sports and pastimes . . at all seasonable times of the year.’ including cricket.
Held: Rights of common over land can include the right of local inhabitants to . .
CitedDyce v Lady James Hay HL 1852
A claim was made for a prescriptive right for all the Queen’s subjects ‘to go at all times upon the . . appellant’s property . . for the purpose of recreation’.
Held: Leonards LC said that the right claimed was one that ‘cannot be maintained’ . .
CitedMounsey v Ismay 20-Jan-1863
The inhabitants of Carlisle claimed a custom of holding horse races in May over land at Kingsmoor. The landowner’s counsel protested that the fields were arable land.
Held: Martin B: ‘It must be assumed that the custom has existed since the . .
CitedLancashire v Hunt 1894
A right of common was accepted over land to play cricket and other games on 160 acres of Stockbridge Common Down. The owner applied to prevent a local trainer from exercising his horses over the land. The trainer claimed that he had a customary . .
CitedForbes v Ecclesiastical Commissioners for England 1872
The purpose of inclosure under the Act was after all to extinguish manorial rights of common over the land inclosed, so that it could be at the free disposal of the owner, but the Act did not extinguish customary rights. . .
CitedVirgo v Harford 11-Aug-1892
A right of common was successfully claimed to the right to play football, rounders and cricket on 65 acres of open land on a hill outside Walton-in-Gordano in Somerset. . .
CitedHammerton v Honey CA 1876
A claim was made for a local custom of common rights over Stockwell Green.
Held: The claim failed. The evidence did not show that use of the green was confined to inhabitants of Stockwell. Sir George Jessel MR said: ‘A custom is local Common . .
CitedEdwards v Jenkins 1896
Application was made to register a customary right over land.
Held: The ‘locality rule’ applied. The inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land . .
CitedNew Windsor Corporation v Mellor CA 1975
The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval . .
CitedIn re Turnworth Down Dorset 1978
The only effect of non-registration of rights of common was to deprive the inhabitants of the benefit of the conclusive presumption furnished by section 10 of the Act and to require them to prove the existence of the rights in question. The land was . .
CitedRegina v Suffolk County Council Ex Parte Steed and Steed Admn 1995
Judicial review was sought of the Council’s decision to refuse to register a park as a Town or Village Green.
Held: Carnwath J looked at the procedure to be followed by a council receiving an application for registration of commons right: ‘it . .
CitedRegina v Suffolk County Council Ex Parte Steed and Another CA 2-Aug-1996
Customary rights over land were not defeated by failure to register as common. ‘As of right’ meant that the right must be exercised in the belief that it is a right enjoyed by the inhabitants of the village to the exclusion of all other people. ‘it . .
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: . .
CitedBeresford v The Government of the Commonwealth of Australia Admn 13-Oct-2005
The defendant appealed against an order for his extradition, saying that the request was defective in three respects, and that there was a bar to extradition in that, due to the passage of time since the alleged abuse is said to have taken place, it . .
CitedRegina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Disapproved in partCheltenham Builders Ltd , Regina (on the Application of) v South Gloucestershire District Council Admn 10-Nov-2003
A claim was made for the review of a decision of the Council to amend the Register of Town and Village Greens (TVG).
Held: The registration of the TVG was manifestly flawed and could not stand whether under section 14 or by way of judicial . .
CitedMinistry of Defence v Wiltshire County Council 3-May-1995
The court considered that the time period of twenty years necessary to establish a right of common under the Act was the period ending with the date of the application.
Held: The court rectified the register under section 14 so as to remove . .
CitedRegina v Norfolk County Council ex parte Perry Admn 19-Dec-1996
The period of twenty years required to establish a common under the Act was the period up to the date of the application. . .
At first instanceOxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
CitedOxfordshire County Council v Oxford City Council and Another CA 24-Feb-2004
Application was made to register the ‘trap grounds’ as a village green.
Held: Carnwath LJ: ‘The 1965 Act created no new legal status, and no new rights or liabilities other than those resulting from the proper interpretation of section 10. . .
CitedFitch v Fitch 1798
The defendants had trampled the grass on a common which the owner had mowed, thrown the hay about and mixed some of it with gravel.
Held: The court considered the rights arising from land being declared to be a common: ‘The inhabitants have a . .
