Category: Land

Bermingham v Sher Bros: HL 31 Jan 1980

The claimant sued as widow and administratix of her deceased firefighter’s estate. He had died a fire in a building occupied by the respondent.
Held: Her appeal failed: ‘the respondents, as occupier of those premises, owed no duty to firemen such as the appellant’s deceased husband who entered the premises for the purpose of fighting a fire there, to provide them with a means of access and egress which would remain safe during the fire.’

Citations:

[1980] UKHL 16, 1980 SLT 122, 1980 SC (HL) 67

Links:

Bailii

Statutes:

Occupiers’ Liability (Scotland) Act 1960 2(10

Jurisdiction:

Scotland

Land

Updated: 22 July 2022; Ref: scu.279744

Anderson v Lambie: HL 25 Jan 1954

As the result of a mistake, a disposition of property conveyed the entirety of an estate which consisted mainly of a farm, but also included other property. The preceding missives of sale were capable of more than one meaning as to the extent of the subjects to be conveyed. The evidence established that the missives had themselves been preceded by an oral agreement for the sale of the farm alone.
Held: The appeal succeeded and the decision of the First Division reversed. Such problems with this type of mistake in expression could not be resolved by construing the document as it stood, unlike a mistake in expression which was obvious on the face of the document. Neither was this a situation where an agreement was vitiated by error: ‘in the present case the error only arose after the parties had reached agreement’. There must nevertheless be a remedy.
However, it was incompetent under Scots law for a defectively expressed document to be corrected by the court so as to give effect to the true agreement between the parties.
Lord Keith of Avonholm said that reduction was available in the event of a conveyance or contract ‘being expressed as regards essentials in different terms from what the parties really intended and had agreed between them’.
As to the remedy of reduction, Lord Reid said: ‘But, when it is sought to reduce a deed, it is necessary to go behind the deed and discover the real facts. The fact that the parties agreed to the missives is important evidence but it is not the only competent evidence. The question is not what the missives mean: if that were the question, the ordinary rule would apply that the meaning of a document must be found from its terms. The question is whether the real facts are such that the disposition must be reduced, and the existence of the missives does not alter the nature of the inquiry.’

Judges:

Lord Reid, Lord Keith of Avonholm

Citations:

[1954] UKHL 3, [1954] 1 WLR 303, [1954] 3 All ER 157 (Note), 1954 SLT (Notes) 22, 1954 SLT 73, 1954 SC (HL) 43

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Krupp v John Menzies Ltd SCS 16-May-1907
kruppSCS1907
The court considered whether there had been an error in the contract and how it should be dealt with. Lord President Dunedin said: ‘it is a very delicate matter to interfere with a written contract expressed in clear terms, and that parole proof . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land, Litigation Practice, Contract

Updated: 22 July 2022; Ref: scu.279713

Armia Ltd v Daejan Developments Ltd: HL 21 Feb 1979

The respondents had sought specific implement of an obligation under missives for the payment of the purchase price of land.
Held: There can be no abandonment of a right by way of confession unless the party concerned is aware that he has the right in question and acts in such a way as to show that he has in fact abandoned it. Lord Keith of Kinkel he set out the definition of waiver and the courts approach thereto: ‘The word ‘waiver’ connotes the abandonment of a right. (See: Banning v Wright [1972] 1 WLR 972 per Lord Hailsham of St Marylebone LC at p. 979, Lord Reid at p. 981). The abandonment may be express, or it may be inferred from the facts and circumstances of the case . . I conclude from these cases that the question whether or not there has been a waiver of a right is a question of fact, to be determined objectively upon a consideration of all the relevant evidence.’

Judges:

Diplock, Edmund-Davies, Fraser of Tullybelton LL

Citations:

[1979] UKHL 8, 1979 SLT 147, 1979 SC (HL) 56

Links:

Bailii

Jurisdiction:

Scotland

Contract, Land

Updated: 22 July 2022; Ref: scu.279743

Smith v UMB Chrysler (Scotland) Ltd: HL 9 Nov 1977

The principles set out in Canada Steamship apply to ‘clauses which purport to exempt one party to a contract from liability’. The principles should be applied without ‘mechanistic construction’.
Lord Keith of Kinkel said: The tests were guidelines, but ‘guidelines’ but ‘the matter is essentially one of the ascertaining the intention of the contracting parties from the language they have used, considered in the light of surrounding circumstances which must be taken to have been within their knowledge.’

Judges:

Lord Wilberforce, Viscount Dilhorne

Citations:

[1978] 1 WLR 165, [1977] UKHL 7, 1978 SLT 21, [1978] 1 All ER 18, 8 BLR 1, 1978 SC (HL) 1

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Approved – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .
Cited – Gillespie Bros and Co Ltd v Roy Bowles Transport Ltd CA 1973
The court looked at how it should construe the Canada Steamship guidelines with regard to an exemption clause absolving one party of responsibility for negligence. There was a express reference to negligence by the words ‘save harmless and keep . . . .
Dicta approved – Hollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .
Cited – Alderslade v Hendon Laundry Ltd CA 1945
Exclusion allowed where only one possible cause of
Articles were sent by the plaintiff to the defendants’ laundry to be washed, and they were lost. In an action by the plaintiff against the defendants for damages, the defendants relied on the following condition to limit their liability: ‘The . .

Cited by:

Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
Cited – Stent Foundations Ltd v M J Gleeson Group Plc TCC 9-Aug-2000
The defendant company sought to rely upon an exemption clause.
Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – Gray v Fire Alarm Fabrication Services Ltd and others QBD 3-Mar-2006
The deceased, a maintenance engineer died after falling through a skylight at work. The court considered the respective liabilities of his employer and the landowner. . .
Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
Cited – Circle Freight International Ltd v Medeast Gulf Imports Ltd CA 1988
The court considered the effect of a driver’s behaviour on the ability to claim under his insurance policy, on the basis that his behaviour would constitute ‘wilful misconduct’. Taylor LJ: ‘Mr Malins has sought to argue that although Huggins (the . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 22 July 2022; Ref: scu.279741

Walker v Whitwell: HL 15 Dec 1915

A witness to a deed cannot adhibit his signature to the deed after the death of the party to whose signature he was a witness.

Judges:

Earl Loreburn, Lord Dunedin, Lord Atkinson, Lord Shaw, and Lord WrenBury

Citations:

[1915] UKHL 6, 1916 SC (HL) 75, 1916 1 SLT 2, [1915] UKHL 129, 53 SLR 129

Links:

Bailii, Bailii

Statutes:

Conveyancing (Scotland) Act 1874

Jurisdiction:

Scotland

Land

Updated: 22 July 2022; Ref: scu.279672

Barrett v Barrett: ChD 19 May 2008

Claim against receiver that bankrupt’s property was held as trustee in trust for claimant. The illegal purpose was to conceal T’s interest in the proceeds of sale from the trustee in bankruptcy thus preventing him from laying claim to property which the bankrupt (as T was) acquires after his bankruptcy commences.
Held: ‘Mr Maynard submits that the tainted motive in this case is too remote to bar enforcement of T’s interest in the property or its proceeds. He points out correctly that the pleaded agreement or arrangement involved the creation of a new interest in favour of T, his original interest in the property having vested in his trustee in bankruptcy. The creation of such an interest was not of itself unlawful. The illegality lay in the failure to disclose the acquisition of this new interest to his trustee in bankruptcy.’

Citations:

[2008] EWHC 1061 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – SQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 21 July 2022; Ref: scu.267983

Barca v Mears: ChD 24 Sep 2004

The defendant appealed against an order requiring him to give possession of a house comprised in an estate.

Judges:

Nicholas Stauss QC J

Citations:

[2004] EWHC 2170 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 21 July 2022; Ref: scu.263711

Worcestershire County Council v Newman: QBD 1974

A complaint had been made to the magistrates that the authority had failed in its duty to repair pathways. The paths were crossed by fencing, by barbed wire, and vegetation had grown.

Judges:

Cairns LJ

Citations:

[1974] 2 All ER 867

Jurisdiction:

England and Wales

Cited by:

Appeal from – Hereford and Worcester County Council v Newman CA 1975
The council had been found responsible by the magistrates for allowing footpaths to be ‘out of repair’. The paths were unusable for various reasons including having a hawthorn hedge growing down the middle, and having barbed wire fencing strung . .
Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 21 July 2022; Ref: scu.237584

Owen v Highways Agency: LT 16 May 2003

LT COMPENSATION – preliminary issue – Land Compensation Act 1973 Part I – house affected by road traffic noise – whether claimant owner at relevant date – whether claim statute-barred – held claimant not entitled to make claim

Citations:

[2003] EWLands LCA – 37 – 2002

Links:

Bailii

Statutes:

Land Compensation Act 1973

Jurisdiction:

England and Wales

Land

Updated: 21 July 2022; Ref: scu.225743

Waters and others v Welsh Development Agency: LT 3 Nov 2000

LT COMPENSATION – Compulsory purchase of land for purpose of nature reserve to compensate for loss of SSSI caused by Cardiff Bay Barrage – preliminary issues – Land Compensation Act 1961 s 5 rule (3) – Pointe Gourde rule – held land had no special suitability or adaptability for purpose – rule (3) did not apply – public purpose of acquisition must be left out of account – scheme underlying acquisition was Cardiff Bay Barrage.

Citations:

[2000] EWLands ACQ – 93 – 1999, [2001] EWLands RA – 16 – 1999

Links:

Bailii

Statutes:

Land Compensation Act 1961 5(3)

Jurisdiction:

England and Wales

Citing:

Cited – Stokes v Cambridge Corporation LT 1961
The tribunal considered case concerned 5.1 ha of land with an assumption of planning permission for industrial development under Planning legislation. There was only one possible access over adjoining land in different ownership.
Held: When . .
Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .

