UTLC COMPENSATION – compulsory purchase – dwelling house – absent and untraceable owners – valuation of freehold reversion and long leasehold interests – compensation assessed at pounds 15 and pounds 35,000 respectively
[2009] UKUT 190 (LC)
England and Wales
Updated: 18 August 2022; Ref: scu.415031
UTLC RESTRICTIVE COVENANT – modification – proposed development of a detached bungalow to the rear of existing house – whether practical benefits of substantial value or advantage secured to objectors – whether a building scheme – application granted – compensation totalling pounds 23,000 awarded – Law of Property Act 1925 s84(1)(aa)
[2009] UKUT 159 (LC), [2010] 1 P and CR 20
England and Wales
Updated: 18 August 2022; Ref: scu.415022
UTLC COMPENSATION – compulsory purchase – vacant land on riverbank – acquisition of rights to undertake works and thereafter maintain – untraceable owner – valuation of freehold interest – compensation nil
[2009] UKUT 160 (LC)
England and Wales
Updated: 18 August 2022; Ref: scu.415020
UTLC COMPULSORY PURCHASE – tubes of subsoil acquired for Channel Tunnel Rail Link – value – held nominal amount payable as no market for acquired property – compensation of andpound;50 awarded in each case
[2009] UKUT 165 (LC)
England and Wales
Updated: 18 August 2022; Ref: scu.415030
COMPENSATION – compulsory purchase – dwelling house in a regeneration area – valuation – comparables – Land Compensation Act 1961 section 5, rule (2) – compensation determined at pounds 96,000
[2010] UKUT 122 (LC)
England and Wales
Updated: 18 August 2022; Ref: scu.415014
COMPENSATION – limitation – Land Compensation Act 1973 – whether proceedings brought when notice of reference sent to Tribunal – whether notice of reference a nullity if failing to identify all persons interested in the land – held claim not statute barred – 1973 Act s 16, Limitation Act 1980 s 9(1), Lands Tribunal Rules 1996 rr 10 and 11
[2009] UKUT 164 (LC), [2009] RVR 358
England and Wales
Updated: 18 August 2022; Ref: scu.415021
UTLC COMPENSATION – compulsory purchase of part of forecourt to commercial premises and half road width for highway improvements – loss of rent and rental voids – injurious affection – valuation assumptions – personal time – pre-reference costs – Land Compensation Act 1961 section 5, rule (6) and Compulsory Purchase Act 1965 section 7 – compensation determined at pounds 8,641.50
[2010] UKUT 99 (LC)
England and Wales
Updated: 18 August 2022; Ref: scu.415018
COMPENSATION – compulsory purchase – open market value of restaurant – analysis of comparable rentals and yields – analysis of comparable leasehold sale – cost of repairs and refurbishment – compensation assessed at pounds 55,000
[2010] UKUT 120 (LC)
England and Wales
Updated: 18 August 2022; Ref: scu.415016
UTLC COMPENSATION – compulsory purchase – dwelling house – absent and untraceable owners – valuation of freehold reversion and long leasehold interests – compensation assessed at andpound;15 and andpound;30,000 respectively
[2009] UKUT 192 (LC)
England and Wales
Updated: 18 August 2022; Ref: scu.415035
UTLC COMPENSATION – compulsory purchase – small industrial estate – capital value of freehold interest – rent passing – open market rental value – yield – comparables – loss of rent on review – management time – compensation awarded andpound;298,450.
[2010] UKUT 44 (LC)
England and Wales
Updated: 18 August 2022; Ref: scu.415001
COMPENSATION – compulsory purchase – dwelling house – absent and untraceable owner – valuation of freehold interest – compensation assessed at pounds 70,000
[2010] UKUT 292 (LC)
England and Wales
Updated: 18 August 2022; Ref: scu.414990
lUTLC COMPENSATION – compulsory purchase – travel agency and foreign exchange business – abortive move followed by double relocation – temporary loss of profits – directors’ and staff time – admissibility of late evidence – interim decision
[2010] UKUT 30 (LC)
England and Wales
Updated: 18 August 2022; Ref: scu.414998
UTAA RESTRICTIVE COVENANT – modification – dwellinghouse – covenant not to make alterations and additions without adjoining owner’s approval – application to modify to permit alterations to existing house – Law of Property Act 1925, s84(1)(aa) and (c).
N J Rose FRICS
[2010] UKUT 16 (LC)
Law of Property Act 1925 84(1)(aa) 84(1)(c)
England and Wales
Updated: 18 August 2022; Ref: scu.414989
[2010] UKUT 82 (LC)
England and Wales
Updated: 18 August 2022; Ref: scu.415004
A boundary line which the parties had agreed and marked out could supersede a plan on a conveyance expressly said to be for identification only. Lord Denning: ‘It seems to me that the line of white stakes with the white peg in the south-east corner and the post and wire fence at the north-east corner, were physical features on the land showing what was being sold. The plan on the conveyance was for the purpose of identification only. If it were an exact delineation there would be some difficulty in regard to the northerly northern boundary. It would run along the hedge and trees and would make the northern boundary four to six feet further north of the post and wire fence. But as the plan is only for the purpose of identification, I think we can ignore that discrepancy. On the land itself the metes and bounds of this property were sufficiently shown so that anyone looking at the land at the date of the conveyance could have seen perfectly well what was being sold.’
Denning LJ
March 8 1957 CA Bar Library Transcript No 84
England and Wales
Applied – Willson and Another v Greene and Another ChD 10-Nov-1970
A plot of land had been originally sold after being pegged out, but the conveyance plan differed from the line pegged out. The land was again sold with a plan on both contract and conveyance still being incorrect. In each case the plan had been used . .
Cited – Willson v Greene (Moss third party) ChD 1971
The court could take into account objective surrounding circumstances indicating where the boundary line had been agreed and marked out by the parties. Thus extrinsic evidence of where the land was identified by pegs was admissible and the extrinsic . .
Cited – Stephenson and Another v Johnson and Another CA 12-Jul-2000
There had been a dispute as to the correct boundary between two properties in North Yorkshire. The land had been in common ownership until 1973. The 1973 conveyance showed the boundary in a position which the claimants said was determinative. The . .
Cited – Lovering and Another v Atkinson and Others PC 18-May-2020
(Court of Appeal of Guernsey (Civil Division)) Conveyancing dispute between the partners of a firm of advocates and notaries public and their clients as to whether AFR were negligent in allowing their clients to purchase a residential property with . .
Cited – Semple v Anthony and Anthony (Evidence) LRA 13-Jan-2012
LRA Determined Boundary – whether title plans determinative of the boundary between car-parking spaces – whether extrinsic evidence admissible as an aid to the construction of the transfers – whether the . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 August 2022; Ref: scu.181804
There had been a dispute as to the correct boundary between two properties in North Yorkshire. The land had been in common ownership until 1973. The 1973 conveyance showed the boundary in a position which the claimants said was determinative. The defendants said that the position of the boundary was different and was along the line of a fence erected by the claimants’ predecessor, which boundary had been impliedly agreed by the parties’ respective predecessors in title.
Held: Acquiescence in the erection of the fence along a particular line had created a boundary agreement. The parties must be taken to have agreed that the fence represented the boundary. The judge had been entitled to have regard to a number of matters, including fencing covenants in the conveyance to the defendants, the fact that members of the same family were involved with both properties and to the whole course of the parties’ conduct.