CitedRegina (Laing Homes Ltd) v Buckinghamshire County Council Admn 8-Jul-2003
Land was used for ‘low-level agricultural activities’ such as taking a hay crop at the same time as it was being used by the inhabitants for sports and pastimes.
Held: The Act was not intended to prevent the owner using the land in a way which . .
DisapprovedHumphreys v Rochdale Metropolitan Borough Council Admn 18-Jun-2004
Acts of grazing and fertilising by the owner which would have contravened the 1857 and 1876 Acts if the land had been a village green at the time, prevented the land from satisfying the section 22 definition. . .
CitedJ A Pye (Oxford) Ltd v The United Kingdom ECHR 15-Nov-2005
The claimants had been the registered proprietors of land, they lost it through the adverse possession of former tenants holding over. They claimed that the law had dispossessed them of their lawful rights.
Held: The cumulative effect of the . .
CitedBell v Wardell 1740
The defendant argued in defence to a claim of trespass to land that there was a customary right for the inhabitants of the town to walk and to ride over a close of arable at all seasonable times.
Held: The claim was bad, because the defendant . .
CitedHall v Nottingham 1875
The parties sought to establish a customary right to enter on land, erect a maypole and to dance around it, and otherwise to enjoy the land for innocent recreation at any time.
Held: The claim was good. A custom might be understood as a local . .
CitedMillechamp v Jordan 1740
A claim was made that land was subject to a customary right for recreation.
Held: The right would be limited to ‘legal and reasonable times of year’ so as not to allow the user to deprive the landowner of all profits of the land. . .
CitedLockwood v Wood 1844
A customary right over land becomes in effect a local law. . .
CitedDelaney v Staples HL 15-Apr-1992
The claimant had been dismissed but had been given no payment in lieu of notice. She claimed to the Industrial Tribunal that this was an unlawful deduction from her wages and that therefore the Industrial Tribunal had jurisdiction.
Held: The . .
CitedBritish Amusement Catering Trades Association v Westminster City Council HL 1988
The defendant operated an amusement arcade which provided video amusement games. The authority required a licence saying that it was an ‘exhibition of a moving image’. The Association appealed.
Held: A video amusement game was not within the . .
CitedMercer v Denne 1904
Fishermen claimed a customary right to spread their nets out to dry on land owned by the plaintiff at all seasonable fishing times.
Held: The activity was a good and valid custom, even though it was not a right for recreational purposes but . .
CitedHampshire County Council v Milburn HL 1991
The 1965 Act ‘was passed to give effect to the recommendations of the Royal Commission so far as registration was concerned. The Act of 1965 did not confer any general public right of access over common land and did not set up the machinery for the . .
CitedRoyal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
CitedGouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
CitedVictor Chandler International v Commissioners of Customs and Excise and another CA 8-Mar-2000
A teletext page can be a document for gaming licensing purposes. A bookmaker sought to advertise his services via a teletext page. His services were not licensed in this country, but the advertisements were. It was held that despite the . .
CitedAbbott v Minister for Lands PC 30-Mar-1895
(From the Supreme Court for New South Wales) When considering what was a ‘vested right’ for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
CitedThe Home Office v Wainwright and Wainwright CA 20-Dec-2001
The claimants were awarded damages, following the way they were searched on seeking to enter prison on a visit. The Home Office appealed. They were asked to sign a consent form, but only after the search was nearly complete. They were told the . .
MentionedMercer v Denne CA 1905
The court was asked whether the custom for fishermen to spread their nets to dry upon a privately owned beach, if otherwise established, could apply to land added by accretion to land over which it could be shown that the custom existed.
CitedIn Re S (Hospital Patient: Court’s Jurisdiction) CA 6-Mar-1995
The carer of S sought a declaration that S’s wife and son were not entitled to remove him to Norway.
Held: The court may try an issue as to the patient’s care as between rival claimants as carers. It should not tightly restrict list of carers . .
CitedIn re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
CitedBrocklebank v Thompson 1903
Parishioners sought to assert as a common right the right to walk across the local manor to the local church.
Held: Rights which have been long enjoyed, and in the absence of evidence that the enjoyment is recent only, are deemed to have been . .