Cited by:

Appeal From – Waters and others v Welsh Development Agency CA 28-Jun-2002
The claimant’s land was subject to a compulsory purchase order to make land available for a scheme to make possible a much larger and more valuable scheme. He asserted that the compensation should be calculated in accordance with the value of the . .
At LT – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 21 July 2022; Ref: scu.225622

In Re K, decd: ChD 2 Jan 1985

A wife had pleaded guilty to the manslaughter of her husband, though she had been subject to long term abuse by him.
Held: Relief was granted to the wife under s.2(2) of the 1982 Act. The forfeiture rule for suicide operates to sever any joint tenancy on the death. The rule applied in a case where death was not brought about intentionally, but was the unfortunate consequence of deliberate threats of violence with a loaded gun: ‘the court cannot go further and evaluate the degree of moral culpability to be attributed to her conduct in order to say whether the forfeiture rule applies or not.’ The court ordered a modification of the provision.

Judges:

Vinelott J

Citations:

[1985] Ch 85, [1985] 1 All ER 403, [1985] 2 WLR 262

Statutes:

Forfeiture Act 1982

Jurisdiction:

England and Wales

Citing:

Cited – Re Royse (Deceased) CA 1985
The wife sought to claim under the 1975 Act despite having been convicted of her husband’s manslaughter from diminished responsibility. She was the sole beneficiary under his will but was precluded by her conviction from taking any benefit under the . .

Cited by:

Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – D v L and Others ChD 16-Apr-2003
The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime, Land

Updated: 21 July 2022; Ref: scu.185182

Dano Ltd v Earl Cadogan and others: ChD 21 Feb 2003

A conveyance contained a covenant from 1929 restricting use of the land to the provision of housing for ‘the working classes.’ The land owner sought a declaration that the covenant was no longer enforceable on the grounds of vagueness.
Held: In fact the respondent no longer owned any land capable of benefiting from the covenant, and accordingly it was no longer valid. However, if the issue had been live, the court would have held that the term ‘working classes’ remained meaningful. There was no difficulty interpreting the term to accord with current useages.

Judges:

Etherton J

Citations:

Times 14-Mar-2003

Jurisdiction:

England and Wales

Citing:

Cited – Westminster City Council v Duke of Westminster ChD 1991
There was a covenant that the premises should not ‘be used for any art trade or business or profession whatsoever . . ‘ but should be ‘kept and used only for the purposes of the Grosvenor Housing Scheme as dwellings for the working classes . . ‘. . .
Cited – Guinness Trust (London Fund) v Green 1955
Terms used in older documents could be re-interpreted to accord with current usage. . .
Cited – In re Niyazi’s Will Trusts 1978
Terms in older documents could be re-interpreted to accord with current useage. . .
Appealed to – Dano Ltd v Earl Cadogan and others CA 19-May-2003
The defendants appealed against an order declaring that restrictive covenants on land of which they claimed the benefit were no longer of effect.
Held: The covenants were expressed to be in favour of property for so long as it formed part of . .

Cited by:

Appeal from – Dano Ltd v Earl Cadogan and others CA 19-May-2003
The defendants appealed against an order declaring that restrictive covenants on land of which they claimed the benefit were no longer of effect.
Held: The covenants were expressed to be in favour of property for so long as it formed part of . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 21 July 2022; Ref: scu.180091

Thomas Newell Ltd v Lancaster City Council: UTLC 8 Feb 2010

COMPENSATION – compulsory purchase – preliminary issues – planning permission – whether planning permission to be assumed on the basis that land allocated in development plan – whether any other expectation of planning permission as hope value – whether reserved matters approval pursuant to existing outline planning permission to be assumed – Land Compensation Act 1961 ss.14(2) and (3) and 16(1) and (2)

Citations:

[2010] RVR 223, [2010] JPL 811, [2010] UKUT 2 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Thomas Newall Ltd v Lancaster City Council UTLC 15-Dec-2011
COMPENSATION – compulsory purchase – former mill building occupied by various businesses – value – whether planning permission required to use bulk of accommodation as offices – held that it was – cost of essential repairs – whether 50 per cent . .
See Also – Lancaster City Council v Thomas Newall Ltd CA 11-Jul-2013
. .
Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 21 July 2022; Ref: scu.640531

His Majesty’s Advocate v Earl of Home: HL 7 Mar 1759

Patronage – Prescription – Possession – Competition of Right to Present.-
Held the right of patronage reverted back to the Crown by 40 years’ possession of the right of presenting, although an ancient right existed in a subject on which no possession had followed.

Citations:

[1759] UKHL 2 – Paton – 25

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 21 July 2022; Ref: scu.558280

Duke of Roxburgh v Jeffrey and Others, (Kelso Case): HL 18 Mar 1757

Burgh. – Dues and Customs- Servitude- Prescription.-
1st, Held though the merchants of Kelso could produce no charter or seal of cause, yet that they were a burgh of barony by the charter in favour of the Earl of Roxburgh erecting his lands and the town into a barony. But, 2 d, That their right of entering burgesses, andc., was subject to his regulation and control. 3 d, That they were not entitled to uplift the dues and customs, and their claim to have the past dues and customs applied to the common good of the burgh was prescribed. 4 th, That though they had immemorial possession of a right of bleaching skins, and drying and washing linen on the island of Ana, yet they had not acquired any servitude over it.

Citations:

[1757] UKHL 1 – Paton – 632

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 21 July 2022; Ref: scu.558238

Alexander Govan or Givan v Agnes Simpson or Govan: HL 26 Mar 1759

Possession on Adjudication – Redemption – Heritable Creditor – Assignation.
Held that though possession had followed on an adjudication, the legal of which was expired, but no infeftment had followed, that the right was still redeemable, and that when such preferable heritable creditor gets possession of the estate, over which his own and other securities extend, a second creditor, who offers payment of the preferable debt so secured, is entitled to come in his place, and demand an assignation to his debt: also held, that this doctrine applied to a widow who had her liferent jointure secured over the estate, and that she was in the eye of law a creditor, entitled to such an assignation on offering payment.

Citations:

[1759] UKHL 2 – Paton – 27

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 21 July 2022; Ref: scu.558278

Dennis and Another v Davies (B20 (Ch)): ChD 21 Nov 2008

The claimants sought to enforce a restrictive covenant to restrain a neighbour building an extension.
Held: A building could be a source of annoyance and therefore a breach of the particular covenant. The requirement for the builder’s permission was not inconsistent with an additional duty under the covenant. The test for annoyance the test is an objective one and must be judged by robust and common sense standards. The building could well be a source of annoyance and a breach of the covenant. An extension also did amount to a building within the covenant, and required the developer’s consent. The document relied on for this purpose was not such.

Judges:

Behrens J

Citations:

[2008] EWHC B20 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Tod-Heatley v Benham 1888
What was ‘annoyance’ between neighbours
The court considered how to construe a covenant in a lease ‘nor do or wittingly or willingly cause or suffer to be done any act, matter, or thing in or upon or about the said premises, which shall or may be or grow to the annoyance, nuisance, . .
Cited – Wood v Cooper 1894
There was a long lease of land with a dwellinghouse built on it. The lease contained covenants: ‘not to erect or build or cause to be erected or built upon the said piece of ground thereby demised, without the previous license in writing of the . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 21 July 2022; Ref: scu.278840

Smith and Another v Muller and others: CA 17 Dec 2008

Judges:

Tuckey LJ, Wall LJ, Rimer LJ

Citations:

[2008] EWCA Civ 1425

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Land

Updated: 21 July 2022; Ref: scu.278821

Mortell 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.

Judges:

Collins J

Citations:

[2008] EWHC 3022 (Admin)

Links:

Bailii

Statutes:

Oldham (Derker Area Phase 1 Regeneration) Compulsory Purchase Order 2006

Cited by:

Appeal From – Mortell, Regina (on The Application of) v Secretary of State for Community and Local Government and Others CA 29-Oct-2009
. .
Lists of cited by and citing cases may be incomplete.

Local Government, Land

Updated: 21 July 2022; Ref: scu.278829

Burt, Re the Ridings: LT 21 Nov 2008

LT RESTRICTIVE COVENANT – modification – dwellinghouse – covenant not to erect more than one dwellinghouse and garage – application to modify to permit one additional dwelling -whether restriction obsolete – whether proposed use reasonable – whether practical benefits of substantial value or advantage secured by restriction – whether modification would cause injury – application granted subject to payment of compensation totalling andpound;1,000 – Law of Property Act 1925, s84(1)(a), (aa),(c).

Judges:

Roce N J

Citations:

[2008] EWLands LP – 43 – 2006

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Land

Updated: 21 July 2022; Ref: scu.278635

Union Lighterage Company v London Graving Dock Company: CA 1902

Stirling LJ said: ‘in my opinion an easement of necessity means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property.’
Romer LJ said that enjoyment of a right over land will not be clam if it is of ‘such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment.’

