Category: Land

J A Pye (Oxford) Ltd and Another v Graham and Another: CA 6 Feb 2001

Leave to appeal to the House of Lords refused.

Citations:

[2001] EWCA Civ 117

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – J A Pye (Oxford) Ltd and Another v Caroline Graham and Another CA 6-Feb-2001
Where a tenant under a grazing license had stayed over after the end of the tenancy, and had been refused a renewed licence, and had continued to graze the land for over twelve years, the mere overstaying was not enough to evidence an animus . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 06 July 2022; Ref: scu.200813

Francis and Another v Vista Del Mar Development Ltd: PC 8 Apr 2019

(From the Court of Appeal of the Cayman Islands) ‘When one person gives another (the option holder) a conditional option to buy her land, the option holder will be entitled to exercise the option when the conditions for exercising it are fulfilled by following any procedural requirements set by the terms of the option. A new contract then arises between the parties and their relationship changes from one of option giver and option holder to one of vendor and purchaser. This appeal concerns the consequences for their relationship, in the context of proceedings for specific performance, if the option holder delays in exercising her option rights or in enforcing her rights under that new contract to which exercise of the option has given rise. ‘

Judges:

Lord Reed, Lord Carnwath, Lady Black, Lady Arden, Lord Kitchin

Citations:

[2019] UKPC 14

Links:

Bailii

Jurisdiction:

Commonwealth

Contract, Land, Equity

Updated: 06 July 2022; Ref: scu.638472

Duke of Hamilton v Dunlop and Another: HL 13 May 1885

Property – Personal Privilege – Conveyance – Reservation in Conveyance of ‘Liberty of Working’ Minerals
When a proprietor dispones lands, reserving to himself the ‘liberty of working the coal and other minerals’ therein, he is to be understood, not as reserving a mere personal privilege of working minerals, but as reserving the property of the coal and other minerals.
By an excambion a proprietor conveyed lands which contained minerals to a neighbouring proprietor in exchange for others, reserving to himself and his heirs and successors in the lands obtained in exchange, ‘if conveyed with that privilege,’ the ‘liberty of working’ coal and other minerals in the lands he conveyed, under the declaration that these must not be worked from the surface but from other lands which might belong to him or them. Thereafter he sold the lands obtained in exchange without mention of the ‘privilege.’ In a question between his heir and the heir of the proprietor with whom he had made the excambion, held ( aff. judgment of Second Division) that the reserved right of working minerals was a reservation of the property therein, and not of a mere privilege of the nature of a servitude which might be lost non utendo, or which had fallen by the conveyance of the lands without mention of the ‘privilege.’

Judges:

Lord Chancellor, Lords Blackburn, Watson, and Fitzgerald

Citations:

[1885] UKHL 737, 22 SLR 737

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 06 July 2022; Ref: scu.637753

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 envisaged. No right of way of necessity was implied.

Judges:

Frances Kirkham J

Citations:

[2006] EWHC 1075 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Titchmarsh v Royston Water Company Limited 1899
The land owner sought a grant of right of way of necessity. His land was blocked on three sides by land of the vendors and on the fourth side by a route which ran in a cutting, which would make connection with the granted land difficult.
Held: . .
Cited – Pomfret v Ricroft 1669
A lease was granted with the use of a pump on land not demised. The lessee complained of the lack of repair of the pump.
Held: The lessee had a right to repair the pump, but the landlord did not have a duty to maintain it. Where land is . .
Cited – Clark v Cogge 1607
A grantee of land shall have the benefit of an implied right of way of the grantor’s land where necessary: ‘the case was, the one sells land and afterwards the vendee, by reason thereof, claims a way over the plaintiff’s land, there being no other . .
Cited – Corporation of London v Riggs CA 1880
The court considered whether a right of way of necessity had been granted: ‘the real question I have to decide is this – whether, on a grant of land wholly surrounding a close, the implied grant, or re grant, of a right of way by the grantee to the . .
Cited – 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 . .
Cited – In re Webb’s Lease, Sandom v Webb CA 1951
The court considered the acquisition of right of way of necessity. Evershed MR said: ‘If by this language Salter J intended to lay it down that in a case such as this (where it is or may be reasonable for the court to assume that, if the parties had . .
Cited – Pwllbach Colliery Co v Woodman HL 1915
Whether an easement may be created by implication depends on the circumstances under which it is said to have been made. The law implies a grant of such easements as may be necessary to give effect to the common intention of the parties to a grant . .
Cited – Barry v Hasseldine 1952
The grantee’s land was surrounded partly by land of the vendor, and partly by that of other parties, including a disused airfield owned by a third party. For some time following the grant they had been able to obtain access over the airfield by . .
Cited – Nickerson v Barraclough CA 13-Dec-1980
The defendant appealed a finding that the plaintiff had a right of way of necessity over his land. When looking to see whether a grant of a right of way of necessity was implied, the court should ascertain the intention of the parties and public . .
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 – Sommer and Another v Sweet and Another CA 10-Mar-2005
The claimants had sought entry into theirs and their neighbour’s registered land titles of entries to acknowledge their rights of way. The neighbours appealed the finding of a right of way of necessity and by proprietary estoppel, and an order for . .
Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 06 July 2022; Ref: scu.241685

Day v Day: CA 14 Mar 2006

Judges:

Lord Justice Ward Sir Martin Nourse

Citations:

[2006] EWCA Civ 415

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Johnsey Estates and Limited v Secretary of State for Environment CA 11-Apr-2001
Chadwick LJ: ‘The principles applicable in the present case may, I think, be summarised as follows: (i) costs cannot be recovered except under an order of the court; (ii) the question whether to make any order as to costs – and, if so, what order – . .
Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 06 July 2022; Ref: scu.241387

The David Roberts Art Foundation Ltd v Riedweg: ChD 6 Jun 2019

The defendant had failed to complete on land purchase from the Vendor. The contract came to be rescinded, but the defendant objected to forfeiture of the deposit paid, saying that the Charity had failed to comply with its statutory obligations as regards land sales.
Held: The claimant’s request for summary judgment was refused.

Judges:

March CM

Citations:

[2019] EWHC 1358 (Ch)

Links:

Bailii

Statutes:

Charities Act 2011 117 119

Jurisdiction:

England and Wales

Land, Contract

Updated: 06 July 2022; Ref: scu.638270

Brodie and Another v Mann: HL 4 May 1885

Road – Public Right-of-Way – Prescription – Presumption – Onus Probandi.
For 37 years from 1846 the public were excluded from use of a road passing through the estate of G. In an action raised at the end of that time to have it declared that the road was a public right-of-way, it was proved that from 1820 to 1846 the road was used by the public continuously and as matter of right. With regard to the period before 1820 the evidence was conflicting. Held ( rev. judgment of First Division) that the evidence of public use prior to that year was not sufficiently strong to overcome the presumption against the public arising from the fact of exclusion during the long period of 37 years.

Judges:

Lords Blackburn, Watson, and Fitzgerald

Citations:

[1885] UKHL 730, 22 SLR 730

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 06 July 2022; Ref: scu.637752

Zissis v Lukomski and Another: CA 5 Apr 2006

The court considered an appeal against an award under the 1996 Act. The appeal had been brought under Part 8 of the Civil Procedure Rules.
Held: The appeal was by virtue of the 1996 Act, and as such was a statutory appeal, and should have been brought under Part 52, not Part 8.

Judges:

Sir Peter Gibson

Citations:

[2006] EWCA Civ 341, Times 24-Apr-2006

Links:

Bailii

Statutes:

Party Wall etc Act 1996, Civil Procedure Rules Part 8 Part 52

Jurisdiction:

England and Wales

Citing:

Cited – E I Du Pont De Nemours and Company v S T Dupont; Du Pont Trade Mark CA 10-Oct-2003
The court considered the circumstances under which a Hearing Officer’s decision could be reversed on appeal: ‘Those experienced in cases such as these, such as the Hearing Officer, would have known that the sort of evidence normally adduced on . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Land

Updated: 05 July 2022; Ref: scu.240110

James Casey and others v Crawley Borough Council: Admn 1 Mar 2006

The range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide.