Cited by:

CitedBetterment Properties (Weymouth) Ltd v Dorset County Council ChD 2-Mar-2007
The company sought an order removing some 46 acres of land from designation as a village green. The claimant sought the amendment of the register. The parties disputed what evidence beyond that available to the committee making the decision should . .
CitedLewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
CitedGlenn and Co (Essex) Ltd), Regina (on The Application of) v HM Revenue and Customs Admn 18-Jun-2010
The company objected to the search of its offices and removal by the defendant of its computers, the officers having entered without any warrant purporting to use powers under the 1989 Act.
Held: The request for judicial review failed. The . .
CitedPaddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
CitedAdamson and Others v Paddico (267) Ltd SC 5-Feb-2014
Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
Held: The appeal were solely as to . .
CitedNewhaven 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 . .
CitedNewhaven 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. . .
CitedNewhaven Port and Properties Ltd, Regina (on The Application of) v Secretary of State for The Environment Food and Rural Affairs CA 14-Jun-2013
. .
CitedNewhaven 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 . .
CitedLittlejohns, Regina (on The Application of) v Devon County Council and Another Admn 24-Mar-2015
The claimants sought judicial review of the refusal by the defendants to register rights of common in certain lands under the 2006 Act. The defendants said that the rights asserted did not fall within the scope of transitional provisions in the 2006 . .
CitedLittlejohns and Another v Devon County Council and Another CA 6-May-2016
Appeal against rejection of request for registration of land as a common: ‘At the heart of the appeal lies the question of law whether it is possible to acquire a right of common by virtue of an express grant or (as in the present case) user after 2 . .
CitedTrail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council SC 18-Mar-2015
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .
Lists of cited by and citing cases may be incomplete.

Land, Administrative

Updated: 09 December 2022; Ref: scu.242159

O’Brien Homes Limited v Lane: 5 Feb 2004

The court at first instance had considered what to award by way of damages for breach of a restrictive covenant and set a sum of pounds 150,000 out of an anticipated profit of pounds 280,000.
Held: The calculation of the gross profit might be challenged, but not to such an extent as to suggest that the award was incorrect.

Judges:

David Clarke J

Citations:

[2004] EWHC 303 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedSmall v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
CitedHarris v Williams-Wynne ChD 11-Feb-2005
The parties agreed in sale agreement for a plot of land that the buyer would not erect any additional building. He did so, and when he came to try to sell it the original vendor objected. The purchaser’s solicitors registered the agreement for sale. . .
Lists of cited by and citing cases may be incomplete.

Damages, Land

Updated: 09 December 2022; Ref: scu.242396

Pentrehobyn Trustees (Trustees of Pentrehobyn Settlement) v National Assembly for Wales: LT 14 Nov 2002

LT COMPENSATION – land acquired for bypass – 17 years between announcement of scheme and entry – no planning permission to be assumed under statutory assumptions – whether planning permission for B1 development would have been granted – whether hope value – approach to these questions – whether cancellation assumption or no-scheme world – negative section 17 certificate – effect of this – held correct approach no-scheme world assumption – claimants failing to show permission would have been granted or hope value.

Citations:

[2002] EWLands ACQ – 116 – 2000

Links:

Bailii

Jurisdiction:

England and Wales

Land, Damages

Updated: 09 December 2022; Ref: scu.225719

In re Mayo: ChD 1943

The court discussed the duty of trustees to sell in the absence of unanimity: ‘The trust for sale will prevail, unless all three trustees agree in exercising the power to postpone.’