The court looked at what was necessary to suggest the compromise of a land dispute: ‘In summary, in my judgment, the judge was right to find an agreement between Mr Vane and the defendants. It is not strictly necessary for a court to have to find an offer and an acceptance. The course of the parties’ conduct, that is to say, Mr Vane and the defendants, should be looked at and if, on the balance of probabilities, an agreement is established, that is sufficient. In my judgment, the conduct of Mr Vane and the defendants does establish such an agreement.’
(Orse Stevenson v Johnson)
Pill, Clarke LJJ, Bennett J
[2000] EWCA Civ B4, [2000] Estates Gazette Case Summaries 92, [2000] EGCS 92
England and Wales
Cited – Neilson v Poole ChD 1969
Significance of Boundary agreements
The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .
Cited – Webb v Nightingale CA 8-Mar-1957
A boundary line which the parties had agreed and marked out could supersede a plan on a conveyance expressly said to be for identification only. Lord Denning: ‘It seems to me that the line of white stakes with the white peg in the south-east corner . .
Cited – Willson v Greene (Moss third party) ChD 1971
The court could take into account objective surrounding circumstances indicating where the boundary line had been agreed and marked out by the parties. Thus extrinsic evidence of where the land was identified by pegs was admissible and the extrinsic . .
Cited – Hawkes v Howe CA 29-Jul-2002
The parties were neighbours. One asserted that the other had trespassed in a building by 2.5 inches. The defendant appealed an award of damages. A garage had been built over the boundary by a previous occupier but by agreement. The new owner . .
Cited – Rees v The National Trust for Places of Historic Interest or National Beauty LRA 5-Mar-2007
Boundary Dispute . .
Cited – Haigh, Haigh v Sturman FTTPC 25-Nov-2013
Boundary Dispute . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 August 2022; Ref: scu.183147
[2001] EWCA Civ 1104
England and Wales
Updated: 18 August 2022; Ref: scu.201299
[1662] EngR 269, (1662) Latch 153, (1662) 82 ER 321 (C)
England and Wales
Updated: 17 August 2022; Ref: scu.409513
Laws, Jacob LJJ, Lewison J
[2009] EWCA Civ 1568
England and Wales
Updated: 17 August 2022; Ref: scu.408794
The parties, neighbours, disputed the line of the boundary between their properties.
Rix, Rimer, Patten LJJ
[2010] EWCA Civ 396
England and Wales
Updated: 17 August 2022; Ref: scu.408593
The defendant appealed against an order that he held land on a bare trust for the claimant as personal representative of the deceased. He had acquired the land under survivorship. The court found that the land had been put into joint names under an assent for administrative convenience only and not by way of gift.
Held: The appeal failed. The argument based on a certificate of value included in the assent which would have been unnecessary in a gift was equally inconsistent with the defendant’s own case, and the assent was so badly drafted that no such conclusion could properly be drawn from it.
Henderson LJ
[2010] EWCA Civ 398
Administration of Estates Act 1925 33(4)
England and Wales
Updated: 17 August 2022; Ref: scu.408566
Renewed application for leave to appeal against refusal of his claim for a right of way.
Held: Granted on limited grounds.
Mummery LJ, Etherton LJ
[2010] EWCA Civ 452
England and Wales
Updated: 17 August 2022; Ref: scu.408596
Application to determine what is the appropriate valuation date in respect of an option agreement
Purle QC HHJ
[2010] EWHC 766 (Ch)
England and Wales
Updated: 17 August 2022; Ref: scu.408504
The Parish Council sought to quash an order made by the respondent stopping up the byway open to all traffic in the village of Beckley.
[2010] EWHC 606 (Admin)
England and Wales
Updated: 16 August 2022; Ref: scu.406541
[1703] EngR 38, (1703) 4 Bro PC 66, (1703) 2 ER 45
Commonwealth
Updated: 16 August 2022; Ref: scu.392191
Quaere, whether a child, born in Scotland, of parents domiciled there, who at the time of his birth were not married, but who afterwards intermarried in Scotland, (neither having in the meantime married any other person,) can take as heir lands of his father in England.
[1835] EngR 75, (1835) 2 Cl and Fin 571, (1835) 6 ER 1270
England and Wales
Updated: 16 August 2022; Ref: scu.315583
Megarry J said: ‘to effect registration of a . . caution is an easy matter, and . . to do so will usually effectually inhibit any disposition of the land so long as the registration remains effective. Registration may, therefore, become a weapon of considerable nuisance value’
Megarry J
(1969) 20 PandCR 32
England and Wales
Cited – Nugent 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.
Updated: 16 August 2022; Ref: scu.519753
Application for permission to appeal – possession order – licensee
[2001] EWCA Civ 181
England and Wales
Updated: 16 August 2022; Ref: scu.218032
The couple had lived together at the property without being married for several years. The house was held in the man’s sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half share in the house during his life, and that she had accepted obligations to the bank on the strength of that promise. The executors contended that it has been intended only that she should acquire an interest which would persist during his lifetime.
Held: Mr Freeman and Miss Hyett rendered themselves jointly and severally liable to the Bank by the very transaction by which Miss Hyett acquired her beneficial interest, they could only reasonably have intended that they should each take a half share. A life insurance policy on joint lives was held for Mrs Hyett only to the extent required to repay the charge, but as to the rest for the executors.
[2003] EWCA Civ 942, [2004] 1 FLR 394
England and Wales
Cited – Lloyds 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 . .
Cited – Eves v Eves CA 28-Apr-1975
The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Cited – Watt (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 . .
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Stokes v Anderson CA 1991
The claimant had made two payments, amounting together to andpound;12,000, towards the acquisition of the one half share of the defendant’s ex-wife in the net equity (valued at andpound;90,000) in a house in which the claimant and the respondent . .
Cited – Smith v Clerical Medical and General Life Assurance Society CA 1993
. .
Cited – Van Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.184606
The defendant local authority agreed to pay for the plaintiff’s premises in Liverpool at the price which would have been payable if the acquisition had been by way of compulsory purchase. The major part of the price constituted compensation for disturbance, which it was common ground fell to be assessed in the same way as if the disturbance were damage suffered at common law for trespass. The issue was whether the plaintiff was required to give credit for a regional development grant which it obtained from the national government as 22% of its costs of relocating in another part of Liverpool.
Held: It did not; it would be contrary to public policy to make the deduction because it would discourage those such as Palatine from locating to the development areas which it was the purpose of regional development grants to encourage. The plaintiff relied also on a difference between disturbance on compulsory purchase and the payment of a regional development grant: ‘Secondly, the loss caused by disturbance on compulsory purchase and the payment of regional development grant are different in kind. The loss on disturbance flowed from the fact that the landowner had been forced to give up occupation of his land and premises as a result of the acquisition of his interest. The regional development grant was paid in respect of part of the expenditure incurred when moving into new premises’
Sir John Donaldson MR said: ‘On the facts of this case, there is no dispute but that Palatine incurred disturbance expenditure in the amount, I think, of pounds 147,478, although the precise figures do not matter, and that this expenditure would not have been incurred but for the compulsory purchase. There is also no dispute that some of this expenditure attracted regional development grant. The sole question in dispute is whether the disturbance loss is properly to be regarded as being the disturbance expenditure as abated pro tanto by the regional development grant. If it is, then the amount of the compulsory purchase price can only take account of the disturbance expenditure so abated, as otherwise it would amount to over-compensation and offend against the principles enunciated in Horn’s case. If it is not, the compulsory purchase price can take account of the full disturbance expenditure since that, and not the abated sum, represents the disturbance loss.