Judges:

Mr Justice Burton

Citations:

[2006] EWHC 301 (Admin)

Links:

Bailii

Cited by:

Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Lists of cited by and citing cases may be incomplete.

Land, Planning

Updated: 05 July 2022; Ref: scu.238771

Redwell Investments Ltd v 1-3 Cuba Street Ltd: CA 14 Dec 2005

Lord Justice Chadwick considered what was meant by actual completion: ‘I accept, of course, that there is no absolute rule that completion takes place when title is transferred . . We were referred to no case in which it has been held that completion did not take place until some time after title had been transferred. The question has to be answered on the facts of each case; construing the language which the parties have used in their agreement in the light of the facts known to them (or which they must be taken to have known) at the time.’

Judges:

Lord Justice Chadwick

Citations:

[2005] EWCA Civ 1799

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kalatara Holdings Ltd v Benedict Thomas Andersen and Another Chd 25-Jan-2008
The claimant sought specific performance of a contract to buy land from the defendant. The defendant sought summary dismissal of the claim and forfeiture of the deposit. It had been intended that the property would be ‘rolled over’ on a sub-sale. . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 05 July 2022; Ref: scu.238645

Williamson v Mid-Suffolk District Council: LT 18 Jan 2006

LT COMPENSATION – planning permission – discontinuance order – preliminary issue – airfield – scope and effect of planning permissions granted under s73A of Town and Country Planning Act 1990 – whether conditions would continue to bind adjoining land the subject of an earlier, less restrictive planning permission – issue estoppel – abuse of powers – held conditions would not continue to bind adjoining land – held compensating authority estopped from so contending.

Citations:

[2006] EWLands LCA – 73 – 2002

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Newbury District Council v Secretary of State for the Environment HL 1980
Issues arose as to a new planning permission for two existing hangars.
Held: The appeal succeeded. The question of the validity of conditions attached to planning permissions will sometimes be a difficult one. To be valid, a condition must be . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 05 July 2022; Ref: scu.238408

Chapter Group Plc v London Regional Transport and Another: LT 25 Jan 2006

COMPENSATION – Costs – Sealed offer accepted – S.4(1) of Land Compensation Act 1961 – s.3(5) of Lands Tribunal Act 1949 – Reasonable time for acceptance of sealed offer – Guidance as to form of sealed offer

Citations:

[2006] EWLands CON – 87 – 2004

Links:

Bailii

Statutes:

Land Compensation Act 1961 4(1)

Jurisdiction:

England and Wales

Land

Updated: 05 July 2022; Ref: scu.238404

Dalkia Utilities Services Plc v Celtech International Ltd: ComC 27 Jan 2006

The Court was asked to decide (i) which, if either, of the two parties to a 15 year agreement lawfully terminated it; (ii) whether, if one of them did so, it was by giving notice under a contractual termination clause or by way of acceptance of the repudiation of the contract by the other party, or both; and (iii) whether a notice of termination pursuant to a particular clause of the contract may, also, serve as an acceptance of a repudiation by the other party or may, if the notice was invalid and there was no such repudiation, itself, be a repudiation.
Held: Christopher Clarke J observed: ‘a) Equity, before the Judicature Acts, insisted that prima facie time for payment was not essential. But Equity’s patience was exhaustible. It would allow the contract to be treated as repudiated if the party in default had been given the opportunity to mend his ways by the giving of a notice to comply within a reasonable time. Whilst this is described as making time of the essence in reality the notice is the means of bringing to an end equity’s interference with the contract: Behzadi v Shaftesbury Hotels Ltd [1992] Ch 1
b) Such a notice, which may be given in respect of any species of term, may not be served until the time for performance has expired; but it may be served as soon as that time arrives;
c) Such a notice must state clearly what the other party is required to do and the consequence if he fails i.e. that the contract may be terminated; Afovos Shipping Co SA v Pagnan[1982] 1 Lloyd’s Rep562, 565 col 2; [1982] 1 WLR 848, 854C;
d) If the defaulting party fails to perform after service of such a notice, the failure is not automatically a repudiation of the contract, giving rise to a right to terminate. The breach must go to the root of the contract;
e) The notice operates as evidence of the date by which the promisee considers it reasonable to require the contract to be performed, failure to perform by which is evidence of an intention not to perform: see Lord Simon of Glaisdale in United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904, 946E-947A; Astea (UK) Ltd v Time Group Ltd [2003] EWHC 725 (TCC) para 147.’

Judges:

Christopher Clarke J

Citations:

[2006] EWHC 63 (Comm), [2006] 1 Lloyd’s Rep 599, [2006] 1 LLR 599, [2006] 2 P and CR 9

Links:

Bailii

Citing:

Cited – Hobson v Gorringe CA 1897
The intention of the parties in affixing an object to land is only relevant to the extent that it can be derived from the degree and object of the annexation: ‘the intention of the parties as to the ownership of the chattel fixed to the land is only . .
See Also – Celtech International Limited v Dalkia Utilities Services Plc ChD 12-Feb-2004
. .
Cited – Behzadi v Shaftsbury Hotels CA 1992
The court must distinguish between an open contract such as Green v Sevin where no date for completion is fixed by the contract and the more normal case where a completion date is fixed but time is not of the essence of the date specified. In the . .

Cited by:

Judgement – Dalkia Utilities Services Plc v Celtech International Ltd (No. 2) ComC 2-Feb-2006
. .
Cited – Stocznia Gdynia Sa v Gearbulk Holdings Ltd CA 13-Feb-2009
Orders were placed for the construction of ships. They were not delivered. The buyer, the defendant, cancelled the orders. The defendants sought the loss of profit. The claimants said they were entitled only to the repayment of instalments. The . .
Cited – Imageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
Cited – Warren and Another v Burns QBD 13-Nov-2014
The boxing manager and boxer each said that the other owed him money.
Held: The contract entitled the claimant to take some share of the boxers earnings but as part of the overall management fee, but as a part of the overall sum and at a share . .
Lists of cited by and citing cases may be incomplete.

Contract, Land, Equity

Updated: 05 July 2022; Ref: scu.238351

Horsford v Bird and others: PC 17 Jan 2006

(Antigua and Barbuda) The Board was asked as to the damages to be awarded after the defendant had built a wall which encroached on the claimant’s land and appropriated some 455 square feet. Aggravated damages had been awarded. The court was asked whether the damages should reflect the increase in value of the defendant’s property rather than the strict value of the land itself.
Held: This was not an occasion when the building of the wall had been accompanied by high handed or other reprehensible behaviour, and aggravated damages were not justified.
Tthe proper starting point was the value of the land encroached upon, which was assessed at $30 per square foot, totalling $13,650. However, the judge was right to take into account the extent to which the piece of land encroached upon had enhanced the amenities of the respondent’s own house. By building his wall on the appellant’s land and thereby (permanently) incorporating a piece of the appellant’s land into his garden, the respondent had given the expropriated land a value to himself considerably in excess of its value simply as 455 square feet of an undeveloped plot. The proper question to ask was how much the appellant could reasonably have sought from the respondent as the price of the land incorporated wrongly into his garden. The value to the respondent of the land as part of his garden would have been at least double its value as an undeveloped plot.

Judges:

Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Mance

Citations:

[2006] UKPC 3, [2006] 1 EGLR 75, (2006) 22 Const LJ 187, [2006] 15 EG 136

Links:

Bailii

Cited by:

Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Ramzan v Brookwide Ltd ChD 8-Oct-2010
The claimant owned a flying freehold room butting into the defendant’s property. Whilst the claimant’s property was unoccupied, the defendant broke through into the room, blocked off the door to the claimant’s property, and included the room in the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land, Damages

Updated: 05 July 2022; Ref: scu.238310

Meretz Investments Nv and Another v ACP Ltd and others: ChD 30 Jan 2006

The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The power was validly exercised. Provided the recovery of the sums for which the security was given were at least part of the motive, additional motives did not vitiate the exercise.
Lewison J held: ‘A dissection of a mortgagee’s motives is likely to be difficult in practice. Moreover, unlike statutory powers conferred for the public benefit, or trustees’ powers conferred for the benefit of beneficiaries (which were two analogies on which [counsel] relied) a mortgagee’s powers are conferred upon him for his own benefit. In such circumstances ‘purity of purpose’ may be difficult to achieve. The cases do support the proposition that a power of sale is improperly exercised if it is no part of the mortgagee’s purpose to recover the debt secured by the mortgage. Where, however, a mortgagee has mixed motives (or purposes) one of which is a genuine purpose of recovering, in whole or in part, the amount secured by the mortgage, then in my judgment his exercise of the power of sale will not be invalidated on that ground. In addition I consider that it is legitimate for a mortgagee to exercise his powers for the purpose of protecting his security.’