Judges:

Stirling LJ, Romer LJ

Citations:

[1902] 2 Ch 557

Jurisdiction:

England and Wales

Cited by:

Cited – Adealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
Cited – Sweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .
Cited – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 21 July 2022; Ref: scu.253279

Ough v King: CA 1967

A claim was made for breach of a right to light. The defendant relied on Waldram diagrams to demonstrate that the new extensions did not reduce the amount of adequate light remaining available below the 50% threshold. The relevant room had a floor area of 156.5ft2; before the construction 100.25ft2 had been adequately lit; after the construction 80.25ft2 remained adequately lit. The adequately lit area had declined from 64.05% to 51.27%. The county court judge found that an actionable infringement had occurred.
Held: The defenedant’s appeal failed.
Danckwerts LJ referred to the ‘more demanding standards at the present time in the modern situation’.
Diplock LJ referred to the 50:50 rule as ‘a convenient rule of thumb’ in the 1920s ‘and perhaps later’.
Lord Denning MR: ‘I think the judge was entitled to have regard to the higher standards expected for comfort as the years go by. . . . In these days I would not myself be prepared to regard the 50:50 rule of Mr. Waldram as a universal rule. In some cases a higher standard may reasonably be required.’

Judges:

Lord Denning MR, Danckwerts LJ, Diplock LJ

Citations:

[1967] 1 WLR 1547

Jurisdiction:

England and Wales

Cited by:

Cited – Deakins v Hookings CC 1994
(County Court) Judge Cooke considered a claim for an alleged breach of a right of light. The well-lit area in the living room was 51% of the floor area before the development, reduced to 41% afterwards.
Held: There had been an actionable . .
Cited – Regan v Paul Properties DPF No 1 Ltd and others ChD 27-Jul-2006
The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .
Lists of cited by and citing cases may be incomplete.

Land, Nuisance, Litigation Practice

Updated: 21 July 2022; Ref: scu.244242

Lewis v Thomas: CA 1950

The landowner had resisted the inference of a grant of a public right of way over his land by closing it off on one day each year.
Held: Whether this was sufficient would depend upon the facts of each case.

Citations:

[1950] KB 438

Jurisdiction:

England and Wales

Citing:

Cited – Merstham Manor Ltd v Coulsdon and Purley UDC 1937
Where a public right of way is claimed, an interruption of the user at some point during the relevant twenty year period, such as the landowner locking a gate and preventing access, will defeat an argument based on user ‘as of right’ under section . .

Cited by:

Cited – Godmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 21 July 2022; Ref: scu.253534

Harris v Flower: CA 1904

The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way was appurtenant (‘the Pink Land’) and partly on other land (‘the White Land’). A claim was put forward on behalf of the plaintiffs that the right of way had been abandoned, on the ground that, as it was practically impossible to separate the lawful from the excessive user, the right of way could not be used at all.
Held: The appeal, based upon this contention, failed. There had been no abandonment, but the user of the way for access to the buildings so far as they were situate upon land to which the right of way was not appurtenant was in excess of the rights of the defendants, and a declaration was made accordingly, with liberty to apply. An alteration to provide for a mode of enjoyment by the dominant tenement with the effect of increasing the restriction beyond its legitimate limit will not be allowed. The use of an easement cannot be extended, beyond the scope of the grant, to impose a burden greater than that which the servient owner agreed to accept. A right to pass over plot A to reach plot B cannot be used as a means of access to plot C, unless it was so used at the time of the grant.
Vaughan-Williams LJ rejected a claim of a right of way for land the claim as excessive, on the basis that the uses for the additional land: ‘cannot be said to be mere adjuncts to the honest user of the right of way for the purposes of the Pink land . . It is not a mere case of user of the pink land with some usual offices on the White Land connected with the buildings on the Pink Land.’ and
‘I cannot help thinking that there not only may be, but there must be, many things done in respect of the buildings on the white land which cannot be said to be mere adjuncts to the honest user of the right of way for the purposes of the pink land . . under these circumstances it seems to me that, notwithstanding the fact that the buildings on the white and on the pink lands are intended to be used jointly for one purpose, yet that consideration does not exclude the inference that the use of the way is for the purpose of giving access to land to which the right of way is not appurtenant.’
The use of the factory would increase the volume of traffic on the way beyond the level permitted by the grant: ‘This particular burthen could not have arisen without the user of the white land as well as of the pink. It is not a mere case of user of the pink land, with some usual offices on the white land connected with the buildings on the pink land. The whole of object of this scheme is to include the profitable user of the white land as well as the pink, and I think access is to be used for the very purpose of enabling the white land to be used profitably as well as the pink, and I think we ought under these circumstances to restrain this user.’
Romer LJ said: ‘I think that it is impossible to say that this large building is to be regarded as if wholly erected on the land coloured pink, nor can it be said that every user of the way for the purposes of the land coloured white is one for the proper enjoyment of the land coloured pink. I will take one instance. The defendant has used, and claims a right to use, this right of way for the purpose of carrying building materials for the part of his buildings on the land coloured white. That, to my mind, is a user of the right of way for passage over the land coloured pink for the enjoyment of this land coloured white. It is impossible to say that by reason of one building being on both lands the defendant has made the right of way which was granted for the enjoyment of the one a right of way for the enjoyment of both, and that is what the defendant is really doing. That would substantially enlarge the grant of the right of way. The servient tenement is not obliged to submit to the carrying of building materials for the purpose I have indicated; and other incidences might easily be given which would result in using the right of way for purposes of the land coloured white, and not for the true and proper enjoyment of the land to which the way was appurtenant.’ and ‘The law really is not in dispute. If a right of way [is] granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B . . in the present case the defendant might have erected a building on the land coloured pink [the dominant tenement] and used it for a contractor’s business, and made use of the right of way for that purpose; but what he is really doing here is, under the guise of the enjoyment of the dominant tenement, to try and make the right of way become a right of way for the enjoyment of both lands, the pink and the white [the white land being a non-dominant tenement which the defendant also owned and which adjoined the dominant tenement], and [thereby use] the land coloured pink as a mere continuation of the right of passage from the pink to the white. That is not what is justified by the grant, and the plaintiff is entitled to say it is in excess of the grant, and a declaration in his favour ought to be made accordingly.’
Cozens-Hardy LJ said: ‘What is the right of way? It is a right of way for all purposes – that is, for all purposes with reference to the dominant tenement. The question is whether the defendant has not attempted, and is not attempting, to enlarge the area of the dominant tenement. The land coloured white is entirely landlocked by the acts of the defendant. The only access is by the passage over the land coloured pink; and it is, in my judgment, impossible to use the right of way so as to enlarge the dominant tenement in that manner.’

Judges:

Vaughan-Williams LJ, Romer LJ, Cozens-Hardy LJ

Citations:

(1904) 74 LJ Ch 127, (1904) 91 LT 816

Jurisdiction:

England and Wales

Citing:

Cited – Skull And Another v Glenister And Others 1864
A right of way appurtenant to land passes to the tenant by a parol demise of the land, though nothiiig is said about it at the time of the demise. – A, having a right of way to D close, demised the close to B. The latter, being possessed of an . .
Cited – Williams v James 1867
A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the . .

Cited by:

Cited – Wall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .
Cited – Nickerson v Barraclough CA 2-Jan-1981
The plaintiff had bought land landlocked save over a bridge and a lane beonging to the defendant leading to the highway. He claimed a right of way relying on a conditional grant from 1906, section 62 of the 1925 Act, and also asserted a way by . .
Affirmed – Peacock and Another v Custins and Another CA 14-Nov-2000
The conveyance of a field constituting the dominant land to the claimants was expressed to be subject to the benefit of a right of way over land owned by the defendants, enabling the claimants to reach the dominant land ‘at all times and for all . .
Cited – EDF Energy Networks (EPN) Plc v BOH Ltd and Others ChD 4-Dec-2009
. .
Cited – Site Developments (Ferndown) Ltd and Others v Cuthbury Ltd and Others ChD 13-Jan-2010
A covenant was made in 1926 with ‘the Vendor and his successors in title the owner or owners for the time being of the Canford Estate of which the land hereby transferred and conveyed forms part’. Vos J held that it could only be enforced by the . .
Cited – Smith and Another v Muller and others CA 17-Dec-2008
. .
Cited – Wall v Collins and Collins Chd 11-Aug-2009
The claimant sought orders to protect his freedom to use a right of way over neighbouring land. . .
Cited – Das and others v Linden Mews Ltd CA 1-May-2002
. .
Cited – Cdc2020 Plc v Ferreira CA 5-May-2005
. .
Cited – Wilkins and Another v Lewis ChD 29-Jul-2005
. .
Cited – Sinclair v Morrison, McNealis LRA 9-May-2012
LRA Easements and Profits A Prendre – Acquisition of easement by prescription; easement on foot over existing right of way granted by deed; identification of the dominant tenement; whether user as of right; . .
Cited – Williams, Williams v Madden, Goodsell, Hubbard (Easements and Profits A Prendre) LRA 17-May-2012
LRA Prescriptive right of way established by the Applicants for the benefit of their home over a strip of roadway belonging to the Respondents who were on notice of their use of that land. The use of the way with . .
Cited – Giles v Tarry and Another CA 21-Jun-2012
. .
Cited – Price and Another v Nunn CA 31-Jul-2013
. .
Applied – Jobson v Record CA 1998
A right of way was granted for all purposes connected with the use and enjoyment of the dominant tenement as agricultural land. The dominant tenement was used for the purpose of storing timber felled on neighbouring land and the question was whether . .
Cited – Miller v Tipling 1918
(Ontario Court of Appeal) Mulock CJ Ex said: ‘The law is well established that a right of way appurtenant to a particular close must not be used colourably for the real purpose of reaching a different adjoining close. This does not mean that where . .
Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 21 July 2022; Ref: scu.252423

Kine v Jolly: CA 1905

The court refused an injunction in respect of an infringement of the right to light to a dwelling house, restricting the plaintiff to a remedy in damages. Cozens-Hardy LJ: ‘I think it is impossible to doubt that the tendency of the speeches in the House of Lords in Colls v. Home Electric Stores Ltd, is to go a little further than was done in Shelfer v. City of London Electric Lighting Co., and to indicate that as a general rule the Court ought to be less free in granting mandatory injunctions than it was in years gone by.’