It is at this point that it is necessary to take a closer look at the nature of a regional development grant, just as the House of Lords took a closer look at the nature of a police pension in Parry v. Cleaver [1970] AC 1. A regional development grant is not paid in compensation for dispossession or disturbance. It is payable whether or not there is a change of ownership or location, so long as it relates to expenditure of a relevant kind incurred in a relevant geographical area. It is therefore different in kind from compensation for disturbance. Indeed it is not compensation at all. Regional development grants are, as one of the Department of Industry booklets rightly describes them, ‘Incentives for Industry in the Areas for Expansion.’
This analysis leads me to conclude that in the instant, and similar, cases, (i) the person whose land is compulsorily acquired incurs disturbance expenditure in re-establishing his business, (ii) other things being equal, this expenditure is the same wherever he incurs it, (iii) this expenditure is prima facie the measure of his disturbance loss, (iv) his disturbance loss is not reduced, if he chooses to incur the disturbance expenditure in a particular area and is rewarded-not compensated-for so doing by the receipt of an incentive payment in the form of a regional development grant. In principle this is no different from the mail order customer who buys goods for pounds 100 and has his name entered in a draw for a prize of pounds 100. The goods will cost him pounds 100, whether he wins or loses. If he wins, he will have paid pounds 100 for the goods and received a prize of pounds 100. He will not have received the goods for nothing. ‘
Sir John Donaldson MR, Glidewell LJ, May LJ
[1986] 1 EGLR 19, (1985) 84 LGR 527, [1986] QB 335, [1986] 1 All ER 366, (1985) 52 P and CR 308, [1986] 2 WLR 285
England and Wales
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.642154
Housing – House In Multiple Occupation
[2019] UKUT 291 (LC)
England and Wales
Updated: 16 August 2022; Ref: scu.641710
Restrictive Covenant
[2019] UKUT 276 (LC)
England and Wales
Updated: 16 August 2022; Ref: scu.641711
Appeal from rejection of challenge to Public Spaces protection order in area around family planning and abortion clinic.
Held: Appeal rejected.
Sir Terence Etherton MR, Lady Justice King and Lady Justice Nicola Davies
[2019] EWCA Civ 1490
England and Wales
Updated: 16 August 2022; Ref: scu.641785
Sir John Gillen, Sir Ronald Weatherup and Sir Reg Weir
[2018] NICA 43
Electricity (Northern Ireland) Order 1992
Northern Ireland
Updated: 16 August 2022; Ref: scu.641379
Lord Neuberger MR, Aikens, Lewison LJJ
[2011] EWCA Civ 1356
England and Wales
Updated: 16 August 2022; Ref: scu.448407
Dispute as to right of access to communal garden.
Sir William Blackburne
[2010] EWHC 1706 (Ch)
England and Wales
Updated: 16 August 2022; Ref: scu.420698
The claimant appealed against an order refusing his request to quash a footpath modification order. The request had not been signed as required.
Held: The appeal succeeded. ‘subject to the de minimis principle, an application must strictly comply with para 1 of Schedule 14 . . But that does not mean that a valid application must be contained in a single document, namely the prescribed form . . Minor departures from the requirements of para 1 do not invalidate an application. In my judgment, there are circumstances in which a valid application may be contained in the application form when read with another document.’ The lack of a date and signature in an application form can in principle be cured by a dated and signed letter sent shortly after the submission of the form, where the omissions are pointed out and the Council is asked to treat the application as bearing the date of the letter and the signature of the author of the letter. However, even making de minimis allowances, the application was not compliant.
Dyson, Richards, Jackson LJJ
[2010] EWCA Civ 280
Wildlife and Countryside Act 1981 53, Natural Environment and Rural Communities Act 2006 67(1)
England and Wales
Cited – DA Botany Bay City Council v Remath Investments 15-Dec-2000
(Supreme Court of New South Wales – Court of Appeal) A statute provided that ‘A development application shall . . (b) be made in the prescribed form and manner; . . and (d) . . be accompanied by an environmental impact statement in the prescribed . .
Cited – Winchester College and Another, Regina (on the Application of) v Secretary of State for Environment, Food and Rural Affairs CA 29-Apr-2008
The college appealed against modifications of definitive map to upgrade two footpaths to byways open to all traffic. The college was circled by footpaths which it wished to protect when the council constructed a new bypass.
Held: The College’s . .
Appeal from – Maroudas v Secretary of State for Environment, Food and Rural Affairs and Another Admn 9-Mar-2009
Application was to quash the decision of the Secretary of State, made by an inspector in May 2008 following a hearing, to confirm a modification order made in response to an application originally made under section 53(5). It had had several . .
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Cited – Trail Riders’ Fellowship and Another, Regina (on The Application of) v Dorset County Council Admn 2-Oct-2012
The claimants challenged rejection of five applications under section 5 of the 1981 Act for modification orders allowing the upgrade of routes to provide vehicular public rights of way. The applications had been submitted using digital mapping. The . .
Cited – Trail 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.
Updated: 15 August 2022; Ref: scu.403355
The defendant appealed against an order for possession of land he had occupied adjacent to the land he held under a tenancy of the claimant.
Rix, Hughes LJJ, Sir David Keene
[2010] EWCA Civ 128
England and Wales
Updated: 15 August 2022; Ref: scu.402938
The land-owner appealed against confirmation of a public footpath crossing their land.
Supperstone QC J
[2009] EWHC 643 (Admin)
Wildlife and Countryside Act 1981
England and Wales
Updated: 15 August 2022; Ref: scu.328000
The claimant sought damages in nuisance and negligence saying that in constructing a new housing estate, they had altered the land in such a way as to lead to the repeated flooding of their home.
Held: Both the developer and the council were liable. It had been intended to provide a drainage gully. The first defendants had given representations that in making the alterations they would provide appropriate drainage, but had in fact constructed a fence in such a way as to restrict it. Though the use of land for housing was not a non-natural use, and the rule in Rylands v Fletcher did not apply, the original developer remained liable in nuisance and even if he had sold the land on. ‘Barratt was negligent in constructing the eastern boundary of its development in such a way as to restrict the natural flow of water from the south eastern corner of the retained land past the Springfield Road properties. It was reasonably foreseeable that the resulting restricted gap for the reasons I have given would not cope with the volume of water that could flow from the retained land, particularly after heavy rain; that the water would encroach into the claimants’ and other Springfield Road properties to the south of them; that damage would result. In my judgment, such encroachment resulted from an unreasonable use of the land which Barratt had purchased from Rochdale and constituted a nuisance the effects of which continue to the present and will continue until abated.’
Grenfell J
[2009] EWHC 744 (QB), [2009] 32 EG 70, [2009] Env LR D14
England and Wales
Cited – Holbeck Hall Hotel Ltd and Another v Scarborough Borough Council CA 22-Feb-2000
Land owned by the defendant was below a cliff, at the top of which was the claimant’s hotel. The land slipped, and the hotel collapsed. Some landslip was foreseen from natural causes, but not to the extent of this occasion.