Judges:

Simonds, J

Citations:

[1943] Ch 302

Statutes:

Law of Property Act 1925 30

Jurisdiction:

England and Wales

Cited by:

CitedJones v Challenger CA 1960
The test under the section was whether it was inequitable to make the order for sale where one of the joint beneficiaries, who in that case were ex-husband and wife, wished to realise their investment in the property.
Held: Referring to the . .
CitedWilkinson v Chief Adjudication Officer CA 24-Mar-2000
The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes. . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 09 December 2022; Ref: scu.201637

Shears Court (West Mersea) Management Company Ltd v Essex County Council: ChD 1986

Residents claimed a right to use a way over the plaintiff’s land as access to a beach. The County Council after representation by the residents instituted proceedings under the 1981 Act having concluded that there was a public right of way. Meanwhile the plaintiff landowner issued a writ seeking a declaration that no public footpath existed over its land. The County Council sought to have the writ struck out.
Held:- ‘There is nothing in these cases which supports the contention that once the procedure of the Act of 1981 is under way but not yet completed there is no right to bring a question concerning the alleged right of way before the court. That such an action may be stayed is one thing, but to say that it should be struck out is entirely without foundation.’ He therefore declined to strike it out but ordered the proceedings under it to be stayed pending resolution of the local authority’s enquiries and determinations under the 1981 Act.

Judges:

Prosser QC

Citations:

[1986] 85 LGR 479

Statutes:

Wildlife and Countryside Act 1981 53

Jurisdiction:

England and Wales

Cited by:

CitedTodd, Bradley v The Secretary of State for Environment Food and Rural Affairs Admn 22-Jun-2004
Application was made to quash an order modifying the Council’s definitive map of public rights of way.
Held: Before the Secretary of State could confirm a Council’s modification of a right of way shown on the definitive map, where that . .
Lists of cited by and citing cases may be incomplete.

Local Government, Land

Updated: 09 December 2022; Ref: scu.199322

Lutrell’s Case: 1601

A prescriptive right to a watercourse was not lost by the dominant owner demolishing two ancient fulling mills and erecting in their place two new corn grinding mills. The Exchequer Chamber held that the dominant owner ‘might alter the mill into what nature of a mill he pleased, provided always that no prejudice should thereby arise, either by diverting or stopping of the water, as it was before ‘.

Citations:

(1601) 4 Co Rep 86a

Jurisdiction:

England and Wales

Cited by:

CitedMcAdams Homes Ltd v Robinson and Another CA 27-Feb-2004
The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .
CitedRay v Fairway Motors (Barnstaple) Limited CA 1968
It was argued that an easement of support, obtained by prescription, could no longer be enjoyed where the owner of the dominant land had extended his building so as to increase, indeed virtually to double, the weight thrown onto a wall on the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 December 2022; Ref: scu.194012

Abbott v Minister for Lands: PC 30 Mar 1895

(From the Supreme Court for New South Wales) When considering what was a ‘vested right’ for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the community or any class of them into an accrued or vested right to which the presumption applies, the particular beneficiary of the right must have done something to avail himself of it before the law is changed. Since the purpose of legislation is to alter the existing legal situation, there is no presumption that it will not alter rights which individuals have, but have not exercised.