Judges:

Cozens-Hardy LJ, Vaughan Williams LJ, Romer LJ

Citations:

[1905] 1 Ch 480

Jurisdiction:

England and Wales

Citing:

Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Colls v Home and Colonial Stores Ltd HL 2-May-1904
The courts below had concluded that the defendant had infringed the plaintiff’s right to light, and had awarded an injunction.
Held: the appeal succeeded. The House set out the requirements for establishing the existence of a right to light. . .

Cited by:

Cited – Regan v Paul Properties DPF No 1 Ltd and others ChD 27-Jul-2006
The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Land

Updated: 21 July 2022; Ref: scu.244244

MRA Engineering Ltd v Trimster Co Ltd: CA 1987

The conveyancing process had left a house in Dorking without any access to the public highway otherwise than by public footpaths to its side and rear. The question was whether a vehicular way over land which had been conveyed to the defendants had been impliedly reserved for the house. The County Court judge had concluded on the evidence that, while it might be very inconvenient not to be able to access the house by car, it would not be said that the absence of vehicular access rendered it unusable ‘in the ordinary sense of the word’.
Held: It was not practicable to explore the presumed intention of the parties at the relevant time. Dillon LJ said: ‘It is of course well established that a way of necessity may arise by implied reservation as well as by implied grant. The law as to ways of necessity is in some respects archaic, and it may be that it was time that it was given closer consideration as against modern circumstances. As matters stand, however, there is a considerable difference between a way of necessity and a way which is implied to give effect to the presumed intention of the parties.’

Judges:

Dillon LJ

Citations:

(1987) 56 P.and C.R. 1

Jurisdiction:

England and Wales

Cited by:

Cited – Sweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 21 July 2022; Ref: scu.253282

Chantry Estates (South East) Ltd v Anderson and Another: ChD 3 Oct 2008

The claimant sought specific performance of a contract for the sale of land. The purchase was under an option agreement. The option was exercisable on the grant of planning permission within a certain period, extensible in the case of an appeal.
Held: The contract did not impose much by way of obligation on the buyer and was one sided. There was no reasonable prospect of the defendant succeeding, and summary judgment was granted.

Judges:

Morgan J

Citations:

[2008] EWHC 2457 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 24

Jurisdiction:

England and Wales

Litigation Practice, Contract, Land

Updated: 19 July 2022; Ref: scu.277022

Minister of Transport v Pettitt: CA 1967

Judges:

Russell LJ

Citations:

(1968) 67 LGR 449

Jurisdiction:

England and Wales

Cited by:

Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 July 2022; Ref: scu.640532

EE Limited and Hutchison 3G UK v Meyrick 1968 Combined Trust of Meyrick Estate Management: UTLC 9 Jul 2019

ELECTRONIC COMMUNICATIONS CODE – code rights – application to confer code rights on operator in respect of existing mast site – whether site owner intends to redevelop land and would be prevented from so doing if rights conferred – site owner proposing to remove existing monopole mast and construct own taller lattice mast for establishment of fixed wireless access broadband service over landed estate and to be made available to mobile network operators – business plan – held no firm, settled and unconditional intention to redevelop – paragraph 25(1) of Schedule 3A to the Communications Act 2003

Citations:

[2019] UKUT 164 (LC)

Links:

Bailii

Statutes:

Communications Act 2003

Jurisdiction:

England and Wales

Land, Utilities

Updated: 19 July 2022; Ref: scu.640513

Homes and Communities Agency v JS Bloor (Wilmslow) Ltd: SC 22 Feb 2017

Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case was exemplary. The appeal was allowed and the Court set aside the order of the Court of Appeal.
‘the tribunal were clearly entitled to regard the underlying policies, including the allocation in the development plan, as potentially relevant also to the prospect of development apart from the KBP scheme. The assessment of their significance in the no KBP universe was pre-eminently a matter for them. Mr Humphries does not argue otherwise. As the very experienced members of a specialist tribunal, who had also visited the area, they were well equipped for that task. Their approach appears most clearly in their concluding passage at para 96 (see above). There they properly took account of the pattern of development as seen by them on the ground, and the long history of identification of this land for substantial development. They did not ignore potential policy objections, such as under PPG3 or policy EC/6, but took the view that they would not have sufficient weight to rule out the possibility of development in the absence of the KBP scheme. That reasoning discloses no error of law.’

Judges:

Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hughes

Citations:

[2017] UKSC 12, UKSC 2015/0153

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Video summary, SC Vid 12/01/17 am, SC Vid 12/01/17 pm

Jurisdiction:

England and Wales

Citing:

Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Cited – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Appeal from – J S Bloor (Wilmslow) Ltd v Homes and Communities Agency CA 22-May-2015
The land owner challenged the amount awarded on the compulsory purchase of land. Although agricultural, it had substantial hope value with possible residential development.
Held: The assessment of compensation should be remitted to the Upper . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Cited – Camrose v Basingstoke Corporation CA 1966
Basingstoke was to be expanded to receive overspill population from London and the corporation contracted to purchase about 550 acres from a landowner on terms that the price would be assessed as though the land had been compulsorily acquired under . .
Cited – Newell and others v Secretary of State for the Environment and Another; Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment and Another HL 17-Feb-2000
Where a certificate of appropriate development was issued for land to be acquired compulsorily, the land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long . .
Cited – Thomas Newell Ltd v Lancaster City Council UTLC 8-Feb-2010
COMPENSATION – compulsory purchase – preliminary issues – planning permission – whether planning permission to be assumed on the basis that land allocated in development plan – whether any other expectation of planning permission as hope value – . .
Cited – Melwood Units Pty Limited v The Commissioner of Main Roads PC 23-May-1978
(Queensland) The Board considered the compensation payable on the compulsory purchase of land for the purpose of an expressway between Brisbane and Combabah. At the date of compulsory acquisition the project had reached the stage where it was . .
Cited – Minister of Transport v Pettitt CA 1967
. .
Cited – Jelson v Minister of Housing and Local Government CA 1969
A proposed ring road had been cancelled. The landowners applied for certificates of appropriate alternative development. The Minister confirmed the negative certificates which had been issued by the local planning authority. It was contended that . .
Cited – Rugby Joint Water Board v Shaw-Fox HL 1973
The water board obtained a compulsory purchase order to buy agricultural land adjoining a reservoir. The land was subject to protected tenancies under the 1948 Act.
Held: (Majority) Because the land subject to notices to treat was required for . .
Cited – Myers v Milton Keynes Development Corporation CA 1974
Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the ‘scheme’ meant that the . .
Cited – Jelson Ltd v Blaby District Council CA 1977
A strip of land had been originally reserved for a road, and was subsequently sold to the council under a purchase notice. A claim for compensation was made. On appeal the Minister issued a nil certificate on the basis that the correct time at which . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 July 2022; Ref: scu.575311

Attorney General (on Relation of Pickfords Ltd) v Great Northern Railway Co: HL 21 Jul 1916

Where a bridge has been constructed under the Railways Clauses Consolidation Act 1845 to carry a high road over a railway, and was originally constructed of adequate strength to carry the normal traffic of the time, is it sufficient for the railway company to maintain it of such strength, or must it provide a bridge strong enough to carry modern traffic?
Held (dis. Viscount Haldane) that they are only liable to keep it in repair as originally constructed.

Judges:

Lord Chancellor (Buckmaster), Earl Loreburn, Viscount Haldane, Lords Shaw and Sumner

Citations:

[1916] UKHL 412

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 19 July 2022; Ref: scu.630686

J S Bloor (Wilmslow) Ltd v Homes and Communities Agency: CA 22 May 2015

The land owner challenged the amount awarded on the compulsory purchase of land. Although agricultural, it had substantial hope value with possible residential development.
Held: The assessment of compensation should be remitted to the Upper Tribunal ‘to be decided without regard to the scheme of development as defined in this judgment’
Patten LJ summarised the effect of the ‘cancellation assumption’ in the present case: ‘It operates to limit the scope of any assumed planning permission to a counter-factual scenario in which the KBP scheme has been cancelled in respect of, but only in respect of, the reference land: ie as if the landowner had succeeded at the public inquiry in persuading the Inspector to omit Plots 13 and 14 from the CPO. There is no requirement to assume that the CPO would not have gone ahead in respect of the remainder of the order land or that the development of the KBP would not have proceeded . . ‘
Patten LJ said: ‘In my view, the [Upper Tribunal] was right to hold that the planning status of the reference land did have to be modified for the purposes of valuation in accordance with the ‘no KBP universe’ methodology. But it was wrong to do so by simply downgrading the strict application of the existing and emerging development plan but otherwise leaving the allocation of the land for development in place. What it should have done was to consider the planning potential of the reference land without regard to the development scheme and its underlying policies and therefore its effect on value. In that no scheme world it should have examined what wider no scheme specific policies (including but not necessarily limited to PPG3) would have applied to a planning application at the valuation date had there been no KBP and so struck a fair balance between the public interest and those of the claimant in relation to the valuation of the reference land. The assumption relied on in both parties’ submissions that policy EC/6 and developing policy EC/7 continued to apply was based on a wrong application of section 6(1) and the valuation calculated on that basis must be set aside.’

Judges:

Jackson, Patten, Sales LJJ

Citations:

[2015] EWCA Civ 540

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .

Cited by:

Appeal from – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 July 2022; Ref: scu.547070

Lancaster City Council v Thomas Newall Ltd: CA 11 Jul 2013

Citations:

[2013] EWCA Civ 802

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Thomas Newell Ltd v Lancaster City Council UTLC 8-Feb-2010
COMPENSATION – compulsory purchase – preliminary issues – planning permission – whether planning permission to be assumed on the basis that land allocated in development plan – whether any other expectation of planning permission as hope value – . .
Appeal from – Thomas Newall Ltd v Lancaster City Council UTLC 15-Dec-2011
COMPENSATION – compulsory purchase – former mill building occupied by various businesses – value – whether planning permission required to use bulk of accommodation as offices – held that it was – cost of essential repairs – whether 50 per cent . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 19 July 2022; Ref: scu.512314

Thomas Newall Ltd v Lancaster City Council: UTLC 15 Dec 2011

COMPENSATION – compulsory purchase – former mill building occupied by various businesses – value – whether planning permission required to use bulk of accommodation as offices – held that it was – cost of essential repairs – whether 50 per cent vacancy rate should be adjusted to reflect impact of proposed CPO – held that it should – rental value – hope value – yield – disturbance – compensation determined at pounds 2,001,390.95 – Land Compensation Act 1961, s9

Citations:

[2011] UKUT 437 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Thomas Newell Ltd v Lancaster City Council UTLC 8-Feb-2010
COMPENSATION – compulsory purchase – preliminary issues – planning permission – whether planning permission to be assumed on the basis that land allocated in development plan – whether any other expectation of planning permission as hope value – . .

Cited by:

Appeal from – Lancaster City Council v Thomas Newall Ltd CA 11-Jul-2013
. .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 July 2022; Ref: scu.462575

Melwood Units Pty Limited v The Commissioner of Main Roads: PC 23 May 1978

(Queensland) The Board considered the compensation payable on the compulsory purchase of land for the purpose of an expressway between Brisbane and Combabah. At the date of compulsory acquisition the project had reached the stage where it was reasonable to assume that a strip of the appellant’s land would be acquired for the expressway. The Land Appeal Court assessed compensation on the basis that the value of the land was to be arrived at by adjusting the price paid by the appellant for it in the light of the proposal. The Full Court of the Supreme Court of Queensland took the view that the question of the status and effect of the expressway proposal raised issues of fact upon the valuation but no question of law.
Held: A failure to properly apply the Point Gourde principle did disclose a question of law. The Pointe Gourde principle is part of the ‘common law deriving as a matter of principle from the nature of compensation for resumption or compulsory acquisition.’ The principle operates both with respect to the consequential enhancement and adverse effect of a scheme for public works upon resumed land. A resuming authority cannot by its project of resumption destroy the potential for the highest and best use of the land and then resume land severing it from part of the previous holding, on the basis that the destroyed potential never existed. The principle remains applicable where planning permission is refused for development for the highest and best use of the whole of the land, because of the apprehended use of part of the land for a public purpose.
Lord Russell of Killowen said: ‘Under the principle in Point (sic) Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] A.C. 565 the landowner cannot claim compensation to the extent to which the value of his land is enhanced by the very scheme of which the resumption forms an integral part: that principle in their Lordships’ opinion operates also in reverse. A resuming authority cannot by its project of resumption destroy the potential of the [land to be resumed] and then resume and sever on the basis that the destroyed potential had never existed.’
(Queensland)

Judges:

Lord Russell of Killowen

Citations:

[1979] AC 426, [1978] UKPC 10

Links:

Bailii

Jurisdiction:

Australia

Cited by:

Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .
Lists of cited by and citing cases may be incomplete.

Land, Damages, Commonwealth

Updated: 19 July 2022; Ref: scu.443340

Transport for London v Spirerose Ltd (In Administration): CA 13 Nov 2008

The parties disputed the compensation to be awarded on the compulsory acquisition of land and in particular as to whether ‘the site should be valued on the basis (a) (as the tribunal held) of its full value with planning permission for a mixed use development; or (b) as TfL argued, a percentage only of that value (‘hope value’) reflecting the probability of the permission being granted, as perceived by the market in the no-scheme world.’

Judges:

Carnwath LJ, Thomas LJ, Etherton LJ

Citations:

[2008] EWCA Civ 1230, [2008] 46 EG 115, [2009] 1 P and CR 20, [2009] JPL 760, [2009] 1 EGLR 107, [2009] RVR 18, [2008] NPC 121

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal From – Spirerose Ltd v Transport for London LT 16-Nov-2007
LT COMPENSATION – compulsory purchase – acquisition of former industrial premises – claim for loss of development value – valuation – planning permission in no-scheme world – whether planning permission that . .

Cited by:

Appeal from – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 19 July 2022; Ref: scu.277856

Coal Authority v Davidson and Another: TCC 9 Sep 2008

The authority sought to appeal orders for the purchase of the properties of the respondents by the authority after they had been damaged by coal mining works.

Citations:

[2008] EWHC 2180 (TCC)

Links:

Bailii

Statutes:

Coal Mining Subsidence Act 1991, Coal Mining Subsidence (Arbitration Schemes) Regulations 1994

Jurisdiction:

England and Wales

Land

Updated: 19 July 2022; Ref: scu.276495

Hockerill College, Regina (on the Application of) v Hertfordshire County Council: Admn 10 Jul 2008

The school sought judicial review of a decision to refuse a Special Extinguishment Order to close a footpath crossing its playing fields.

Judges:

Mackie J

Citations:

[2008] EWHC 2060 (Admin)

Links:

Bailii

Statutes:

Highways Act 1980 118B, Countryside and Rights of Way Act 2000

Jurisdiction:

England and Wales

Land

Updated: 19 July 2022; Ref: scu.276238

Rodrigues v Sokal: TCC 30 Jul 2008

The parties owned either half of a semi-detached residence. The defendant had undertaken substantial redevelopment works, and the claimant sought damages under the 1996 Act for his failures to follow that Act. The issues had been taken to arbitration.
Held: The claimants had not shown that there was any threat to their building and were not entitled to pursue the claim.

Judges:

Toulmin CMG QC J

Citations:

[2008] TCLR 11, [2008] EWHC 2005 (TCC)

Links:

Bailii

Statutes:

Party Wall etc Act 1996

Jurisdiction:

England and Wales

Citing:

Cited – Louis and Another v Sadiq CA 12-Nov-1996
There was a two-storey end of terrace house in North London owned by Mr Sadiq and his neighbours, Mr and Mrs Louis. The appellant had commenced substantial works to his house, which caused damage to the party wall. The appellant had not complied . .
Cited – Selby v Whitbread and Co 1917
McCardie J considered the tension between the common law and statute: ‘An examination of the code shows that common law rights are dealt with in a revolutionary manner. The two sets of rights . . are quite inconsistent with one another. The . .
Cited – Louis v Sadiq CA 22-Nov-1996
The defendant neighbour had carried out construction works on a joint structure involving its demolition. He had not complied with the requirements of the 1917 Act.
Held: A neighbour doing work on a party wall without complying with the . .
Cited – Roadrunner Properties Ltd v Dean and Another CA 21-Nov-2003
Where an application is made under the 1996 Act, as to the issue of causation of damage, a court can properly take a reasonably robust approach where the damage to the adjoining owner’s property is of the sort one would expect to result from the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 July 2022; Ref: scu.272797

Johnstone v Holdway: 1963

Citations:

[1963] 1 QB 601

Jurisdiction:

England and Wales

Cited by:

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

Land

Updated: 18 July 2022; Ref: scu.264032

Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd: ChD 4 Sep 2006

Dispute as to right of light – proposed development likely to breach right for dominant tenement.

Judges:

Gabriel Moss QC

Citations:

(2006) 41 EG 226, [2006] EWHC 3589 (Ch), [2007] 1 WLR 2148

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Tamares (Vincent Square) Ltd. v Fairpoint Properties (Vincent Square) Ltd ChD 8-Feb-2007
The defendant had been found liable for infringing the claimant’s right of light. The court considered the proper measure of damages.
Held: The court should ask what might be the fair result of a hypothetical negiation for the sale of the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 July 2022; Ref: scu.253148

Jelson Ltd v Derbyshire County Council: CA 1 Aug 1999

Section 2 of the 1989 Act had to bite at the point where a party could be compelled, in certain circumstances, which could or could not come about, to sell or dispose of an interest in land. The agreement here contained in effect an option for the council to nominate a housing association to which Jelson was required to convey land at a price and on conditions contained in the schedules. As the relevant parts of the agreement did, but for the section, commit Jelson to convey the property, they were of no effect since they lacked the signature of the purchaser.

Citations:

[1999] 3 EGLR 91, (2000) JPL 203

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2, Town and Country Planning Act 1990 106

Jurisdiction:

England and Wales

Citing:

Appeal from – Jelson Ltd v Derby City Council ChD 30-Jun-1999
Agreements under the planning acts remained subject to the general law requiring formalities for contracts for the sale of land. Where two landowners had an understanding as to the expectations for the division of responsibility for provision of . .

Cited by:

Not Followed – R G Kensington Management Co Ltd v Hutchinson IDH Ltd ChD 2003
Neuberger J decided that he could not follow the court in Jelson, saying: ‘The defendant’s case is that the reference to ‘the parties’ in s.2(3) is to the parties to the proposed conveyance or transfer. Two strands of authority are put forward as . .
Doubted – Nweze and Another v Nwoko CA 29-Mar-2004
The parties had settled their dispute in an oral compromise agreement under which it was agreed that land would be sold at the best price reasonably obtainable. One now argued this was unenforceable as an agreement for the disposal of land requiring . .
Doubted – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD 13-May-2010
The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .
Lists of cited by and citing cases may be incomplete.