Held: The owner of . .
Cited – Sedleigh-Denfield v O’Callaghan HL 24-Jun-1940
Occupier Responsible for Nuisance in adopting it
A trespasser laid a drain along a ditch on the defendant’s land. Later the defendants came to use the drain themselves. A grate was misplaced by them so that in a heavy rainstorm, it became clogged with leaves, and water flowed over into the . .
Cited – Arscott and others v Coal Authority and Another CA 13-Jul-2004
The defendant had deposited coal wastes. When the river Taff flooded, the spoil heaps diverted the floods to damage the claimants’ homes. They appealed refusal of their claims in nuisance. The judge applied the common enemy rule: ‘an owner or . .
Cited – Goldman v Hargrave PC 13-Jun-1966
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would . .
Cited – Sedleigh-Denfield v O’Callaghan HL 24-Jun-1940
Occupier Responsible for Nuisance in adopting it
A trespasser laid a drain along a ditch on the defendant’s land. Later the defendants came to use the drain themselves. A grate was misplaced by them so that in a heavy rainstorm, it became clogged with leaves, and water flowed over into the . .
Cited – Palmer and Another v Bowman and Another CA 27-Oct-1999
There is no easement of right for an owner of higher land for water naturally to drain off over neighbouring lower land, and nor was an easement required. The doctrine of lost modern grant need not be applied. Although the higher land owner had no . .
Cited – Green v The Right Honourable Lord Somerleyton and others CA 28-Feb-2003
The parties owned areas of marshland divided by a road. The claimant sought a declaration that the defendants had no right to allow floodwater to escape over his land from what he said was an artificial reservoir on the defendant’s land. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2022; Ref: scu.375576
Application for judicial review of a decision by the Secretary of State for Communities and Local Government to confirm a compulsory purchase order.
[2008] EWHC 2646 (Admin)
England and Wales
Updated: 15 August 2022; Ref: scu.277544
No appeal lies in a case of certiorari from the Superior Court to the Court of Queen’s Bench in Lower Canada ; so held by the Judicial Committee, confirming a judgment of that Court, on an appeal from the judgment of the Superior Court quashing a writ of certiorari issued out of the Superior Court, to remove into it certain proceedings of the Seigniorial Revising Commissioner’s, in which they had disallowed a claim for compensation for the loss of seigniorial rights.
[1870] EngR 7, (1870) 6 Moo PC NS 427, (1870) 16 ER 787
Canada
Updated: 15 August 2022; Ref: scu.280517
Where a tenant for life purchased the reversion of his nephew in the family estate : Held, that the transaction fell within the ordinary rule as to reversionary interests, and was not to be regarded as a family arrangement.
The fact that a reversion is dependent on contingencies, which do not admit of estimation by actuaries, does not relieve the purchaser from the onus of shewing that fair value was given.
A family estate stood settled on A. (a bachelor) for life, with remainder to his issue in tail male, with remainder to his nephew B. in tail male, with remainder to the brothers of B. successively in tail male. A. purchased B.’s interest, and required B. to concur in disentailing the estate and conveying the fee. The sale was bona fide intended to be for a fair price ; and the object of the purchaser appeared to be to prevent the estate being sold by B. out of the family. The devisees of A. having failed to prove that fair value was given, the sale was set aside, without costs on either side.
Semble, that the estate to be valued was the reversion in fee which the purchaser acquired, and not merely the base fee which the vendor alone could have sold to a stranger.
[1861] EngR 625, (1861) 1 J and H 484, (1861) 70 ER 837
England and Wales
Updated: 15 August 2022; Ref: scu.284386
[1979] ScotCS CSIH – 3, 1980 SC 74, 1980 SLT 223
Scotland
Updated: 15 August 2022; Ref: scu.279513
What is the true interpretation, and the effect, of regulation 40(7)(ii) of the 2010 Regulations 2010 as amended under which no Community Infrastructure Levy is payable for ‘retained parts’ of a relevant building ‘where the intended use following completion of the chargeable development is a use that is able to be carried on lawfully and permanently without further planning permission in that part on the day before planning permission first permits the chargeable development’?
Sir Ernest Ryder, Senior President of Tribunals Lord Justice Lindblom and Lord Justice Hickinbottom
[2019] EWCA Civ 1544
Community Infrastructure Levy Regulations 2010 40(7)(ii)
England and Wales
Updated: 15 August 2022; Ref: scu.641790
Application for discharge of order appointing receivers.
Patricia Robertson QC
[2019] EWHC 1407 (Comm)
England and Wales
Updated: 15 August 2022; Ref: scu.642051
RESTRICTIVE COVENANTS – modification – 1980s office building let on long lease – covenants restricting use to offices only and controlling terms of underletting – modification sought to permit conversion to residential use and letting on assured shorthold tenancies – Law of Property Act 1925 section 84(1) (aa) and (c) – modification of user covenant ordered – modification of restriction on underletting refused
[2019] UKUT 256 (LC)
England and Wales
Updated: 15 August 2022; Ref: scu.641703
Application for judicial review concerns the issue of valuation of properties to be acquired by the Northern Ireland Housing Executive under the Scheme for the Purchase of Evacuated Dwellings.
Maguire J
[2015] NIQB 110
Northern Ireland
Updated: 15 August 2022; Ref: scu.641775
Request for leave to appeal from order for possession – mortgage action
Lord Justice Mummery
[2013] EWCA Civ 59
England and Wales
Updated: 14 August 2022; Ref: scu.470930
Lord Justice Stanley Burnton
[2009] EWCA Civ 1579
England and Wales
Updated: 14 August 2022; Ref: scu.415060
Mr Justice Morgan
[2010] EWCA Civ 711, [2010] BPIR 1304, [2010] 2 P and CR DG22
England and Wales
Updated: 14 August 2022; Ref: scu.417710
Sherwell was entitled to a right of way over land belonging to Mr Mees. Mr Mees carried out work to the route over which the right of way ran which made it unusable. The work that he carried out amounted to an actionable nuisance. Sherwell made no complaint. The lack of objection by Sherwell made it possible for Mr Mees to sell his land to Mr and Mrs Woodgate without having to give notice of any dispute about the right of way. Sherwell then sold its land to Mr and Mrs Lester.
Held: Sherwell’s appeal failed. Mr and Mrs Lester were estopped from asserting the right of way. Patten LJ noted that the pleaded case was that by failing to take any steps to prevent the creation of an actionable nuisance by Mr Mees, Sherwell became estopped as against Mr Mees and his successors in title from enforcing the right of way. He said: ‘If the claimant’s conduct at the time takes the form of encouraging the defendant to believe that his otherwise tortious interference with the claimant’s property will be waived and not objected to and, in reliance on that, the defendant subsequently acts in a way which can be characterised as detrimental then the position is, I think, different from the facts considered in Ramsden v Dyson and the court does then have to decide whether the causative effect of that conduct is sufficient to bar the enforcement of the legal right.’
Patten LJ rejected the submission that Sherwell’s acquiescence had not been relied on by Mr Mees. Mr Mees was entitled to rely on that acquiescence in formulating his replies to enquiries before contract. What is important is that the case was decided on the basis of reliance by the person to whom the representations were made and who was the property owner at the time of the reliance.
sedley, Jacob, Patten LJJ
[2010] EWCA Civ 199, [2010] 2 P and CR 21
England and Wales
Cited – Watt v Dignan and Others CA 5-Oct-2017
The parties disputed the continued existence of rights to use a toilet. The servient owner sought to establish an estoppel.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.402553
The claimant challenged the adoption of the defnitive map showing a public footpath over her land.