Judges:

Lord Herschell LC

Citations:

[1895] AC 425, [1895] UKPC 17

Links:

Bailii

Jurisdiction:

Australia

Cited by:

CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
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 . .
CitedSecretary of State for Energy and Climate Change v Friends of The Earth and Others CA 25-Jan-2012
The Secretary had issued a consultation on the payments for solar energy feed-in-tarriffs, with a view to the new rate being brought in in April 2012. As the consultation ended, he proposed to reduce rates from December 2011. He now appealed against . .
CitedHand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Land

Updated: 09 December 2022; Ref: scu.184438

Nash v Coombs: 1868

The parties disputed interests in a sum of andpound;3053 paid by the Midland Railway Company for the acquisition in 1866 of common land. The right of common was vested in resident freemen as a result of an award of the Inclosure Commissioners in 1797 made under an Inclosure Act of 1795. The resident freemen sought division of the fund between them under section 104 of the 1845 Act and sections 15 to 17 of the 1854 Act.
Held: Freeman had no fee simple right (that is, they did not own the land) and therefore the money should be held in trust for the freemen resident from time to time. After referring to the award in 1797, the court said: ‘What I should suppose would be the right of the parties under that would be, that whoever these trustees might be, whether a corporation or not, they became trustees for the resident freemen for all time, and not for those only who at the time when the Act passed (1795) had become and were resident freemen. It would be just as reasonable to say that at that moment all those resident freemen would have had a right to file a bill to have the land divided amongst them, as to say that the present resident freemen have the right contended for. Their rights are simply shifting rights. A body is attempted to be constituted – either a corporation or a body of persons – who were named trustees, and as trustees their trust was for the resident freemen of the borough for all time….It is a trust given to them to hold in lieu of the rights of common, so that all they had to do was to regulate the mode in which it should be enjoyed. The Legislature has simply indicated that this land is available for any purpose to which the trustees and freemen like to put it. Suppose it turned out very valuable for building purposes, possibly they might have had to have recourse to this Court before applying it to those purposes, regard being had to the particular nature of the trust, but I apprehend that they could use the land in any way most agreeable to the resident freemen.
These existing resident freemen say they are the only persons interested in the land, and that the money which has been paid for the fee simple, ought to be divided between them….A person who has only got an interest every year that he resides has not got a free simple interest. Take the case of the owner of an enclosed farm who has a commonable right attached to the occupation of the property. If he is only tenant for life the committee who are ‘to pay the amount to the persons interested according to their respective interests’, ought not to pay him the whole value of the land. It must be invested, so that tenant for life and tenant in remainder shall get their proper shares…..[T]he Legislature thought, rightly or wrongly, that as to commonable interests, when they were found to be trifling, they might be apportioned to the holders of them, whoever they might be, and however small or however precarious the existing interest might be. But there might be a case where the land would be valuable for building purposes when this right of feeding cattle was disposed of. In such a case the interest might be considerable in the different persons who had rights, and I cannot hold that it was intended to hand over the whole fee simple interest in the property to persons having only this temporary and fluctuating interest….What I propose, therefore, to do is to declare that the money paid into Court ought to be re-invested in land, to be held on the same trusts as those upon which the lands taken by the railway company were held, viz., in trust for the freemen of the borough of Bedford from time to time residing within the limits of the ancient borough, and in the meantime the same ought to be invested, and the dividends paid (subject to payment of costs) to the trustees, and divided by them amongst such resident freemen at the same time or times as such freemen have been accustomed in each year to enter upon the enjoyment of their rights of common.’

Judges:

Sir William Page Wood VC

Citations:

(1868) LR 6 Eq 5

Jurisdiction:

England and Wales

Cited by:

CitedH M Attorney General v Hyde and others ChD 5-Dec-2001
Land had been acquired by the trustees’ predecessors under the 1882 Act. The question was now whether it was subject to charitable trusts. Money having been received from the acquisition of the rights, a meeting had been held to determine the trusts . .
CitedHitchin Cow Commoners Trust, Re ChD 5-Dec-2001
Land was registered as a common. Rights had been created over the land under the 1882 Act after the Inclosure Acts. Were these rights in the nature of charitable trusts? No use of the land as a cow common had taken place with living memory, and most . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 December 2022; Ref: scu.179826

Etridge v Pritchard Englefield (Merged With Robert Gore and Co): CA 28 Apr 1999

Appeal of Mrs E from a judgment awarding her only nominal damages only for breach of contract by the defendant solicitors in respect of their failure to advise her properly or at all in connection with the acquisition and financing by her of a property.