Judges:

Lewison J

Citations:

[2006] EWHC 74 (Ch), Times 27-Apr-2006, [2007] Ch 197, [2006] 2 P and CR 23, [2006] 3 All ER 1029, [2006] 6 EGCS 170, [2007] 2 WLR 403

Links:

Bailii

Statutes:

Law of Property Act 1925 104

Jurisdiction:

England and Wales

Citing:

See Also – Meretz Investments Nv v ACP Ltd QBD 27-May-2002
Meretz sued ACP for monies alleged to be due under agreements. . .
Cited – Hoystead v Commissioner of Taxation PC 1926
Lord Shaw: ‘In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different . .
See Also – Channel Hotels and Properties (UK) Ltd v Fahad Al Tamimi and First Penthouse Ltd CA 30-Jul-2004
. .
Cited – Thoday v Thoday CA 1964
The court discussed the difference between issue estoppel, and action estoppel: ‘The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first . .
Cited – Arnold v National Westminster Bank Plc HL 1991
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
Cited – Republic of India and Others v India Steamship Co Ltd (‘The Indian Endurance and The Indian Grace’) (No 1) HL 29-Mar-1993
Munitions were being carried to Cochin on board the defendants’ vessel. Some was jettisoned in a fire and the remainder was damaged. The cargo owners sought damages in India for short delivery under the bills of lading, as to the jettisoned cargo . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Coflexip S A and Another v Stolt Offshore Ms Ltd and others CA 27-Feb-2004
Proceedings had been brought by a third party in which the patent had been revoked. The Defendant in the first proceedings now sought release from an enquiry as to damages after being found, before the revocation, to have infringed the patent.
Cited – Leeds Industrial Co-operative Society Ltd v Slack HL 1924
The plaintiff complained of a threatened interference with ancient lights.
Held: Damages may be awarded in lieu of an injunction even where the injunction sought is a quia timet injunction, but that power imports a further power to give an . .
Cited – Dexter Ltd v Vlieland-Boddy CA 2003
The court discussed the significance of Johnson v Gore Wood.
Clarke LJ said: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co [2002] 2 AC 1, can be summarised as follows:
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Gleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .
Cited – Downsview Nominees Ltd and Another v First City Corporation Ltd and Another PC 19-Nov-1992
(New Zealand) The holder of a second debenture appointed receivers to the assets. The first debenture holder then also appointed receivers not to obtain repayment of its debt, but to disrupt the work of the first appointed receivers and in order to . .
Cited – Raja v Austin Gray (A Firm) CA 19-Dec-2002
A mortgagee is at all times free to consult his own interests alone as to whether and when to exercise his power of sale. The relationship and duties owed by the receiver are equitable only. Peter Gibson LJ said: ‘(1) A mortgagee with the power of . .
Not followed – Robertson v Norris 1857
A mortgage sale for purposes other than merely to recover payment of the debt was a ‘fraud on a power’. . .
Cited – Nash v Eads CA 1880
Sir George Jessel MR: ‘The mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the Court could not look into his motives for so doing. If he had a right to sell on June 1, and he then . .
Cited – Belton v Bass CA 1922
The mortgagees of shares in a brewery wanted to a director to be able later to acquire the shares. They could not grant an option. They sold the shares to the director, as mortgagees, and lent the purchase price, interest free. The director could . .
Cited – Ashley Guarantee plc v Zacaria CA 1993
In possession proceedings based on a mortgage debt, the mortgagee’s right to possession of the mortgaged property will not be defeated by a cross-claim of the mortgagor in the absence of some contractual or statutory provision to the contrary. . .
Cited – Farrar v Farrars Ltd CA 1888
The mortgagor of a quarry defaulted, and the mortgagees took possession. They were unable to sell the quarry, but formed a company which bought the quarry at a proper value. The mortgagor sought to set aside the sale.
Held: A mortgagee in . .
Cited – Quennell v Maltby CA 15-Nov-1978
A house was mortgaged to a bank. The house was then let to tenants at an annual rate of pounds 1,000. The tenants were protected as against the mortgagor by the Rent Acts. The tenancy was not binding on the bank. The mortgagor’s wife took a transfer . .
Cited – Palk v Mortgage Services Funding Plc CA 1993
The mortgagees had obtained an Order for possession with the intention, not of proceeding to sell the property but of waiting in the hope that the market might improve. The mortgagor was anxious that the property should be sold so that the proceeds . .
Cited – China and South Sea Bank Limited v Tan Soon Gin PC 1990
A mortgagee’s decision on sale is not constrained by reason of the fact that the exercise or non-exercise of the power will occasion loss or damage to the mortgagor. He can sit back and do nothing. He is not obliged to take steps to realise his . .
Cited – Joseph v Joseph CA 1967
The words in section 38(1) ‘purports to’ means ‘has the effect that’ so that an agreement to give up possession in two years when the lease would still have six years to run infringed section 38 as it would preclude an application or request for a . .
Cited – Mbasogo, President of the State of Equatorial Guinea and others v Logo Ltd and others QBD 21-Sep-2005
The court was asked whether a crime, which was not an actionable tort, constituted unlawful means for the purposes of the tort of conspiracy to injure by unlawful means. . .
Cited – Mainstream Properties Ltd v Young and others CA 13-Jul-2005
The claimant appealed refusal of his claim for inducing a breach of contract against the sixth defendant. It said that an intention to disturb a contract could be inferred.
Held: A mere recklessness as to whether contractual rights were . .
Cited – Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
Cited – Strover v Harrington 1988
A property was at first wrongly described by the agents as having mains drainage. Correcting information was sent to the buyer’s solicitors by the Agents, but the solicitors did not pass on the correction to their client. The mistake was later . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Credit and Mercantile Plc v Feliciangela Marks CA 14-May-2004
The defendant had charged her home to the claimant and fallen into arrears. There was a sub-charge executed on the same day in favour of the Bank of Scotland (BOS) under which the claimant agreed to repay to BOS the amount it owed to them.
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Paragon Finance Plc (Formerly the National Home Loans Corporation Plc) v Pender and Pender ChD 25-Nov-2003
Section 114 of the 1925 Act has no application to Registered Land. It provides for a transfer ‘unless a contrary intention is expressed’ in the mortgage. Thus if section 114 applies, all depends upon the true construction of the mortgage. The power . .
Cited – Michaels and Michaels v Taylor Woodrow Developments Ltd, etc ChD 19-Apr-2000
The respondents sought to strike out the claim for conspiracy and failure to comply with the Act. The respondent was landlord of premises occupied by the claimants. They had served a notice under the Act of their intention to sell.
Held: The . .
Cited – Kuwait Oil Tanker Company SAK and Another v Al Bader and Others CA 18-May-2000
The differences between tortious conspiracies where the underlying acts were either themselves unlawful or not, did not require that the conspiracy claim be merged in the underlying acts where those acts were tortious. A civil conspiracy to injure . .
Cited – Deakin, JDeakin v Corbett, Corbett, Halifax Plc CA 18-Dec-2002
The home owners requested the setting aside of the sale of their house after a re-possession, alleging impropriety, and that it had been sold at an undervalue. The respondent society had a rule that properties taken into possession could not be . .
Cited – Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd and Others HL 23-Jan-2001
The claimant took out insurance on its fleet of ships (the Star Sea). It had been laid up in its off season. The ship’s safety certificates were renewed before it sailed. It was damaged by fire. The insurers asserted that the ship had been . .