Land, Planning

Updated: 18 July 2022; Ref: scu.235523

Jelson v Minister of Housing and Local Government: CA 1969

A proposed ring road had been cancelled. The landowners applied for certificates of appropriate alternative development. The Minister confirmed the negative certificates which had been issued by the local planning authority. It was contended that the question whether planning permission might reasonably have been expected to be granted should be considered not as at the date of the section 22(2)(a) notice but as at a date before there had been any proposal for the strip of land to be used for a ring road.
Held: The owners’ appeals failed. The local planning authority must determine the question of planning permission as at the date of the notice, and in the circumstances then existing, and not by looking at events in the past. It was a question of construction after examining the meaning of the words used in section 17(4).
Lord Denning MR: ‘After the discussion we have had, I think the decision depends on this one short point under section 17 (4): what is the date at which it must be decided whether planning permission ‘might reasonably have been expected to be granted’? The Minister says it must be decided as at the date of the deemed notice to treat, that is, on September 19, 1965. At that date there was this long, narrow strip of land bordered by great housing estates on either side. At that date planning permission would not be granted for any beneficial purpose. So there should be a ‘nil certificate.’ But Wimpeys and Jelsons say that that is not that date at all. They say that the date should be some time in the distant past before there was any proposal for a ring road. At that time they might reasonably have expected planning permission to be granted, not only for the housing estates, but also for this long, narrow strip for residential development.
That issue was to be determined simply as a matter of statutory construction:
The crucial word . . . is the word ‘proposed,’ which is defined in section 22 (2): ‘For the purposes of sections 17 and 18 of this Act, an interest in land shall be taken to be an interest proposed to be acquired by an authority possessing compulsory purchase powers in the following (but no other) circumstances, that is to say-‘
(a) (put shortly) where there is an actual notice to treat; (b) (put shortly) where there is a deemed notice to treat; (c) (put shortly) where there is an offer to negotiate to purchase.
That definition shows that the word ‘proposed’ refers to the proposal contained in an actual or deemed notice to treat or in an offer to purchase. That gives a good clue to the date of the proposal. It is the date of the actual or deemed notice to treat or of the offer to purchase, as the case may be.
In the light of that definition, section 17 (4) means that the planning authority must form an opinion as to what planning permission might reasonably have been expected to be granted at the date of the actual notice to treat, or the deemed notice to treat, or the offer to purchase, as the case may be. In the present case, therefore, which is a case of a deemed notice to treat, subsection 17 (4) must be read:’…that might have been expected to be granted [at the date of the service of the deemed notice to treat] in respect of the land in question, if it were not proposed [at that date] to be acquired…’ The planning authority must form an opinion as to what planning permission might reasonably be expected at that date, namely, September 28, 1965. It must look at the position as at that date, and see, in the circumstances then existing, whether planning permission might reasonably be expected to be granted. ‘
Phillimore LJ: ‘An important factor is that, apart from the question of construction, once you start looking back, the whole exercise becomes hopelessly uncertain. Did it all result from the designation of this strip as required for the ring road? How far was the state of the land due to the appellants’ own action in building right up to the strip? Could they have avoided loss by serving notice to purchase in 1959 when the provisions of the Act of 1961 were first [enacted]? Have they really suffered any loss, or did they pay for the strip on the basis that it was blighted land? At any rate, when they acquired it they knew this to be the case. It seems to me that to look back beyond the date of the deemed notice to treat would open up a considerable filed of guesswork which would often make it impossible to give firm advice to any member of the public as to his rights. Accordingly, both as a matter of construction and on wider grounds, I would dismiss these appeals.’

Judges:

Lord Denning MR, Sachs LJ, Phillimore LJ

Citations:

[1970] 1 QB 243, [1969] 3 All ER 147

Jurisdiction:

England and Wales

Cited by:

Cited – Newell and others v Secretary of State for the Environment and Another; Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment and Another HL 17-Feb-2000
Where a certificate of appropriate development was issued for land to be acquired compulsorily, the land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long . .
Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .
Lists of cited by and citing cases may be incomplete.

Land, Planning

Updated: 18 July 2022; Ref: scu.235920

Rugby Joint Water Board v Shaw-Fox: HL 1973

The water board obtained a compulsory purchase order to buy agricultural land adjoining a reservoir. The land was subject to protected tenancies under the 1948 Act.
Held: (Majority) Because the land subject to notices to treat was required for a use other than agriculture the tenancies were no longer protected. The Point Gourde principle did not prevent reference to the effect of the scheme of acquisition to ascertain the interest of a claimant at the date of acquisition. What was prevented by the Point Gourde principle was the use of the scheme in arriving at the value of the interest, once that interest had been ascertained. (Lord Simon of Glaisdale dissenting) Compulsory acquisition by public authorities for public purposes has always been in this country entirely a creature of statute.

Judges:

Lord Pearson, Lord Simon of Glaisdale

Citations:

[1973] AC 202

Statutes:

Agricultural Holdings Act 1948

Jurisdiction:

England and Wales

Citing:

Applied – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .

Cited by:

Cited – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 18 July 2022; Ref: scu.196515

Camrose v Basingstoke Corporation: CA 1966

Basingstoke was to be expanded to receive overspill population from London and the corporation contracted to purchase about 550 acres from a landowner on terms that the price would be assessed as though the land had been compulsorily acquired under the 1952 Act. About 383 of the 550 acres were, in the town development plan, designated for residential development. The question was whether the increase in the value of the intended residential land brought about by the town development scheme should be reflected in the compensation. The relevant Act for assessment of compensation purposes was 1961 Act. The first question was whether the case fell within one of the new statutory disregards.
Held: On a literal reading of the statutory provisions, any increase in value of the relevant land attributable to the development, or the prospect of development, of the rest of the land in the town development plan was to be excluded, but any increase in value of the relevant land due to its own inclusion in the town development plan was not excluded. This conclusion as ‘contrary to commonsense’. And ‘The explanation of section 6(1) is, I think, this: The legislature was aware of the general principle that, in assessing compensation for compulsory acquisition of a defined parcel of land, you do not take into account an increase in value of that parcel of land if the increase is entirely due to the scheme involving the acquisition. . . . It is left untouched by section 6(1). But there might be some doubt as to its scope. So the legislature passed section 6(1) and the First Schedule in order to make it clear that you were not to take into account any increase due to the development of the other land, namely, land other than the claimed parcel. I think that the decision in the Pointe Gourde case covers one aspect: and section 6(1) covers the other: with the result that the tribunal is to ignore any increase in value due to the Town Development Act, both on the relevant land and on the other land.’

Judges:

Lord Denning, Davies LJ, Russell LJ

Citations:

[1966] 1 WLR 1100

Statutes:

Land Compensation Act 1961 5 6

Jurisdiction:

England and Wales

Citing:

Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Cited – Davy v Leeds Corporation HL 1965
The Corporation declared an area in which the appellants owned some slum houses to be a slum clearance area and made a compulsory purchase order. Compensation was to be assessed under the 1919 Act and the 1959 Act. The appellants were entitled to . .

Cited by:

Doubted – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Cited – Myers v Milton Keynes Development Corporation CA 1974
Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the ‘scheme’ meant that the . .
Cited – 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 . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 18 July 2022; Ref: scu.196518

Myers v Milton Keynes Development Corporation: CA 1974

Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the ‘scheme’ meant that the valuer should disregard the scheme altogether or permitted him to have regard to it when identifying the ‘proposals of the acquiring authority’ in accordance with which the valuer had to assume planning permission would be granted. A valuer assessing land for compulsory purchase was at risk of having to ‘conjure up a land of make-believe’ and ‘let his imagination take flight to the clouds’ ‘What is to be assumed about the Walton Manor Estate itself? Here again one thing is clear. You are not to assume that it would have been developed in accordance with the proposals of the development corporation. You are to disregard any increase by reason of the estate itself being developed in accordance with their proposals. . . But you are to assume that after 10 years planning permission would be available for development as a residential area.’
and ‘It comes to this. In valuing the estate, you are to disregard the effect of the scheme, but you are to assume the availability of planning permission. This is best explained by taking an imaginary instance: A scheme is proposed for building a motorway across Dartmoor with a service station every five miles. Suppose that land is taken on which a service station is to be built as soon as possible. In assessing compensation, you are to disregard any increase due to the proposed motorway, or service stations. But if the landowner had already been granted actual permission for that piece of land for commercial purposes (for example, as a cafe), you are to have regard to it: see section 14 (2). Even if he had no such permission already, you are to assume that he would have been granted planning permission for a service station; see section 15 (1). And you are to value that land with that permission in the setting in which it would have been if there had been no scheme. If it would have been a good site for a service station, there would be a great increase in value. If it would have been in an inaccessible spot on the wild moor, there would be little, if any, increase in value because there would be no demand for it. A further complication arises when the proposals are not put into effect for 10 years. Planning permissions are not in practice granted so far ahead. They are only granted for immediate development. In the illustration you are therefore to assume that, after 10 years, planning permission would be granted for development of a service station – in a setting where there had been no scheme.’

Judges:

Lord Denning MR

Citations:

[1974] 1 WLR 696

Jurisdiction:

England and Wales

Citing:

Applied – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Cited – Camrose v Basingstoke Corporation CA 1966
Basingstoke was to be expanded to receive overspill population from London and the corporation contracted to purchase about 550 acres from a landowner on terms that the price would be assessed as though the land had been compulsorily acquired under . .
Cited – Wilson v Liverpool Corporation CA 1971
The claimants owned 74 acres of an area of 391 acres in Liverpool which the Corporation wanted to acquire for residential development. The authority acquired the land by agreement and made a compulsory purchase order in respect of the remainder.