Judges:

Morritt, May, Tuckey LJJ

Citations:

[1999] PNLR 839, [1999] EWCA Civ 1280, [1999] Lloyd’s Rep PN 702

Links:

Bailii

Jurisdiction:

England and Wales

Land, Equity, Banking, Legal Professions, Undue Influence

Updated: 09 December 2022; Ref: scu.146195

Denty and Another v Hussein: ChD 26 May 1999

The parties owned adjoining premises. The plaintiffs sought relief, alledging that their rights of way had been infringed. The defendant had erected fences and gates across a service road.
Held: Where a party erected a fence obstructing a right of way, the court was able to differentiate between rights of way by foot and vehicular rights of way. The right of way by car had begun only within the prior 20 years. That particular right of way could be enforced by injunction, but not for the extent of use claimed.

Judges:

D L Mackie QC

Citations:

Gazette 16-Jun-1999, [1999] 96 (24) LSG 40

Statutes:

Prescription Act 1832

Jurisdiction:

England and Wales

Land, Limitation

Updated: 09 December 2022; Ref: scu.79903

West 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 right remained, but there had been no substantial interference to justify an order either for an injunction or damages.
Mummery LJ said: ‘Not every interference with an easement, such as a right of way, is actionable. There must be a substantial interference with the enjoyment of it. There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction. Thus, the grant of a right of way in law in respect of every part of a defined area does not involve the proposition that the grantee can in fact object to anything done on any part of the area which would obstruct passage over that part. He can only object to such activities, including obstruction, as substantially interfere with the exercise of the defined right as for the time being is reasonably required by him.’

Judges:

Mummery LJ, Colman J

Citations:

Gazette 12-May-1999, [1999] EWCA Civ 1292

Jurisdiction:

England and Wales

Citing:

CitedKeefe v Amor CA 1965
The Court declined to limit the extent of a right of way 20 feet wide by reference to the bottleneck at its entrance from the road of 4 feet 6 inches, consisting of a pair of gate pillars and a gate of that width. The grant was over the whole 20 . .
CitedCelsteel 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.90387

Sheppard v Grant and Others: UTLC 12 Jun 2020

Restrictive Covenants : Modification – house on 1980’s estate – planning permission to demolish garage and build second house on plot – parties agreeing no injury under ground (c) – assessment of sum to reflect diminution in price originally paid because of inclusion of restrictions – sub-para (ii) of Section 84(1) of Law of Property Act 1925 – application granted – compensation of pounds 4,000 awarded

Citations:

[2020] UKUT 171 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 07 December 2022; Ref: scu.651763

Marchitelli v 15 Westgate Terrace Ltd: UTLC 18 Jun 2020

Landlord and Tenant : Breach of Covenant – permitting or suffering use of premises for immoral acts – whether sufficient evidence of prohibited use adduced to discharge burden of proof – adequacy of FTT’s reasons and findings of fact – importance of clear determination of nature and extent of breach – appeal allowed

Citations:

[2020] UKUT 192 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 07 December 2022; Ref: scu.651762

Bowers v Bowers: 3 Feb 1987

Husband and wife were the joint owners of a house subject to a mortgage. The husband purported to remortgage the house, the wife’s signature being forged.
Held: Although the remortgage only took effect as a charge on the husband’s equitable interest, the new mortgagee was subrogated to the rights of the original mortgagee even though the wife knew nothing about the remortgaging.

Judges:

Hoffmann J

Citations:

Unreported, 3rd February 1987

Jurisdiction:

England and Wales

Cited by:

CitedBankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.416036

Hollins v Verney: 1883

A private right of way was claimed under the 1832 Act by virtue of use to remove wood from an adjoining close.