Sales J
[2010] EWHC 394 (Admin)
Wildlife and Countryside Act 1981
England and Wales
Updated: 14 August 2022; Ref: scu.402486
The claimant sought to be allowed to make an opening from his rear garden to a roadway to allow him vehicular access, provided he could cross the strip of land between his house and the road. The strip belonged to the defendants. The claimant said it was part of the public highway. When the remaining roadways had been adopted, this section, a cul-de-sac had not been included. Though made up privately, signs had remained declaring it private land.
Held: the defendant’s appeal was allowed. The judge had not followed the central question of identifying just when and how the cul de sac was supposed to have become a public highway.
Lloyd LJ said: ‘It is for a party who asserts that a highway exists to prove its existence and extent. Land can become a highway either by statutory processes (irrelevant to this case) or by dedication by the landowner and acceptance by the public. Dedication and acceptance can be express or implied. To find implied dedication there must be evidence from which an intention to dedicate can reasonably be inferred. Acceptance of dedication by or on behalf of the public can be established by use, or in appropriate circumstances by other evidence, but must be shown by or inferred from probative evidence. If a landowner is taken to have fenced against a highway, there is a rebuttable presumption that the land between the fence and the made up or metalled surface of the highway has been dedicated to public use as a highway and accepted by the public as such.’ The road had been widened by the private frontagers and there was no significant public useage.
Laws, Lloyd, Sullivan LJJ
[2010] EWCA Civ 112
England and Wales
Updated: 14 August 2022; Ref: scu.401794
The petitioner complained that the responders had constructed various properties near her house in such a way as to redirect large volumes of run-off water onto her property.
Held: The petition was dismissed. The petitioner had not relevantly averred circumstances that would give her a title to sue under the statutory provisions to which she referred. Nor did her averments show that the respondents were in breach of their respective duties under the statutes or that they had in any way acted ultra vires.
Lord Wheatley, Lord Hardie, Lord Marnoch
[2010] ScotCS CSIH – 15, 2010 GWD 9-146, 2011 SLT 196
See Also – Anderson v Shetland Islands Council and Another SCS 15-Nov-2011
. .
Appeal from – Anderson v Shetland Islands Council and Another SC 29-Feb-2012
The claimant sought leave to appeal. Each party now sought security for costs against the other. Her action related to water damage to her house said to have been caused by road mprovements and building works erected by and with the approval of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.401009
Application for surrender of formerly mortgaged property.
Park J
[2005] EWHC 2455 (Ch)
England and Wales
Updated: 14 August 2022; Ref: scu.542492
Lloyds sought to claim against the Names on a ‘pay now, sue later’ clause.
Held: The power to order a stay of execution for possession remained and could be exercised in an appropriate case even though a cross-claim under which it was requested, could have been raised at an earlier stage in the proceedings. There was no hard rule of law to prevent such a request.
Jacob J said: ‘The other point urged upon me was the ‘pay now sue later’ clause. Mr Garrow had agreed that if he was to bring a cross claim he would nonetheless pay the claim at once. This is of course true, and if he had the means then I have no doubt that he should be made to do so. But I am concerned with whether the draconian effect of the bankruptcy should be imposed when he may have a perfectly good cross claim. It seems to me that this would be disproportionate, given the fact that with the Commercial Court decision likely soon, there is no tangible benefit to be had.’
Jacob J
Times 18-Jun-1999, [1999] BPIR 668
England and Wales
Appeal from – Garrow v Society of Lloyd’s CA 28-Oct-1999
A proper counterclaim against Lloyd’s of London for fraudulent misrepresentation with an amount at stake equal to the amount claimed was a proper basis for setting aside a statutory demand for a sum due to Lloyd’s, despite the existence of a deed . .
Cited – Remblance v Octagon Assets Ltd CA 17-Jun-2009
A statutory demand was served against the guarantor of the lease after rent arrears arose. He applied for the demand to be set aside, and now appealed against its refusal. He said that the court would have set aside such a demand against the tenant, . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.80759
Interim injunction discharged because specific performance action was crown proceedings.
Times 16-Nov-1995
Crown Proceedings Act 1947 23(2)(a)
England and Wales
Updated: 14 August 2022; Ref: scu.80552
The claimant sought the right to moor his houseboats on the Grand Union Canal, a waterway regulated by the defendant who issued licences. The claimant said that rights granted under the 1793 Act survived the new scheme. The defendant said that a public right to navigation would not include a mooring right. The claimant said that his rights were ancillary to his ownership of the riparian land.
Held: The substantial issues were for trial, but a costs order had been made against which the claimant appealed. To the extent that the claimant’s point had been taken, the costs order was varied.
Mummery LJ, Arden LJ, Elias LJ
[2010] EWCA Civ 42
Grand Junction Canal Company Act 17, British Waterways Act 1983 8
England and Wales
Appeal from – Moore v British Waterways Board ChD 12-Mar-2009
. .
See Also – Moore v British Waterways Board ChD 10-Feb-2012
The claimant said that the defendant did not have the powers it claimed in serving notices requiring him to remove boats from a section of the Grand Union Canal.
Held: The respondent did have the power under section 8 of the 1983 Act. As a . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 August 2022; Ref: scu.396598
[2009] EWHC 658 (Admin)
Wildlife and Countryside Rights of Way Act 1981
England and Wales
Updated: 13 August 2022; Ref: scu.327999
Trial of a claim by the Prosecutor against the Third Claimant that it was not the true (or the sole) beneficial owner of a flat in London’s Docklands which had previously been identified as part of the realisable assets of the Defendant when a confiscation order was made against him by the Crown Court.
[2009] EWHC 1826 (QB), [2009] STI 2196, [2009] WTLR 1365, [2009] Lloyd’s Rep FC 673, [2009] STC 2466
England and Wales
Updated: 13 August 2022; Ref: scu.368662
[2007] NICh 2
Northern Ireland
Updated: 13 August 2022; Ref: scu.253585
RESTRICTIVE COVENANTS – discharge – house – restriction on use to private dwellinghouse or learned or artistic profession – whether restriction obsolete – Law of Property Act 1925, s84(1)(a).
[2004] EWLands LP – 51 – 2003
England and Wales
Updated: 13 August 2022; Ref: scu.225826
Appeal against footpath modification orders.
Hidden J
[1998] EWHC Admin 807
England and Wales
Updated: 13 August 2022; Ref: scu.138928
(Bahamas) Latest of a number of appeals to the Board raising questions of title to land in the Bahamas, arising under the Quieting Titles Act 1959. This statutory jurisdiction to resolve, after judicial enquiry, uncertainties as to title to unregistered land by the issue of certificates of title is of particular utility in the Bahamas
[2018] UKPC 27
Commonwealth
Updated: 11 August 2022; Ref: scu.631400
(Mauritius) Issues about the admissibility and validity of a document described as a ‘ contre lettre ‘ for the purpose of affecting (to use a neutral word) the terms of a notarised registered deed of purchase of real property. An unusual feature about the facts of this case, which led to the disagreement between the first instance judge and the Court of Appeal about the outcome, is that the deed and the supposed contre lettre are separated in time by 14 years.