Cited by:

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 – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
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 . .
Cited – Roberts and Another v South Gloucestershire Council CA 7-Nov-2002
The landowner appealed against the compensation awarded for the compulsory acquisition of his land for use as a road. The owners had been compensated only for its agricultural value, but said that it should have allowed for its value for minerals . .
Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 18 July 2022; Ref: scu.186346

Western Electric Ltd v Welsh Development Agency: 1983

An offer to grant a licence to occupy land may be accepted by taking up occupation.

Citations:

[1983] QB 796

Jurisdiction:

England and Wales

Cited by:

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

Contract, Land

Updated: 18 July 2022; Ref: scu.183737

Jelson Ltd v Derby City Council: ChD 30 Jun 1999

Agreements under the planning acts remained subject to the general law requiring formalities for contracts for the sale of land. Where two landowners had an understanding as to the expectations for the division of responsibility for provision of affordable housing between their respective plots, one could not be obliged to continue where the contract was incomplete. A planning agreement allowed one party to require the other to sell land to a nominated beneficiary at a discounted price. This amounted to a contract to sell the land, and so, in order to be enforceable, it had to be signed by all the parties. It was permissible to blue pencil certain parts of the agreement relating to this aspect and leave the rest enforceable.

Judges:

Mr David Mackie QC

Citations:

Times 22-Aug-1999, Gazette 30-Jun-1999, [1999] 39 EG 149

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 1

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Distinguished – Nweze and Another v Nwoko CA 29-Mar-2004
The parties had settled their dispute in an oral compromise agreement under which it was agreed that land would be sold at the best price reasonably obtainable. One now argued this was unenforceable as an agreement for the disposal of land requiring . .
Appeal from – Jelson Ltd v Derbyshire County Council CA 1-Aug-1999
Section 2 of the 1989 Act had to bite at the point where a party could be compelled, in certain circumstances, which could or could not come about, to sell or dispose of an interest in land. The agreement here contained in effect an option for the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 July 2022; Ref: scu.82509

Fletcher Estates (Harlescott) Ltd and Executors of J V Longmore v Secretary of State for Environment and Secretary of State for Transport: Admn 10 Jun 1997

The date of the acquiring proposal is the date to consider as to planning aspects on deciding whether to quash a certificate of appropriate development.

Judges:

Dyson J

Citations:

Times 11-Jul-1997, [1997] EWHC Admin 538

Statutes:

Land Compensation Act 1961 22(2)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Secretary of State for Environment v Fletcher Estates (Harlescott) Limited and Secretary of State for Environment v Newell; Longmore and Longmore (the Executors of J V Longmore) CA 11-Jun-1998
Land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long expectation of that particular proposal and its consequences and not by reference to another proposal . .
At first instance – Newell and others v Secretary of State for the Environment and Another; Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment and Another HL 17-Feb-2000
Where a certificate of appropriate development was issued for land to be acquired compulsorily, the land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long . .
Lists of cited by and citing cases may be incomplete.

Planning, Land

Updated: 18 July 2022; Ref: scu.137483

Secretary of State for Environment v Fletcher Estates (Harlescott) Limited and Secretary of State for Environment v Newell; Longmore and Longmore (the Executors of J V Longmore): CA 11 Jun 1998

Land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long expectation of that particular proposal and its consequences and not by reference to another proposal which it replaced. Buxton LJ: ‘[The landowners] contended that . . the policies and facts applicable at the relevant date should have been viewed as if the bypass scheme had never been conceived at all. [The Secretary of State] contended that the policies and facts should be taken on the relevant date as if the scheme had been cancelled on that date, and not as if the scheme had never been conceived at all.’

Judges:

Buxton LJ

Citations:

Gazette 15-Jul-1998, Times 01-Jul-1998, Gazette 17-Jun-1998, [1998] EWCA Civ 976, [1999] QB 1144, [1998] 4 All ER 838

Links:

Bailii

Statutes:

Land Compensation Act 1961 22(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – Fletcher Estates (Harlescott) Ltd and Executors of J V Longmore v Secretary of State for Environment and Secretary of State for Transport Admn 10-Jun-1997
The date of the acquiring proposal is the date to consider as to planning aspects on deciding whether to quash a certificate of appropriate development. . .

Cited by:

Appeal from – Newell and others v Secretary of State for the Environment and Another; Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment and Another HL 17-Feb-2000
Where a certificate of appropriate development was issued for land to be acquired compulsorily, the land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long . .
Lists of cited by and citing cases may be incomplete.

Planning, Land

Updated: 18 July 2022; Ref: scu.144455

His Majesty’s Advocate v Jean Hay, Widow of John Cuthbert: HL 26 Apr 1758

Adjudication and Infeftment – Prescription – Interruption.-
A bond was granted by a party to his creditor, upon which adjudication, charter, and infeftment followed, this adjudication comprising several other separate debts; the bond debt lay over for 66 years, when the present claim was made, and the negative prescription pleaded against the adjudication: Held that a claim made before the Government Commissioners of Enquiry on forfeited estates and registration thereof, together with a submission, followed by decree-arbitral, entered into by the debtor with one of the creditors in the separate debts comprised in this adjudication, and assignation of that debt by him to the debtor within the 40 years, were sufficient to interrupt the negative prescription in regard to the debt, it being one of those comprised in the adjudication thus acknowledged by the debtor.

Citations:

[1758] UKHL 2 – Paton – 272

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 18 July 2022; Ref: scu.558248

Fitzroy Robinson Ltd v Mentmore Towers Ltd: TCC 26 Nov 2009

The court considered the approach to be taken when considering an ‘ordinary’ adjournment of a forthcoming trial date; where the adjournment was said to be necessitated by the parties’ failure to comply with the earlier directions of the court, which non-compliance, so it was said, made a fair trial difficult if not impossible.

Judges:

Coulson J

Citations:

[2009] EWHC 3070 (TCC), 128 Con LR 91, [2010] CP Rep 15

Links:

Bailii

Jurisdiction:

England and Wales

Land, Litigation Practice

Updated: 18 July 2022; Ref: scu.393354

Greenweb Ltd v London Borough of Wandsworth: CA 31 Jul 2008

The authority appealed against an order requiring it to pay a sum in compensation on the purchase of land which was more than one hundred times its market value.
Held: Where the authority compulsorily acquired open land after declining a planning application for that land by the owner, it was to be valued on the basis that would have applied had permission been granted.

Judges:

Buxton, Thomas, Stanley Burnton LJJ

Citations:

[2009] JPL 116, [2008] RVR 294, [2009] 1 WLR 612, [2008] EWCA Civ 910

Links:

Bailii

Statutes:

Land Compensation Act 1961

Jurisdiction:

England and Wales

Citing:

Appeal from – Greenweb Ltd v London Borough of Wandsworth LT 17-Sep-2007
LT COMPENSATION – purchase notice – land in use as public open space – terrace of houses on land demolished during second world war – whether Third Schedule rights to be assumed – held they were – compensation . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 18 July 2022; Ref: scu.271288

The Royal Oak Property Company Ltd v Iktilat and Another: ChD 23 Jul 2008

The defendant was registered proprietor of two properties, but resisted orders for sale of them under charging orders, saying that he was not the beneficial owner of them.

Judges:

Floyd J

Citations:

[2008] EWHC 1703 (Ch)

Links:

Bailii

Statutes:

Charging Orders Act 1979 2

Jurisdiction:

England and Wales

Land, Litigation Practice

Updated: 18 July 2022; Ref: scu.271106

Bocardo Sa v Star Energy UK Onshore Ltd and Another: ChD 24 Jul 2008

The defendant had obtained a licence under the Act to extract oil from beneath its land. To do so, it had to drill at a deep level under the claimant’s land. It did so without the claimant’s permission. The claimant sought damages in trespass.
Held: The intrusion was a trespass. Damages were awarded based on the licence fees which might have been charged.

Judges:

Peter Smith J

Citations:

[2008] EWHC 1756 (Ch), [2008] 2 P and CR 23, [2009] 1 All ER 517, [2008] NPC 99, [2008] 30 EG 83

Links:

Bailii

Statutes:

Petroleum (Production) Act 1934

Jurisdiction:

England and Wales

Cited by:

Appeal from – Star Energy UK Onshore Ltd and Another v Bocardo Sa CA 15-Jun-2009
The appellant had taken out a licence to drill for oil on its land. To maximise its return it drilled at a deep level out under the claimant’s land. It now appealed against a finding that this was a trespass, and that it should pay damages on a . .
At First Instance – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Licensing, Land

Updated: 18 July 2022; Ref: scu.271040

Young and Another v Brooks and Another: CA 22 May 2008

Appeal from order as to extent of right of way. Lord Hoffmann’s five principles of interpretation in the Investors Compensation Scheme case apply as much to the interpretation of an express grant of an easement as to that of a contract.