Cited by:

See Also – Meretz Investments Nv and Another v ACP Ltd and others ChD 14-Nov-2007
The parties disputed the success of a sale by a mortgagee in possession of various properties. The parties disputed the apportionment of costs.
Held: The appeal failed. Where there is no express agreement concerning the division of costs, a . .
Appeal from – Meretz Investments Nv and Another v ACP Ltd and others CA 11-Dec-2007
The claimant alleged that when exercising its power of sale under a mortgage over its land, the mortgagee had done so in order to override the claimant’s intention of granting a sub-lease, and that this was a tortious intention to induce a breach of . .
Cited – The Co-Operative Bank Plc v Phillips ChD 21-Aug-2014
The bank had brought possession proceedings against the defendant under two legal charges securing personal guarantees. The proceedings had been abandoned, but the court now was asked whether costs for the defendant should be on the standard or . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 05 July 2022; Ref: scu.238210

Lord Blantyre v The Lord Advocate and The Clyde Trustees: HL 19 Jun 1879

Property – Right to Foreshore of a Public Navigable River – Where Barony Title followed by Possession – Acts constituting Possession
A proprietor who held upon a barony title certain lands which were bounded by the river Clyde, which was a tidal navigable river, brought an action of declarator against the Crown and the Clyde Trustees to have it found that the shores and banks of the river ex adverso of his lands belonged to him, subject to the rights of the Crown as trustee for public uses, and to the rights conferred by Parliament upon the Clyde Trustees. The title contained no express grant of the shore, and no such specific and definite boundary as was sufficient to instruct that it was intended to be conveyed. The proprietor proved acts of possession for forty years by pasturing cattle, by cutting reeds for thatching, by taking sea-weed and drift-ware, by carrying away sand and stone for building, and c. held ( aff. judgment of Court of Session) that the pursuer’s title, taken in connection with the evidence of the possession had of the foreshore, was sufficient to entitle him to decree as asked.
Observations per Lord Blackburn upon the legal estimate to be put upon acts of possession in a case of that kind, and upon the circumstances which will give these acts weight in considering the evidence.

Judges:

Lord Hatherley, Lord Blackburn, and Lord Gordon

Citations:

[1879] UKHL 661

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 05 July 2022; Ref: scu.637964

Blackie and Others (Committee of Market Gardeners) v Magistrates of Edinburgh: HL 18 Feb 1886

Prior to 1823 the Fruit and Vegetable Market of Edinburgh was in use to be held by the Magistrates, in virtue of their exclusive right to hold fairs and markets, conferred by royal grant and legislation following thereon, in public streets of the city, at places varying from time to time. In 1823 a market-place was set apart and enclosed. In 1860 this site was acquired by a railway company under an Act providing that they should be bound to construct and make over to the Magistrates another marketplace, not in the open street, but enclosed, and of not less accommodation than that then existing, and the company subsequently agreed with the Magistrates to provide such a market-place, and constructed and gave over to the Magistrates in implement of the obligation a new market-place. In 1874 an Act was passed, of which section 8 provided that ‘the Corporation may cover in in a suitable and convenient manner the Fruit and Vegetable Market-place, and improve and better adapt the same for the purposes of such market, and for the accommodation of parties using the same, and of the public, and may make such internal and other arrangements and divisions in regard to stands, stalls, and shops as to them may seem suitable; provided always that the ground floor only of such market-place shall be used for such Fruit and Vegetable Market, and that all vacant portions of such marketplace, whether on the ground floor or above the same, and all vacant and unlet stands, stalls, or shops in or on such market-place, may be let or used by the Corporation for such purposes, and for such rents or rates as to them shall seem proper.’ Increased dues were levied by the Magistrates for the market gardeners’ stances in respect of these improvements. The market-place, under the bye-laws of the Magistrates, comprehended not only the market-house, but the streets, and co, within 100 yards measured from any part of it. The market was held on the mornings of three days in each week. The Magistrates having given for a public exhibition the use of the marketplace for a period of three weeks, so as to exclude the market gardeners and their customers from the market-house, and caused the market to be held on the public street within the 100 yards radius, an action was raised by the market gardeners to try the question of the power of the Magistrates so to act.
Held (aff. judgment of First Division) that the market-house was the ‘market place’ within the meaning of sec. 8 above quoted, and was held by the Magistrates primarily for use as a fruit and vegetable market; and (2) that it was beyond the powers of the Magistrates to exclude the market gardeners and the public using the market-house from the use of it for three weeks continuously, assigning them only unenclosed ground on the neighbouring streets.
Opinion (diff. from First Division) that the Magistrates had no discretion to exclude the public from the use of the market during market hours, whether such exclusion was to the extent of causing serious and material inconvenience or not.

Judges:

Lord Chancellor Herschell, Lords Watson, Fitzgerald, and Halsbury

Citations:

[1886] UKHL 501, 23 SLR 501

Links:

Bailii

Jurisdiction:

England and Wales

Local Government, Land

Updated: 05 July 2022; Ref: scu.637727

Magistrates of Perth v North British Railway Co: HL 27 Mar 1885

Statute – Statutory Obligation to Perform an Act where no Time of Performance Expressed – Obligation to Perform Act to Satisfaction of Board of Trade – Jurisdiction – North, British Railway Company New Tay Viaduct Act 1881 (44 and 45 Vict. c. cxxxvii.), sec. 21
Section 21 of the North British Railway Company New Tay Viaduct Act, which was obtained by the North British Railway Company for authority to erect a bridge over the Tay higher up the river than that which was blown down in 1879, provided that ‘the company shall abandon and cause to be disused as a railway so much of the North British Railway as lies between the respective points of junction therewith of railway No. 1 and railway No. 2; and shall remove the ruins and debris of the old bridge and all obstructions interfering with the navigation caused by the old bridge, to the satisfaction of the Board of Trade.’ Held ( aff. judgment of Second Division) (1) that there was thereby imposed an absolute obligation to remove the ruins of the former bridge; (2) that the Court of Session had jurisdiction to order implement of it, the reference to the Board of Trade merely pointing to the duty imposed thereon to see that the obligation was properly discharged, and, if necessary, to exercise control over the company’s operations.
Question whether the obligation ran from the passing of the Act.
Observations on the meaning of the expression ‘to the satisfaction of the Board of Trade.’

Judges:

Lord Chancellor, Lords Watson and Fitzgerald

Citations:

[1885] UKHL 593, 22 SLR 593

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 05 July 2022; Ref: scu.637751

Sir Robert Burnett, Bart v The Great North of Scotland Railway Co: HL 24 Feb 1885

Superior and Vassal – Irritancy – Railway – Private Right to Stop Trains
The proprietor of land through which a railway was formed feued to the railway company at a nominal feuduty land on which the company undertook to erect and maintain ‘a station for passengers and goods travelling by the . . railway, at which all passenger trains shall regularly stop.’ An irritant clause provided that in the event of the company discontinuing the use of the station as a regular goods and passenger station, the grant should be null, and the ground and all buildings thereon should revert to the granter. The company erected the station, which was called C, and for a time all passenger trains stopped at it, but there were established after the date of the contract certain trains subsidised in the public service by the Home Office and Post Office, in which ordinary passengers might travel, and which were regularly advertised as conveying passengers in the company’s time tables. These trains were not regularly stopped at C. In an action by the proprietor to have it found that the company were bound to stop at C, to take up and set down passengers, all trains not hired by individuals for their exclusive use, and in particular the trains above described- held ( rev. judgment of Second Division) that these trains came within the obligation, and that the company were bound to stop them.
There were also established certain Saturday excursion trains not stopping at C. The tickets for these trains were all return tickets only available to return the same day. Question, Whether these trains were passenger trains in the sense of the obligation?