[2018] UKPC 29
Commonwealth
Updated: 11 August 2022; Ref: scu.631403
[2014] ScotSC 104
Scotland
Updated: 11 August 2022; Ref: scu.542862
[1724] EngR 73, (1724) Comb 469, (1724) 90 ER 596 (B)
England and Wales
Updated: 11 August 2022; Ref: scu.389177
Appeals against a decision upholding the decision of a planning inspector confirming an order by the Dorset County Council adding a length of footpath to the Definitive Map and Statement.
Sir Andrew Morritt Ch, Scott Baker, Moses LJJ
[2009] EWCA Civ 1406, [2010] NPC 2
Wildlife & Countryside Act 1981 53(2)(b)
England and Wales
Updated: 11 August 2022; Ref: scu.392514
(Trinidad and Tobago)The appellant claimed to have taken possession of land adverse to its paper owner, the respondent. The respondent said that the occupation had been by virtue of a tenancy which she had terminated.
Lord Rodger, Lord Walker, Lord Collins, Lord Kerr, Sir Christopher Rose
[2009] UKPC 51
Cited – Smith v Poulter 1947
The court has a duty to see whether a tenant is entitled to statutory protection, even if the point is not pleaded or raised by the tenant. . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2022; Ref: scu.384073
Application for judicial review of decision not to quash footpath order.
Sullivan J
[2007] EWHC 3167 (Admin)
Countryside and Rights of Way Act 2000 , Highways Act 1980 118B
England and Wales
Updated: 09 August 2022; Ref: scu.271204
Application to quash decision refusing to confirm downgrading of bridleway.
Sullivan J
[2006] EWHC 2703 (Admin)
Wildlife and Countryside Act 1981 53(2)(ii)
England and Wales
Updated: 09 August 2022; Ref: scu.245973
The seller had overstated the size of the property by 40%. The buyer sought rescission.
Held: A misdescription of a property must be so substantial as to deprive a purchaser of his bargain before he can claim rescission. Whether a misdescription is substantial or not is one of fact for the court to decide in the circumstances of each particular case
[1957] 1 WLR 19
England and Wales
Updated: 09 August 2022; Ref: scu.219194
[2020] EWHC 3007 (Ch)
England and Wales
Updated: 09 August 2022; Ref: scu.656288
[2016] UKFTT CR – 2015 – 0008 (GRC
England and Wales
Updated: 08 August 2022; Ref: scu.563304
Jacob, Rimer LJJ, Kitchin J
[2009] EWCA Civ 1295
England and Wales
Updated: 07 August 2022; Ref: scu.381730
(From the Court of Appeal of the Commonwealth of the Bahamas) The court was asked whether the appellant, Mr Kenneth Higgs, has obtained, whether for himself or on behalf of the estate of his late mother, Clotilda Higgs, of which estate he and a brother of his are the executors, a good possessory title to the land in New Providence Island later described to the exclusion of the other tenants-in-common of the land, and, in particular, the respondent.
Lord Hope, Lord Scott, Lady Hale, Lord Brown, Lord Mance
[2009] UKPC 47
Updated: 07 August 2022; Ref: scu.381557
[1858] EngR 557, (1858) El Bl and El 69, (1858) 120 ER 433
England and Wales
Updated: 07 August 2022; Ref: scu.289028
Estates, hereditaments, and premises were devised to R. for life, with power to the tenant for life to make any lease of the said several estates, hereditaments, and premises, or any part or parts thereof, for twenty one years, reserving the most improved yearly rent with a condition for re-entry on non-payment so, that there should be no clause giving the lessee power to commit waste, and so as the rent should be incident to, and go along with, the reversion. Held, that this power did not authorise a lease of part of the land, with liberty to sport over the rest. Where defendant in trespass justifies in a right which he claims under the estate of tenant for life, simply as such, he must aver the continuance of the life.
[1840] EngR 685, (1840) 12 Ad and E 356, (1840) 113 ER 847
England and Wales
Updated: 07 August 2022; Ref: scu.310111
Whether there has been an extinguishment of easements is a question of fact and degree in each case.
Nourse LJ
(1989) 58 P and CR 163
England and Wales
Cited – Rysaffe Trustee Company (CI) Ltd and Another v Ataghan Ltd and others ChD 8-Aug-2006
Complex family trusts had been created over many years. Various documents were now disputed, and particularly the extent of land demised by a lease, and whether a surender of a lease had occurred. Landslides had disturbed the boundaries of the land. . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.245080
The tribunal considered the compulsory acquisition of land for the construction of a spine road through a housing development, where rule (3) of the Rules had been considered in the context of whether the land held the key to its completion.
Held: In so far as the reference land attracted a special value as the key to the completion of the spine road, rule (3) in the section would exclude such special value. Within the terms of rule (3), the reference land possessed the quality of special suitability for building the spine road. The market for such a purpose would be limited. In this case, the special suitability of the reference land for the purpose of building the spine road should not be taken into account because for that purpose there is no market apart from the requirements of Eastleigh or the special needs of Mill Lodge on behalf of Eastleigh’
E C Strathon FRICS
(1978) 250 EG
England and Wales
Cited – C F and M G Roberts v South Gloucestershire District Council LT 31-Dec-1994
LT COMPENSATION – Compulsory purchase of land for the construction of a road – value – assumed planning permission – value of minerals – planning permission for a commercial minerals operation not granted or to . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.188855
Warnborough (W) sold real property to Garmite (G), leaving the purchase price outstanding but secured by a mortgage in favour of W. G also granted W an option to repurchase the property. The issue was whether the option to repurchase was ‘a clog on the equity of redemption’.
Held: The appeal was allowed with the result that the issue as to the character of the transaction had to be determined at a subsequent trial.
Jonathan Parker LJ referred to the need to assess the real nature and substance of the transaction. The Court had to look at the ‘substance’ of the transaction and to enquire as to the true nature of the bargain which the parties had made. To do that, the Court examined all the circumstances, with the assistance of oral evidence if necessary. Where the alleged ‘clog’ was entered into against the background of a sale of the property, by the grantee of the option as owner of the property to the grantor, for a price left outstanding on mortgage there must be ‘a very strong likelihood’ that on an examination of all the circumstances the court would conclude that the substance of the transaction was one of sale and of purchase and not one of mortgage. The transaction undoubtedly involved a genuine and enforceable mortgage. The court’s approach did not involve a finding that the mortgage was ineffective or had some other character but rather that the part of the transaction which involved a mortgage was not to be regarded as the dominant part of the transaction, which identified the character of the transaction. The transaction was a composite of its parts and although one part of the transaction involved a mortgage, the legal character of the composite transaction was a transaction of sale and purchase. The court rejected the argument that the sale was ‘incidental to the loan’ as turning the transaction ‘on its head’.
Lord Justice Simon Brown Lord Justice Judge Lord Justice Jonathon Parker
[2003] EWCA Civ1544
England and Wales
Cited – G and C Kreglinger v The New Patagonian Meat and Cold Storage Company HL 20-Nov-1913
Mortgagor’s collateral dvantage is not a clog
The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The . .
Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.187543
The defendant owned a bridge which attracted large numbers of feral pigeons. Although the owner was not at fault, they were held liable to contribute to the local authority’s costs of steps taken, by surfacing the bridge to deal with the nuisance. The number of pigeons were enough to constitute a public nuisance, and the defendants became liable where they had not remedied the nuisance after a reasonable time. The fact that the pigeons were wild, and that the nuisance was one of inconvenience rather than the causing of actual damage were not relevant. The local authority’s request was reasonable.
Gazette 07-Sep-2000, Times 12-Oct-2000, Gazette 02-Nov-2000
England and Wales
Appeal from – Wandsworth London Borough Council v Railtrack plc CA 30-Jul-2001
Where the defendant land-owner was aware of a nuisance on his land, and had both the reasonable opportunity, and the means to abate it, he had a duty to abate the nuisance. It did not matter that the nuisance may have its creation in the acts of . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.90288
Land with an existing use value of andpound;3,000 had been valued by the Lands Tribunal for purchase at andpound;2.15m.
Held: The ransom value decision by the Lands Tribunal was not wrong in law and was upheld. It was necessary to value the land by imagining the state of affairs that would have existed in the no-scheme world but assuming that planning permission existed for the scheme development. ‘In order correctly to apply the Point Gourde principle it necessary, first, to identify the scheme and, secondly, its consequences. The valuer must then value the land by imagining the state of affairs, usually called ‘the no-scheme world’, which would have existed if there had been no scheme.’
Lord Justice Nourse Lord Justice Beldam Lord Justice Simon Brown
Times 20-Jul-1994, (1994) 2 EGLR 32, (1994) 68 P and CR 391
England and Wales
Cited – Batchelor v Kent County Council CA 1989
The Council had compulsorily acquired land for highway improvement. It was within an area scheduled for residential development. Outline permission for development of neighbouring land had been granted but the development could not proceed until the . .
Cited – C F and M G Roberts v South Gloucestershire District Council LT 31-Dec-1994
LT COMPENSATION – Compulsory purchase of land for the construction of a road – value – assumed planning permission – value of minerals – planning permission for a commercial minerals operation not granted or to . .
Cited – Bolton Metropolitan Borough Council v Tudor Properties Ltd and Others CA 19-Apr-2000
The court had to consider the compensation to be awarded on the compulsory purchase of land.
Held: The appeal failed. The tribunal had not erred in ascertaining the extent of the underlying scheme. In deciding that, they were entitled to have . .
Cited – J A Pye (Oxford) Limited v Kingswood Borough Council CA 6-Apr-1998
The purchase of land which was to form the last part of a development was to be valued without taking account of the enhanced value which would be attributed to the much larger scheme of development. To ascertain what is to be ignored by the valuer . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.90296
Where land had been charged to a bank to secure partnership borrowings, and partners were described as ‘borrowers’ and chargors as ‘mortgagor’, a non-partner chargor was not under an implied obligation himself to repay the borrowings.
Times 04-Nov-1998
England and Wales
Updated: 06 August 2022; Ref: scu.80449
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. He said that the defendant had impliedly supported his actions and could not now object. The defendant refused to provide a transfer to complete, and the claimant sought specific performance and damages.
Held: The court preferred the defendant’s evidence. A person’s behaviour will not usually be regarded as having been unconscionable unless it has had also an effect on the other person and caused him to act to his detriment. The covenant here went beyond approval of plans to an outright right to prohibit. The claimant’s delay did not oust his right to damages. However he had himself caused damage by not completing the sale, linking this to the breach of covenant, and was liable for such.
Bernard Livesey QC
[2005] EWHC 151 (CH)
England and Wales
Cited – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Shaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .
Cited – Habib Bank Ltd v Habib Bank AG Zurich CA 1981
A combination of defences based on delay was pleaded in a passing off action objecting to the use of a name which the defendants had been using without objection for many years. A permanent injunction was claimed.
Held: Oliver LJ said as to . .
Cited – 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 . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Amec Developments Limited v Jury’s Hotel Management (UK) Limited 2001
A hotel had been built so as to encroach across a building line in breach of covenant, allowing the hotel to have 25 more rooms than it would otherwise have enjoyed. The court considered conflicting evidence as to the capital value of the additional . .
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.222984
The plaintiff sold property to the defendant, covenanting not to sell a piece of adjoining land without giving the defendant: ‘the first option of purchasing . . at a price to be agreed upon provided that any such offer for sale shall only remain open for a period of three months from the date on which the said offer for sale is made open by the vendor’. The plaintiff wished to sell the land to someone else. She issued an originating summons seeking to escape her obligations under this provision, suggesting that the provision was not legally binding, since it did not state a price or a method of determining a price, and that it was merely an agreement to agree.
Held: There was no uncertainty as there was agreement that there would be an offer to sell the land should the vendor decide that they wanted to sell. There was no need for the price to be agreed upon, or for a mechanism for determining the price to be agreed upon, because the agreement was simply that an offer for sale would be made.
Brightman J rejected the argument that the provision was a mere agreement to agree: ‘[the] obligation on the vendor, should she wish to sell, is an obligation to make an offer to the purchaser at the price and at no more than the price at which she is, as a matter of fact, willing to sell.’ In putting forward a price, the vendor was obliged to act in good faith: ‘The plaintiff must, of course, act bona fide in defining the price to be included in the offer. It is a matter of fact. If the plaintiff is proposing to sell by auction, the price to be specified in the offer to the defendant would be the intended auction reserve. If she is proposing to sell by private treaty the price to be specified in the offer would be the price intended to be named in the estate agent’s particulars, or the lower price, if any, to which the plaintiff is, as a matter of fact, prepared to descend on such a sale.’
Brightman J
[1971] 1 WLR 803, [1971] 2 All ER 1500
England and Wales
Cited – Fraser v Thames Television Ltd QBD 1984
Three actresses, an all girl group called ‘Rock Bottom’ and their composer and manager developed an idea for a television series based on the group and their lives. The television company’s head of drama said she would commission a pilot script. . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.540360
The court ordered rectification of the land register where not to do so would give the then registered proprietor an unattractive and uncovenanted ransom position.
[2005] EWHC 36 (Ch)
England and Wales
Cited – Sainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc ChD 17-Jun-2005
The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.222659
The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s agent.
Edward Nugee QC
Ind Summary 24-Jul-1995, Times 27-Jun-1995, Gazette 13-Jul-1995, [1996] Ch 1
England and Wales
Appeal from – Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another CA 1-Dec-1995
The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.81153
The existence of a local land charge was not a matter going to the title of the property, but was something to be dealt with properly and simply in the normal course of the conveyancing process, and so could not be used as founding the right of a vendor unwilling to remove the charge, to rescind the contract. In any event, in this case, the request by the vendor for further time to comply with the request operated to remove any right to rescission.
Times 28-Feb-2000
England and Wales
Updated: 06 August 2022; Ref: scu.81343
Mr Justice Zacaroli
[2020] EWHC 3520 (Ch)
England and Wales
Updated: 05 August 2022; Ref: scu.656916
Mr Justice Marcus Smith
[2021] EWHC 70 (Ch)
England and Wales
Updated: 05 August 2022; Ref: scu.657512
[2009] NICA 50
Updated: 05 August 2022; Ref: scu.377878
The plaintiff told the defendant it was willing to grant a lease on the same terms as those contained in a new tenancy that the plaintiff had recently granted to the tenant of a nearby shop, also owned by the plaintiff. The defendant carried out improvements in reliance on that assurance.