Citations:

[2008] EWCA Civ 816

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Davill v Pull and Another CA 10-Dec-2009
The court was asked to interpret grants of rights of way over land. The claimant intended to increase the use of the right. The servient owners objected. The claimant appealed against refusal of relief.
Held: The appeal succeeded. There was . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 July 2022; Ref: scu.270834

Aribisala v St James Homes (Grosvenor Dock) Ltd: ChD 12 Jun 2007

The parties had agreed in a contract for the sale and purchase of land to exclude the application of section 49(2). The buyer had failed to comply with a notice to complete.
Held: The parties cannot contract out of section 49(2). The particular issue has not previously been considered. The section had been enacted after case where the seller had been refused specific performance and the court had found itself unable to order the return of the deposits. ‘Parliament by section 49(2) has conferred jurisdiction on the court, in any action for the return of the deposit, to order the repayment of that deposit. That is a jurisdiction, it seems to me, which it is not open to a purchaser to waive. Indeed, bearing in mind the context of the section and how it has been interpreted, as akin to a power of the court to grant equitable relief against forfeiture, by necessity the jurisdiction, when exercised, will always interfere with the contractual rights agreed between the parties. It seems to me it would be inconsistent, if the legislature has conferred upon the court the entitlement to interfere with the contractual rights of the parties, for the legislature at the same time to allow for the parties to contract out of that interference. Of course, Parliament could do that expressly, but it has not done so.’

Judges:

Steinfeld QC

Citations:

[2007] EWHC 1694 (Ch), Times 04-Apr-2008

Links:

Bailii

Statutes:

Law of Property Act 1925 49(2)

Jurisdiction:

England and Wales

Citing:

Cited – Country and Metropolitan Homes Surrey Ltd v Topclaim Ltd 1996
The issue was the proper construction and effect of condition 6.8 of the Standard Conditions of Sale, 2nd edition, in relation to the giving of a notice to complete a contract for the sale of land.
Held: The condition provided exclusively for . .
Cited – Hyman v Hyman 1929
The husband had left the wife for another woman. Adultery by the husband was not a ground for divorce absent aggravating circumstances, such as incest. The parties had entered into a deed of separation under which the husband had paid two lump sums . .
Cited – Universal Corporation v Five Ways Properties Limited CA 1978
The purchaser had failed to complete, notwithstanding the service of a notice to complete. The purchaser a Nigerian company suffered a delay in obtaining funds due to a change in the exchange control regulations. There was no attempt to exclude . .
Cited – Re Wynn (deceased) 1952
A provision in a will which purported to make the decision of the trustees final on any matter in dispute between them and the beneficiaries was a provision calculated to oust the jurisdiction of the court and so was void as being contrary to public . .
Cited – Schindler v Pigault 1975
The purchaser of land had not completed and sought return of the deposit paid claiming default by the vendor, or alternatively under section 49(2).
Held: He was entitled to the repayment of the deposit on the first ground. The court went . .
See Also – Aribisala v St James’ Homes (Grosvenor Dock) Ltd ChD 14-Mar-2008
The claimant contracted to buy two apartments from the defendant. The contract purported to exclude section 49. . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 17 July 2022; Ref: scu.266949

Deschamps v Miller: 1908

The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband left the wife, went to India, and bigamously married a lady who became his de facto wife. He acquired business premises in Madras and other lands there. After living a great many years in India (and having been separated from his de jure wife for 30 years) he put them in trust for the benefit of the de facto wife. These lands, it was said, were after-acquired property within the meaning of the marriage contract, and had been transferred to the benefit of the de facto wife other than for valuable and sufficient consideration, in breach of that contract. After the death of all three members of the triangle, the de jure wife’s son, claimed as her successor according to the law of France. He took out English letters of administration of her estate. He claimed to be entitled to a share of the Indian property, and sued the trustees of the Indian settlement. However, according to Indian law the estate of the de facto wife was vested in the Administrator-General of Madras. The parties were personally subject to the jurisdiction of the English court. But the Administrator-General was not a party – even though the point had been taken in the defendant’s pleadings.
Held: Even on the facts as alleged, the English court ought not to entertain jurisdiction, because the lands were situate in India. An English court has no power to make orders affecting ownership of land in foreign countries, except where the defendant has assumed a personal obligation to transfer the property to another: ‘But it is alleged that the conveyances of the husband under which the defendants claim title were not made for good consideration according to French law [i.e. were made at an undervalue], and that consequently, according to the same law, the wife could follow the property and claim it in the defendants’ hands. It is obvious, however, that whether or not the wife could assert any interest against land outside France would be governed entirely by the law of the place where the land is situate. If, for example, the land were in England, it would not be enough to prove that according to French law the wife had an interest. In order to assert such an interest against the defendants it would have to be made out either that the defendants were not purchasers for value, or that, though they were purchasers for value, they had notice of the wife’s interest under the French contract. Of course a purchase for value under the English law may have a totally different meaning from a purchase for good consideration according to French law; and I am told in the present case that in France good consideration for such a purpose as this means full consideration in money or money’s worth. In order, therefore, to decide whether the plaintiff can succeed in following the property into the hands of the defendants I should have to consider the law relating to immovable property in India. Not only may that law differ from the law of England in the extent to which equitable interests are recognized, but also in the importance which attaches to the presence or absence of notice. It may also contain provisions such as the statutes for the limitation of actions or suits, or for the registration of title, which would materially affect the matter I have to decide.’
‘In my opinion the general rule is that the Court will not adjudicate on questions relating to the title to or the right to possession of immovable property out of the jurisdiction. There are, no doubt, exceptions to that rule, but, without attempting to give an exhaustive statement of those exceptions, I think it will be found that they all depend on the existence between the parties to the suit of some personal obligation arising out of contract or implied contract, fiduciary relationship or fraud, or other conduct which, in the view of a Court of Equity in this country, would be unconscionable, and so not depend for their existence on the law of the locus of the immovable property. Thus, in cases of trusts, specific performance of contracts, foreclosure, or redemption of mortgages, or in the case of land obtained by the defendant by fraud, or other such unconscionable conduct as I have referred to, the Court may very well assume jurisdiction. But where there is no contract, no fiduciary relationship, and no fraud or other unconscionable conduct giving rise to a personal obligation between the parties, and the whole question is whether or not according to the law of the locus the claim of title set up by one party, whether a legal or equitable claim in sense of those words as used in English law, would be preferred to the claim of another party, I do not think the Court ought to entertain jurisdiction to decide the matter. In the present case there is, in my opinion, no such personal obligation as above mentioned, and I do not think I could assume jurisdiction in this case without acting contrary to the decision in Norris v. Chambres.’

Judges:

Parker J

Citations:

[1908] 1 Ch 856

Jurisdiction:

England and Wales

Citing:

Cited – Norris v Chambres 1862
A company director had advanced part of a loan for the purchase of a mine in Prussia. He died, and because of lack of funds, his estate risked losing everything. His estate sought its recovery.
Held: ‘With respect to this advance, I think . .

Cited by:

Cited – R Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
Dictum approved – Lightning v Lightning Electrical Contractors Ltd CA 1998
Mr K asserted beneficial ownership under a resulting trust over land in Scotland bought by an English company to which he had advanced the purchase price. Scots law, the lex situs of the land, did not recognise any equitable interest. The company . .
Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Cited – Luxe Holding Ltd v Midland Resources Holding Ltd ChD 23-Jul-2010
Midland agreed to sell to Luxe shares in 20 companies, 17 of which were incorporated in Russia or the Ukraine, with the lex situs of the shares in them being also there. Midland defaulted, sold the shares in the Russian and Ukrainian companies . .
Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 July 2022; Ref: scu.199469

Dunster v Abbott: CA 1953

The court discussed the distinction between the liability of an occupier for the dangerous condition of his premises and the liability of an occupier in relation to dangerous activities carried out on his premises. Denning LJ said: ‘In this case . . it does not matter whether the plaintiff was an invitee or a licensee. That distinction is only material in regard to the static condition of the premises. It is concerned with dangers which have been present for some time in the physical structure of the premises. It has no relevance in regard to current operations, that is, to things being done on the premises, to dangers which are brought about by the contemporaneous activities of the occupier or his servants or of anyone else.’

Judges:

Denning LJ

Citations:

[1953] 2 All ER 1572 CA, [1954] 1 WLR 58

Jurisdiction:

England and Wales

Cited by:

Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Lists of cited by and citing cases may be incomplete.

Land, Negligence

Updated: 17 July 2022; Ref: scu.181219

In Re Cawston’s Conveyance and the School Sites Act 1841: CA 1940

The 1841 Act was intended to encourage land owners to make land available for educational purposes: ‘One can see that the provision with regard to reverter would have been and no doubt was considered by the Legislature to be a very useful encouragement to charitably minded persons, particularly if they were the owners of an estate or life tenants of a settled estate, to make grants for purposes such as these, because such persons might very well be satisfied to have the village school built upon the family estate, but would strongly object to the site on which such a school had been built being diverted later on to other purposes; therefore, as I have said, that proviso as to reverter must have been a very valuable encouragement, because landowners by reason of it were thus enabled to ensure that the site should be used in perpetuity for school purposes, or, if it ceased to be used for school purposes, that they would get it back. The common sense of that is obvious.’

Judges:

Sir Wilfrid Greene MR

Citations:

[1940] Ch 27

Statutes:

School Sites Act 1841

Jurisdiction:

England and Wales

Cited by:

Cited – Rector of Wrington and The Bath and Wells Diocesan Board of Finance v Jenkinson and Others ChD 26-Feb-2002
Land having been conveyed under the Act, and it no longer being needed as a school, it had to be decided to whom the land reverted.
Held: The tracing of beneficiaries had to be in the basis under section 2, that the land had never been so . .
Cited – Fraser and Another v Canterbury Diocesan Board of Finance and others HL 27-Oct-2005
Land had been acquired by a deed under the 1841 Act, but had in 1995 ceased to be used as a school ‘for the education of children and adults of the labouring manufacturing and other poorer classes . . And for no other purpose ‘. Under the Act, the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 July 2022; Ref: scu.179832