Judges:

Lord Chancellor, Lords Watson, Bramwell, and Fitzgerald

Citations:

[1885] UKHL 456, 22 SLR 456

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 05 July 2022; Ref: scu.637749

Clippens Oil Co, Ltd v Edinburgh and District Water Trustees: HL 5 Aug 1902

The A company, who were the owners of a mineral field, through which two water-pipes, known respectively as the C. and M. pipes, were laid in 1821 and 1877 respectively, but in the same pipe-track, received a notice under the Waterworks Clauses Act 1847 from the Water Trustees, to whom the pipes belonged, requiring them to abstain from working the minerals in the vicinity of the pipes, and undertaking to make compensation therefor, ‘in so far as you are entitled thereto,’ subject to the following reservation:-‘Declaring that the foregoing notice is given without prejudice to and under reservation of . . all objections to your working out the said minerals competent to us, and of our right of support of the C. pipe passing through the said mineral field.’ The amount of compensation to be paid in respect of the non-working of the minerals was fixed by the oversman in an arbitration after the usual procedure. Subsequently the Water Trustees obtained decree in an action, whereby it was found that, independently of the provisions of the Waterworks Clauses Act, the Water Trustees had a common law right of support for the C. pipe, and that the A Company were not entitled to work the minerals adjacent or subjacent to the C. pipe in such manner as to injure the said pipe or interfere with the continuous flow of water through it. The Water Trustees thereupon refused to implement the oversman’s award, on the ground that the minerals, for which compensation had been awarded, could not be worked out without causing the C. pipe to subside; that under the reservation above quoted it was now open to them to refuse implement of the award; and that the oversman in making his award had not taken the Water Trustees’ right to support for the C. pipe into account. Held ( aff. judgment of the First Division- dub. Lord Chancellor) that the Water Trustees were not entitled upon these grounds to refuse implement of the award, in respect that the effect to be allowed to the right of support for the C. pipe was a matter affecting the question of amount of compensation, and therefore a question for the oversman, and that the oversman having decided upon the question of the amount payable, his decision thereon was not subject to review.

Judges:

Lord Chancellor (Halsbury), Lord Macnaghten, Lord Davey, Lord Brampton, Lord Robertson, and Lord Lindley

Citations:

[1902] UKHL 860, 39 SLR 860

Links:

Bailii

Jurisdiction:

Scotland

Arbitration, Land

Updated: 05 July 2022; Ref: scu.630803

The Earl of Roseberry v The Creditors of Hugh Lord Viscount Primrose, Deceased: HL 3 Apr 1767

Entail – Registration – Act 1685 – Passive Representation. – (1.) An entail Mas made, and charter and infeftment passed thereon some years before the Act 1685, regarding the recording of entails, Held, that in order to protect against creditors, such an entail must be recorded. (2.) An heir succeeding, not by an universal title, but as heir under a particular destination, and not haeres alioquin successurus, found only liable to the extent of the value to which he succeeded.

Citations:

[1767] UKHL 3 – Paton – 651, (1767) 3 Paton 651

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 04 July 2022; Ref: scu.560700

Manchester Corporation v Farnworth: HL 1930

The House was asked as to the result in law when a nuisance is the inevitable result of carrying out the functions authorised by Parliament.
Held: Viscount Dunedin said: ‘When Parliament has authorized a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense.’
Viscount Sumner said: ‘the first question is ‘What did the Legislature authorize?’ The sections can be read as directing the use of such a plant as was originally erected or even as relieving the Corporation from liability for nuisance on proof that all due care has been used. The case becomes one of quite a simple proof. I think the condition of freedom from liability is proof of due care but not that any particular plant or user can be implied from the general terms employed. The appellants are right in saying that the Manchester Corporation Act, 1914, is not a ‘special Act’ within s. 1 of the Electric Lighting Clauses Act of 1899, but in effect varies or excepts the operation of the scheduled clauses of that Act. What is required of them is to use all due and reasonable means and precautions to avoid a nuisance. The burden of proving that they have done so is on them.’

Judges:

Viscount Dunedin, Viscount Sumner

Citations:

[1930] AC 171

Statutes:

Manchester Corporation Act, 1914

Jurisdiction:

England and Wales

Cited by:

Cited – The Manchester Ship Canal Company Ltd and Another v United Utilities Water Plc SC 2-Jul-2014
The court was asked: ‘whether a sewerage undertaker under the Water Industry Act 1991 has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents’ canals without the consent of their . .
Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 04 July 2022; Ref: scu.551304

Isle of Anglesey County Council and Another v The Welsh Ministries and others: CA 20 Feb 2009

The claimants, the Commissioners and the County Council, sought declarations to establish their right to build a marina on parts of the foreshore currently used for commercial mussel fishing. Section 40 of the 1868 Act authorised ministers to make orders conferring exclusive rights of several oyster and mussel fishery on ‘grantees’, defined as ‘the persons obtaining the order’.
Held:
Carnwath LJ said: ‘Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without the risk of being upset by a novel approach. That applies particularly in a relatively esoteric area of the law such as the present, in relation to which cases may rarely come before the courts, and the established practice is the only guide for operators and their advisers.’
and ‘The present statutory context provides an unusually strong, and in my view fully sufficient, basis for having regard to the later history. The Act itself contained a procedure for enabling any principal objections to the form of an order to be settled by Parliament itself. In that respect, to borrow Lord Nicholls’ phrase in the Jackson case, the involvement of the legislature has gone ‘much deeper’ than in most of the cases in the books. In my view that history points a clear way to the resolution of the ambiguity in the 1868 statute, in so far as that is left in doubt by the context and purpose of the statute itself.’
‘ . . the commissioners recognised the possible ambiguity in the 1868 Act, and gave a clear indication as to how it should be resolved. They found support, as I have done, in the ordinary incidence of a ‘several fishery’ and also in the specific provision in s.29 for the establishment of a ‘body corporate’. By approving the Bill in the form recommended by them, Parliament can arguably be taken, at least for the future, as impliedly endorsing the reasoning of the report.’
Pill LJ added: ‘Carnwath LJ has described the subsequent legislative events. I agree with him that, when construing section 40, the present statutory context provides an unusually strong basis for having regard to the later history. The legislature has subsequently been involved both in approving orders under the 1868 Act, as its section 38 originally required, and in passing the 1967 Act with knowledge of the many extant orders under the earlier statute, including the 1962 Order at issue in this case. I agree with Carnwath LJ’s analysis of the Law Commission report and its effects.’

Judges:

Pill, Carnwath, Lawrence Collins LJJ

Citations:

[2009] EWCA Civ 94, [2009] NPC 28, [2009] 3 WLR 813, [2009] 3 All ER 1110, [2010] QB 163

Links:

Bailii

Statutes:

Sea Fisheries Act 1868 40

Jurisdiction:

England and Wales

Citing:

Appeal from – Isle of Anglesey County Council and Another v Welsh Ministers and others QBD 6-May-2008
Challenge to the grant of planning permission to create a marina in an area designated as a mussel fishery. . .

Cited by:

Cited – British Pregnancy Advisory Service v Secretary of State for Health Admn 14-Feb-2011
The claimant sought a declaration that the administration of an abortifacient drug was not ‘any treatment for the termination of pregnancy’ for the purposes of section 1 of the 1967 Act, allowing the piloting and possible adoption of early medical . .
Cited – Bloomsbury International Ltd v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs SC 15-Jun-2011
The 1995 Regulations imposed a levy on fish both caught and first landed in the UK and also on imported fish products. The claimants, importers challenged the validity of the latter charges, saying that they went beyond the power given by the 1981 . .
Cited – Doogan and Another v NHS Greater Glasgow and Clyde Health Board SCS 24-Apr-2013
(Extra Division, Inner House) The reclaimers, Roman Catholic midwives working on a labour ward as co-ordinators, sought to assert a right of conscientious objection under the 1967 Act. The respondents said that only those directly involved in the . .
Cited – British Pregnancy Advisory Service, Regina (on The Application of) v Secretary of State for Health and Social Care Admn 5-Jun-2019
Abortion Time Limit statement was correct.
The Court considered ‘ the correct interpretation of the words, ‘the pregnancy has not exceeded its twenty-fourth week’ in s.1(1)(a) of the Abortion Act 1967 ‘ The guidance was challenged as the calculations. The date of the beginning of the . .
Lists of cited by and citing cases may be incomplete.

Land, Agriculture

Updated: 04 July 2022; Ref: scu.301650

Trustees In the Charity of Sir John Morden v Mayrick; Graham v Mayrick: CA 12 Jan 2007

The claimant had owned tracts of land in London for very many years, but the title deeds had been lost. The defendant had purchased a part from a company who had in turn purchased from the claimants, but the parties disputed an adjacent strip of land. Under a compromise agreement, the claimants had agreed to transfer a further strip to the defendant in return for other land. The defendant refused to accept the title offered. The claimants sought specific performance of the agreement, supported by a Land Registry statement that they would accept the claimant’s title. The defendant now appealed. The appeal failed. The facts he now sought to set up against the claimants’ title had been known to him at the time of the compromise. The defendant had misrepresented the content of the letter which he said was itself misrepresentation. The defendant had no real prospect of defending the claim for specific peformance.