Held: The plaintiff was bound to grant the lease in question. It is not open to the court to impose an agreement because it would have been reasonable for the parties to agree or because, if the importance of an immediate agreement had been more clearly understood at the time, the parties might well or probably have so agreed.
Referring to the AG of Hong Kong case, Ralph Gibson LJ said: ‘In that case, there was express use of the phrase ‘subject to contract’ and its effect was fully understood by both sides. In this case there were no such words. The right, however, not to proceed with negotiations for the contract exists independently of the use of that phrase, which is required, normally, in circumstances where an express agreement in writing is apparently reached which would constitute an enforceable agreement but for the use of that phrase.’
Ralph Gibson LJ
[1991] 2 EGLR 257, (1990) 62 P and CR 33
England and Wales
Explained – Attorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd PC 1987
An agreement in principle was marked ‘subject to contract’. The Government would acquire some flats owned the plaintiff Group of companies in return for the Government granting, inter alia, a lease to the Group of some Crown lands. The Government . .
Cited – Hussein Walji, Zulikar Walji, Mohammed Iqbal Walji, Hussain Walji v Mount Cook Land Limited CA 21-Dec-2000
The claimants sought a new lease under the Act. They were assignees and sureties of an underlease of the premises, but a new underlease had been taken by a company through which the partnership had intended to trade. The partnership had paid rent in . .
Cited – Parker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
Cited – Willis v Hoare 1999
Auld LJ said of Crabb: there ‘could be no doubt as to the nature and extent of the remedy required to give effect to [the] equity’. Of JT Developments ‘the nature and terms of the equity were readily identifiable’. Auld LJ said: ‘There may be . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Cited – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2022; Ref: scu.184138
A conveyance to joint tenants required any severance of the joint tenancy, to be recorded by endorsing the notice of severance on the transfer. The joint tenancy was purported to be severed, but no notice was endorsed. The failure to endorse the notice could not defeat the validity of the severance. The purpose of the clause was to assist any purchaser in obtaining good title, and was not intended to limit the effect of any severance as between the tenants.
Gazette 17-Dec-1999, Gazette 20-Jan-2000, Times 08-Feb-2000
England and Wales
Updated: 05 August 2022; Ref: scu.81050
A party sought to enforce a notice exercising a right of pre-emption. The defendant purported to withdraw it.
Held: An offer (once made) can be withdrawn at any time before it has been converted by acceptance into a binding contract.
Mustill LJ said: ‘. . the test for an implied term is not whether it might have been sensible to include such a provision in the contract, but whether the contract will work properly without it. To my mind, the contract will work perfectly well without any provision that the mechanism once started can never be stopped without the vendors’ consent. I would not imply any such term.’ and ‘. . I am not sure that the offer referred to in the Fifth Schedule [of the conveyance in which the right of pre-emption was reserved] really is an offer in the ordinary sense, which to my mind connotes a voluntary invitation by the offeror to the offeree to enter into a contractual relationship. Here the offer is not voluntary in the true sense, for the existing contractual arrangements already required the purchasers to make what is called ‘the offer’, if they were to have the opportunity to sell their land to a third party. I see the ‘offer’ as simply being part of the contractual procedure which must be gone through if the purchasers are to carry out a sale. As such, it is a signal to the vendors that their right of pre-emption has become available, and for the reasons already stated there is nothing in the conveyance to prevent the purchasers from recalling this signal and stopping the procedure in its tracks if the vendors have not already availed themselves of it.’
Lord Justice Mustill, Lord Justice Beldam and Lord Justice Leggatt
[1992] EGLR 195
England and Wales
Cited – Tiffany Investments Ltd and Another v Bircham and Co Nominees (No 2) Limited and others CA 4-Dec-2003
The tenancy was a long lease at a low rent under the 1954 Act, and so had continuing protection under the 1977 Act whilst occupied by the original tenant. The lease was assigned and registered. It had been conditional upon an application to purchase . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2022; Ref: scu.192029
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 ‘if the court finds itself unable on the material before it to reach a sure conclusion on the construction’ of the contract and that the rule ‘is not itself a factor to be taken into account in reaching the conclusion’ as to whether or not an ambiguity exists.
Here, the words ‘without any regrant’ in the context of a lease back arrangement mean only ‘without any words of regrant’.
Considering the presence of a gate and its effect on the use of a right of way, Sir John Pennycuick said: ‘But the gate remains, to our mind, a factor of the first importance. Mr. Vinelott referred to cases in which it was held that the owner of a dominant tenement, having once established his right of way, is entitled to remove an obstacle which obstructs it: See Bulstrode v Lambert [1953] 1 WLR 1064 and Keefe v Amor [1965] 1 QB 334 in the Court of Appeal. But that does not mean that the existence of the obstruction at the time of the reservation is any the less an important factor in determining whether the right of way has been established at all.’
Sir John Pennycuick, Russell and Orr LJJ
[1975] 1 WLR 468, [1973] 3 All ER 902
England and Wales
Cited – Bulstrode v Lambert ChD 1953
The parties disputed the effective extent of an easement which gave an express right to pass and repass providing access across a yard to a side door at premises on which a business was conducted at the time of the grant.
Held: The court . .
Appeal from – St Edmundsbury v Clark (No 2) ChD 1973
Megarry J described the presumption that a conveyance of land abutting a highway or river passes with it the the adjoining half of that road or river: ‘Various reasons had been given for the presumption. It has been based on convenience and the . .
Cited – Partridge and others v Lawrence and others CA 8-Jul-2003
The appellants challenged a finding as to the width of a right of way over their land as exercised by the respondents.
Held: The appeal was allowed in part. Peter Gibson LJ said: ‘The claimants now have the security that this court is . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Cited – Minor 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 . .
Cited – 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 . .
Cited – Thompson v Bee and Another CA 20-Nov-2009
The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, . .
Cited – Wilkinson and The Estate of Brian Wilkinson v Farmer CA 22-Oct-2010
The court considered whether there was a compelling reason to allow a second application for leave to appeal against an order settling the width of a right of way.
Held: The appeal was allowed. Very limited facts could be established from the . .
Cited – AJ 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.
Updated: 05 August 2022; Ref: scu.197724
The parties disputed the excessive use of a right of way by the defendant’s tenants. The claimant appealed against rejection of its claim of trespass.
Longmore, Moses, Rimer LJJ
[2009] EWCA Civ 1089
England and Wales
Cited – Sheffield District Railway co v Great Central Railway Co 1911
(Rail and Canal Commissioners) The Sheffield District Railway agreed (in a contract appended to a special Act of Parliament, with the Lancashire, Derbyshire and East Coast Railway for the operation of a short line with two stations by means of which . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.377237
[2009] ScotCS CSOH – 126
Updated: 04 August 2022; Ref: scu.375186
Appeal against refusal on stay of order for sale of house to pay costs after loss in litigation.
[2009] EWCA Civ 896
England and Wales
See Also – Wallace and Another v Crossley and Another CA 2-Nov-2005
The defendants sought leave to appeal against an order acknowledging a drainage easement over their land. The easement of drainage was subject to a condition that it did not come to be a nuisance. It was found so to have become.
Held: The . .
See Also – Wallace and Another v Crossley and Another CA 24-Jul-2009
. .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.374422