Citations:

(1883) 11 QBD 715

Statutes:

Prescription Act 1832

Jurisdiction:

England and Wales

Cited by:

Appeal fromHollins v Verney CA 1884
A claim for a presumption of a lost modern grant must include an assertion that the enjoyment of the carriageway was continuous or uninterrupted.
Lindley LJ said: ‘It is difficult, if not impossible, to enunciate a principle which will . .
MentionedLewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.402565

Woolfson v Strathclyde Regional Council: HL 15 Feb 1978

The House considered the compensation payable on the compulsory purchase of land occupied by the appellant, but held under a company name.
Held: The House declined to allow the principal shareholder of a company to recover compensation for the compulsory purchase of a property which the company occupied. the separate personality of a company is a real thing. Lord Keith observed that ‘it is appropriate to pierce the corporate veil only where special circumstances exist indicating that it is a mere facade concealing the true facts.’
Where the evidence shows that a company has been used as a vehicle or device for receiving monies wrongly paid out of a claimant company in breach of a defendant’s duty to that company, the receipt by the third party vehicle will be treated as the receipt by the defendant.

Judges:

Wilberforce, Fraser of Tulleybelton, Killowen, Kinkel LL

Citations:

[1978] UKHL 5, [1979] JPL 169, (1978) 248 EG 777, 1978 SC (HL) 90, 1978 SLT 159, (1979) 38 P and CR 521

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

AppliedAdams v Cape Industries plc CA 2-Jan-1990
Proper Use of Corporate Entity to Protect Owner
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .
CitedPrest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.

Land, Company

Updated: 07 December 2022; Ref: scu.279742

Wagstaff v Department of Environment Transport and the Regions: 1999

Citations:

[1999] 2 EGLR 108

Jurisdiction:

England and Wales

Cited by:

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

Land

Updated: 07 December 2022; Ref: scu.259678

In re Summerson (Note): 23 Feb 1899

The buyer of leasehold promises sought to be discharged from her obligation to complete, when it was revealed after exchange of contracts, that the lease contained a clause for forfeiture if the premises should be used as an alehouse. The property had in fact been used for many years in breach of that covenant with the knowledge of the lessor.
Held: For more than thirty years the property had been used openly in breach of the covenant, and assignments had been registered with and accepted by the landlord identifying its use as a public-house. Romer J said: ‘there can be no question as to the purchaser getting a good title. This property was carried on as an inn even before the date of the lease.’ and ‘What is the conclusion? Inevitably that there has been a licence, and a binding licence, from the corporation to the lessee to use these premises as a public-house, or a release of this covenant, so far as it affects these particular premises, one way or another.’

Judges:

Romer J

Citations:

[1898] S 1192, [1899] 1 Ch 112

Jurisdiction:

England and Wales

Citing:

FollowedGibson v Doeg 1857
A tenant had openly used the premises for many years in breach of a covenant in the lease.
Held: Pollock CB said: ‘It is a maxim of the law to give effect to everything to which appears to have been established for a considerable course of . .

Cited by:

FollowedHepworth v Pickles ChD 2-Nov-1899
The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.252343

Lockwood v Wood: 1844

A customary right over land becomes in effect a local law.

Judges:

Tindal CJ

Citations:

(1844) 6 QB 50

Jurisdiction:

England and Wales

Cited by:

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

Land

Updated: 07 December 2022; Ref: scu.242336

Elliott v Safeway Stores plc: 1995

Proposed use of land would be in breach of covenant when it was put to a use which was ancillary to the use of adjoining land.
Held: The allegation failed. There would only have been a breach if the land in question had been used for the purpose for which the adjoining land was to be put.

Judges:

Judge Paul Baker QC

Citations:

[1995] 1 WLR 1396

Jurisdiction:

England and Wales

Cited by:

CitedJarvis Homes Ltd v Marshall and Another CA 6-Jul-2004
An intended new road was going to be the access way for 12 new houses. Part of a restrictive covenant provided that the covenantors and their successors would not ‘use or permit or suffer to be used the land hereby conveyed or any part thereof or . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.242398