Citations:

[2007] EWCA Civ 4

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Graham and others v Mayrick ChD 23-Mar-2006
The claimants sought specific performance of a compromise agreement with the defendant after a dispute over a strip of land. The defendant appealed a finding that the claimants had shown satisfactory title.
Held: ‘It has long been established . .
Leave to Appeal – Graham and Others v Mayrick CA 1-Jun-2006
Application for leave to appeal – granted. . .
Cited – Smirk v Lyndale Developments Ltd ChD 1975
The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord.
Held: The cases demonstrated that ‘the law . . has got into something of a tangle’, but the doctrine, at least as . .
Cited – Smirk v Lyndale Developments Ltd CA 2-Jan-1975
Judgment upheld . .
Cited – The Royal Brompton Hospital National Health Service Trust v Hammond and Others (No 5) CA 11-Apr-2001
When looking at an application to strike out a claim, the normal ‘balance of probabilities’ standard of proof did not apply. It was the court’s task to assess whether, even if supplemented by evidence at trial, the claimant’s claim was bound to fail . .

Cited by:

Cited – Westvilla Properties Ltd v Dow Properties Ltd ChD 15-Jan-2010
The owner sought specific performance of its contract to sell land to the defendant. The land was subject to a proposed lease which the defendant had concluded was uncertain and unattractive, and claimed to have rescinded the contract.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 July 2022; Ref: scu.247685

Shephard and others v Turner and Another: CA 23 Jan 2006

The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. It was in effect part of a building scheme. The tribunal had found that the grant of planning permission indicated the reasonableness of the application, and that there would be only a limited adverse effect on neighbouring properties, and awarded small sums in compensation to the neighbours for expected disturbance.
Held: The tribunal had borne in mind the statutory requirements as interpreted in the cases to the ‘thin end of the wedge’ argument. As to the works required to broaden the drive, the Tribunal should have applied the test of what would be reasonable user as a whole, but (Lord Justice Carnwath): ‘account must be taken of the policy behind paragraph (aa) in the amended statute. The general purpose is to facilitate the development and use of land in the public interest, having regard to the development plan and the pattern of permissions in the area. The section seeks to provide a fair balance between the needs of development in the area, public and private, and the protection of private contractual rights. ‘Reasonable user’ in this context seems to me to refer naturally to a long term use of land, rather than the process of transition to such a use. The primary consideration, therefore, is the value of the covenant in providing protection from the effects of the ultimate use, rather than from the short-term disturbance which is inherent in any ordinary construction project. There may, however, be something in the form of the particular covenant, or in the facts of the particular case, which justifies giving special weight to this factor. ‘ Though there may have been weakness in the reasoning, the decision had properly taken account of the correct issues and the appeal failed.

Judges:

Lord Justice Carnwath, Lord Justice Mummery, Lord Justice Latham

Citations:

[2006] EWCA Civ 8

Links:

Bailii

Statutes:

Law of Property Act 1925 84(1)

Jurisdiction:

England and Wales

Citing:

Cited – Gilbert v Spoor CA 1983
In the case of an application to remove or vary covenants for a property within a building scheme, there is ‘a greater onus of proof upon any applicants for the modification of covenants to show that the requirements of section 84 of the Act are . .
Cited – Palser v Grinling HL 1948
The House considered the meaning of the word in the phrase ‘substantial proportion of the whole rent’.
Held: In accordance with ‘one of its primary meanings’; it was to be read as ‘equivalent to considerable, solid or big’. The concept was . .
Cited – SJC Construction v Sutton London Borough Council CA 1976
An appeal was mounted against the decision of the Lands Tribunal to allow the variation of a restrictive covenant under 84(1A)(b) only and not under 84(1A)(a). The tribunal had said that the word ‘substantial’ required applicants to show: ‘that the . .
Cited – Re Snaith and Dolding’s Application LT 1995
The applicants sought modification of a covenant, to enable them to build a second house on a single plot within a building scheme.
Held: ‘The position of the Tribunal is clear. Any application under section 84(1) must be determined upon the . .
Cited – Stannard v Issa PC 1987
(Jamaica) The landowners proposed to erect six blocks providing some 40 dwellings, and sought variation of a restrictive covenant to allow this. The provsion as to the variation of restrictive covenants was whether there were: ‘practical benefits . .
Cited – Fairclough Homes Ltd, Re LT 8-Jun-2004
Application was made to vary a restrictive covenant: ‘ . . how the character of the area and the amenities would be affected by the modification of the restriction is not in my view to be judged by envisaging the worst that could be done without . .
Cited – McMorris v Claude Brown and others PC 30-Jul-1998
(Jamaica) It could be a proper argument that the first relaxation of a restrictive covenant was merely the thin end of the wedge and it may be sufficient to reject the application though there was no immediate detriment to dominant land. . .
Cited – Re Kershaw’s Application LT 1975
Two bungalows were to be built in the grounds of a house subject to a restrictive covenant. The tribunal considered the degree of disturbance which would be suffered by the objector neighbours.
Held: The neighbours would ‘suffer considerably . .
Cited – Re Tarhale Limited LT 1990
Two five bedroom houses were proposed on the garden of a plot for which only one plot was permitted by the restrictive covenant. There was a specific covenant relating to the use of the approach drive and preventing its use by lorries or heavy . .
Cited – Re Bromor Properties Limited LT 1995
On an application to vary a restrictive covenant preventing further building, construction disturbance was treated as one of number of factors justifying refusal to modify. . .
Cited – Re Lee’s Application LT 1996
There was a proposal to erect a detached in house in the grounds of a property subject to a ‘one house per plot’ restriction. The tribunal considered the issue of disturbance: ‘I do not think that the prevention of a short term interference with the . .
Cited – Hampstead and Suburban Properties Ltd v Diomedous ChD 1969
A covenant against causing nuisance or annoyance is to be read to refer to wider nuisance than is referred to by the tort of nuisance. It is to be applied ‘according to robust and common sense standards’ Megarry J granted an interlocutory injunction . .
Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Cited – Railtrack Plc (In Railway Administration) v Guinness Limited CA 20-Feb-2003
The case involved an appeal from the Land’s Tribunal arbitration award setting compensation for land to be acquired. The question was whether the value should have been that acceptable to a willing seller, or to a ‘a company regulated and subsidised . .
Cited – Diggens and Others, Re (No 2) LT 21-Jul-2000
There was a proposal to erect five houses in the gardens of houses subject to restrictive covenants.
Held: The existing restrictions did secure practical benefits. The Tribunal referred to a number of factors, one of which was ‘the prevention . .
Mentioned – Andreae v Selfridge and Co Ltd CA 1938
The plaintiff had a hotel. The rest of the island had been acquired by the defendant which was demolishing and rebuilding the other properties. The plaintiff complained, and the judge found, that by reason of the operations, which involved noise and . .

Cited by:

Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 July 2022; Ref: scu.237841

Wallace and Another v Crossley and Another: CA 2 Nov 2005

The defendants sought leave to appeal against an order acknowledging a drainage easement over their land. The easement of drainage was subject to a condition that it did not come to be a nuisance. It was found so to have become.
Held: The allegations of bias in the judge were not made out: ‘there was nothing in the judge’s language that could possibly be said to evidence actual bias, or to have given rise to an appearance of bias from the point of view of a fair minded and informed observer, which is the relevant legal test.’

Judges:

The Hon Mr Justice Richards

Citations:

[2005] EWCA Civ 1463

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Wallace and Another v Crossley and Another CA 10-Jul-2009
Appeal against refusal on stay of order for sale of house to pay costs after loss in litigation. . .
See Also – Wallace and Another v Crossley and Another CA 24-Jul-2009
. .
Lists of cited by and citing cases may be incomplete.

Land, Nuisance, Litigation Practice

Updated: 04 July 2022; Ref: scu.237500

Raymond, Regina (on the Application Of) v London Borough of Ealing: CA 16 Nov 2005

Citations:

[2005] EWCA Civ 1480

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Connors v The United Kingdom ECHR 27-May-2004
The applicant gypsies had initially been permitted to locate their caravan on a piece of land owned by a local authority, but their right of occupation was brought to an end because the local authority considered that they were committing a . .
Lists of cited by and citing cases may be incomplete.

Local Government, Land

Updated: 04 July 2022; Ref: scu.235533

Whitgift Homes Limited and Others v Pauline Stocks and Others: CA 21 Nov 2001

Annexation of covenants – building scheme – enforceability after plots sold off.

Judges:

Lord Justice Judge, Lord Justice Jonathan Parker, And, Mr Justice Bodey

Citations:

[2001] EWCA Civ 1732, [2001] NPC 169, [2001] 48 EGCS 130

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 July 2022; Ref: scu.166932

Countess of Rothes v Kirkcaldy Waterworks Commissioners: HL 26 Jul 1882

Reparation – Property – Damage done by Flood – water – Liability of Statutory Commissioners – Damnum fatale – Kirkcaldy and Dysart Water – Works Act 1867 (30 and 31 Vict. cap. cxxxix).
Statutory commissioners were authorised by Act of Parliament to construct waterworks, reservoirs, andc., under various conditions and restrictions, and, inter alia, that they should make good to a proprietor of lands, through which a burn that had been intercepted to feed one of their reservoirs passed in its subsequent course, any damage caused by reason of ‘any bursting or flood or escape of water’ from the reservoir. Held ( diss. Lord Blackburn, and rev. judgment of the Court of Session) that the commissioners were liable for damages to the lands of the inferior proprietor occasioned by a flood coming from their reservoir, whether that flood was or was not due to the existence of the reservoir.

Judges:

Lords Blackburn, Watson, and Fitzgerald

Citations:

[1882] UKHL 907, 19 SLR 907

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 04 July 2022; Ref: scu.637742

Grahame v The Magistrates of Kirkcaldy: HL 26 Jul 1882

A Court of Equity has a discretion in highly exceptional cases to withhold from parties the legal remedy to which they would in ordinary cases be entitled as a matter of course.
An inhabitant of a burgh had obtained interdict against the magistrates to prevent them building on a particular piece of ground dedicated to the public uses of the burgh. While this process was in dependence the magistrates proceeded with the building, and completed it before interdict was granted; the building was for public purposes. The complainer then brought an action for declarator of the public right, and decree against the magistrates to remove the building; the magistrates offered to convey to the community a piece of ground in every way as suitable for public purposes in lieu of that now occupied by buildings. Held (aff. judgment of the Court of Session) that this offer was a reasonable offer, and that in respect the interest of the pursuer was as one of the community, the Court was entitled to apply the rule stated above, and to refuse the remedy asked in so far as the removal of the building was demanded.
Opinion, that if the pursuer had sued as an individual to enforce his own private right and interest in similar circumstances the Court could not have denied him his full legal remedy.
Held (rev. judgment of Court of Session) that the pursuer was entitled to decree of declarator and to his expenses in both Courts, in respect the magistrates had gone on to complete the building after the process of interdict had been brought, and had not proposed to recognise the rights of the community except in so far as they might be forced to recognise and make provision for them by the pursuer’s action.
Question whether the case of Begg v. Jack, October 26, 1875, 3 R. 35, was well decided.

Judges:

Lord Chancellor Selborne, Lords O’Hagan, Blackburn, Watson, and Bramwell

Citations:

[1882] UKHL 893, 19 SLR 893

Links:

Bailii

Jurisdiction:

Scotland

Land, Equity

Updated: 04 July 2022; Ref: scu.637744

Earl of Zetland v Hislop and Others: HL 12 Jun 1882

A superior in granting feurights in the beginning of the century in what was then a small village, inserted as a condition of these rights a prohibition against the use of the buildings to be erected on the ground as public-houses; held ( rev. judgment of the Court of Session) that such a condition was neither null as being inconsistent with the right granted, nor unlawful as being contrary to public policy; and
Therefore (a) that although the village had become a populous place, and had adopted the General Police Act, the superior was entitled nevertheless to enforce the condition of the rights granted by him upon showing a patrimonial interest in doing so; and (b) That his right of superiority, by virtue of which the dominium utile of all the feus might return to him, the fact that he was proprietor of certain dwelling-houses in the town and of ground in the neighbourhood suitable for feuing, and the proximity of his own dwelling-house, constituted such a patrimonial interest.
Remit to the Court of Session to allow a proof of averment by the vassals as to acquiescence importing a discharge of the condition contained in their right.

Judges:

Lord Chancellor Selborne, Lords Black-Burn and Watson

Citations:

[1882] UKHL 680, 19 SLR 680

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 04 July 2022; Ref: scu.637740

Crosse v Bankes and Another: HL 5 Feb 1886

A brother and sister who were at issue as to which of them had right to succeed to an entailed estate, entered into an agreement that the sister, in case she should be found entitled to have the estates entailed on her, should ‘allow’ to the brother ‘the one-half of the free rental of the estates during all the days and years of her life, and she binds and obliges herself and her representatives to make payment to him of the said free rental accordingly.’ The brother entered into a similar obligation, to take effect if be should be found entitled to have the estates entailed on him. The sister was found entitled to have the estates entailed on her, and she paid half the rents to her brother till his death. Held ( rev. judgment of First Division) that she was bound during her life to continue to pay one-half of the rents to his executor.

Judges:

Lord Chancellor Halsbury, Lords Watson, Bramwell, and Fitzgerald

Citations:

[1886] UKHL 387, 23 SLR 387

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 04 July 2022; Ref: scu.637728

Hislop v Fleming: HL 1 Mar 1886

The proprietor of an estate situated on the outskirts of a large city worked out the minerals and then proceeded to feu out the land for dwelling-houses of a superior class, there being left upon his land adjoining the feus large bings or heaps of mineral refuse or ‘blaes.’ After feuing had gone on to a considerable extent he proceeded to set fire to these bings, with the result of causing material discomfort to the feuars by the smoke thence arising. Held ( aff. judgment of Second Division) that the feuars were entitled to interdict against the burning of the bings in such a manner as to cause material discomfort and annoyance to them.
Held that a finding ‘that the ignition of any heap or bing of ‘blaes” on certain lands ‘would cause material discomfort and annoyance to the pursuers’ of a process of interdict, was a finding of fact within the meaning of the Judicature Act 1825, and not capable of being reviewed by the House of Lords on appeal.

Judges:

Earl of Selborne, Lord Watson, Lord Bramwell, Lord Fitzgerald, Lord Halsbury, and Lord Ashbourne

Citations:

[1886] UKHL 491, 23 SLR 491

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 04 July 2022; Ref: scu.637729

Paterson and Others v Magistrates of St Andrews and Others: HL 12 Jul 1881

Burgh – Administration of Common Good by Magistrates – Road
Held (aff. judgment of Court of Session) that the magistrates of a burgh who held certain ground for the recreation of the public were within their rights of administration in constructing a macadamised road for public use over a part of that ground, it being proved that the road did not interfere with such forms of public recreation as were in use to be practised thereon; but that it was not within the power of the magistrates to alienate the solum of the said road, or to suffer the commissioners of police or any other body to acquire rights of administration over it, and judgment of Court of Session altered so as to ensure this condition.
No expenses allowed to a party who had been successful as appellant in upholding the judgment of the Court of Session, in respect that an important qualification was adjected to that judgment by the House of Lords.

Judges:

Lord Chancellor Selborne, Lords Blackburn and Watson

Citations:

[1881] UKHL 728, 18 SLR 728

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 04 July 2022; Ref: scu.636798

Graham and Others v Mayrick: CA 1 Jun 2006

Application for leave to appeal – granted.

Judges:

Neuberger LJ

Citations:

[2006] EWCA Civ 840

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Graham and others v Mayrick ChD 23-Mar-2006
The claimants sought specific performance of a compromise agreement with the defendant after a dispute over a strip of land. The defendant appealed a finding that the claimants had shown satisfactory title.
Held: ‘It has long been established . .

Cited by:

Leave to Appeal – Trustees In the Charity of Sir John Morden v Mayrick; Graham v Mayrick CA 12-Jan-2007
The claimant had owned tracts of land in London for very many years, but the title deeds had been lost. The defendant had purchased a part from a company who had in turn purchased from the claimants, but the parties disputed an adjacent strip of . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 04 July 2022; Ref: scu.242697

Prudential Assurance Company Ltd v Highways Agency: LT 21 Oct 2005

LT COMPENSATION – compulsory purchase – surveyor’s fees – additional work carried out by surveyor resulting from dispute over terms of transfer deed, after quantum of surveyor’s fees agreed – whether statutory contract finalising compensation terms including surveyor’s fees – additional fees held not recoverable

Citations:

[2005] EWLands ACQ – 33 – 1998

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 04 July 2022; Ref: scu.235001

Proctor and Another v Highways Agency: LT 28 Oct 2005

COMPENSATION – compulsory purchase – caravan park – bisected by bypass – whether deemed permission for caravan site granted as result of 1960 application for site licence – whether planning consent would have been granted for caravan site use south of bypass line in the no-scheme world – extent of diminution in value of retained undeveloped pitches, warden’s bungalow and amenity land – whether value attributable to existing income where site suitable for redevelopment – whether value affected by possible ransom over access and services passing across canal – compensation awarded andpound;500,325

Citations:

[2005] EWLands ACQ – 151 – 2002

Links:

Bailii

Land

Updated: 04 July 2022; Ref: scu.235000

Logan v Scottish Water: OHCS 1 Nov 2005

Judges:

Lord Osborne and Lady Cosgrove And Lord Philip

Citations:

[2005] ScotCS CSIH – 73, 2006 SC 178, [2005] CSIH 73

Links:

Bailii, ScotC

Citing:

Cited – Ocean Leisure Ltd v Westminster City Council LT 31-Dec-2003
LT COMPENSATION – injurious affection – hoardings erected in street during construction works outside shop premises – preliminary issue – whether claim under Compulsory Purchase Act 1965 s 10 valid – held . .

Cited by:

Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land, Damages

Updated: 04 July 2022; Ref: scu.234483

Lloyds TSB Private Banking Plc (personal representative of Rosemary Antrobus deceased) v Inland Revenue (Capital Taxes); Re Cookhill Priory (No 2): LT 10 Oct 2005

LT TAX – Inheritance Tax – agricultural property relief – agricultural value – agricultural property – farmhouses – whether house occupied by ‘lifestyle’ farmer could be farmhouse – held bid of such person could not represent agricultural value – Inheritance Tax Act 1984 s 115(2) and (3)
George Bartlett QC : ‘a farmhouse for the purposes of section 115(2) is the house of the person who lives in it in order to farm the land comprised in the farm and who farms the land on a day to day basis. The agricultural value of the house in the present case therefore falls to be determined on the assumption that the perpetual covenant to be implied by virtue of section 115(3) would have prevented its use other than in this way. This would have excluded, therefore, the lifestyle purchaser whose principal reason for living in the house was the amenity afforded by it and by the land.’

Judges:

George Bartlett QC The President and Mr N J Rose FRICS

Citations:

[2005] EWLands DET – 47 – 2004

Links:

Bailii

Citing:

Cited – Inland Revenue Commissioners v Korner HL 19-Feb-1969
Income tax, Schedule D – D eduction – Farm ing – Maintenance, etc., expenditure on farm house – Whether expenditure for domestic purposes distinct from those of the trade – Income Tax A c t 1952 (15 and 16 Geo. 6 and 1 Eliz. 2, c. 10) 55. 124, . .
Cited – Lindsay v Commissioners of Inland Revenue 1953
The court was asked whether a building was a farmhouse for the purpose of deciding whether reliefs were available for capital expenditure. . .
See Also – Lloyds TSB Bank Plc (Antrobus Deceased) v Inland Revenue (No 1) SCIT 17-Oct-2002
SCIT INHERITANCE TAX – agricultural property relief – freehold house which was owned and occupied by the deceased – agreed that it was a farmhouse – whether it was of a character appropriate to the property – yes . .
Cited – Commissioners of Inland Revenue v John M Whiteford and Son 1962
The farm was farmed by a father and son in partnership. They had both lived in the original farmhouse, but a new house was built to house the son. The issue was whether the new house was a farmhouse or an agricultural cottage. If it was a cottage . .
Cited – Duke of Buccleuch v Inland Revenue Commissioners HL 1967
When a valuation was to be attributed to a property the test must be applied to the property as it actually existed and not to some other property, even if in real life a vendor would have been likely to make some changes or improvements before . .
Cited – Starke and Another (Executors of Brown Deceased) v Inland Revenue Commissioners ChD 24-Feb-1994
Mr Brown, the deceased, had owned a site on which was built a substantial farmhouse, with six bedrooms, and various outbuildings. The site formed part of a farm and the issue was whether the site was ‘agricultural land or pasture’ within the meaning . .
Cited – Prosser v The Commissioners of Inland Revenue SCIT 12-Mar-2003
INHERITANCE TAX – interest on outstanding tax – whether not due on account of Human Rights points – interest due. . .
Cited – Higginson (Executors of) v Inland Revenue SCIT 3-Sep-2002
Inheritance Tax Act 1984, s.115(2) – Agricultural relief – ‘Farmhouse’ . .
Cited – Dixon v Inland Revenue Commissioners SCIT 22-Oct-2001
SCIT INHERITANCE TAX – relief for agricultural property – cottage with garden and orchard extending to 0.6 acres – whether activities were agriculture – whether orchard and garden were agricultural land or . .
Cited – Inland Revenue Commissioners v Stenhouse’s Trustees 1992
. .
Lists of cited by and citing cases may be incomplete.

Land, Inheritance Tax

Updated: 04 July 2022; Ref: scu.231288

Woods and Another v Riley and Another: CA 4 Jul 2005

Neighbours claimed under a covenant requiring the defendants not to use their land in such a way as to cause a nuisance. The neighbours had extended their shop so as to include a post office.
Held: The appeal was dismissed. Claims in nuisance and annoyance should be viewed robustly. The shop was important in a small village community. The sorting room had been moved, but it was open to the judge on the evidence to find that the extent of increase in noise was not actionable.

Judges:

Chadwick LJ, Rix LJ, Carnwath LJ

Citations:

[2005] EWCA Civ 1129

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 – Hampstead and Suburban Properties v Diomedus 1969
McGarry J said: ‘nuisance and annoyance will continue to be regarded by the court according to robust and commonsense standards’. . .
Cited – Southwark London Borough Council v Mills/Tanner; Baxter v Camden London Borough Council HL 21-Oct-1999
Tenants of council flats with ineffective sound insulation argued that the landlord council was in breach of the covenant for quiet enjoyment in their tenancy agreements.
Held: A landlord’s duty to allow quiet enjoyment does not extend to a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 July 2022; Ref: scu.230943

Thomas and Another v Gt Pryce (Farms) Ltd: CA 5 Jul 2005

The defendant appealed an order for specific performance of a contract to purchase land. There was a dispute as to the extent of the land.
Held: The seller had failed to describe the property as he wished. The description was so uncertain as to be ineffective, and the appeal succeeded.

Judges:

Chadwick LJ, Rix LJ, Carnwath LJ

Citations:

[2005] EWCA Civ 1111

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 04 July 2022; Ref: scu.230942

Wellington v Secretary of State for Transport: LT 28 Sep 2005

LT COMPENSATION – compulsory purchase – woodland – hope value – severance and injurious affection – function and jurisdiction of Lands Tribunal – negotiations not evidence of value and usually inadmissible – compensation awarded: andpound;6,000 plus reasonable surveyor’s fees

Judges:

P H Clarke FRICS

Citations:

[2005] EWLands ACQ – 42 – 2004

Links:

Bailii

Land

Updated: 04 July 2022; Ref: scu.230959

Downing v Lissimore: CA 6 Nov 2002

Application for order to reflect interest of cohabiting partner in house.

Citations:

[2002] EWCA Civ 1698, [2003] 2 FLR 308

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Lissimore v Downing ChD 31-Mar-2003
The claimant asserted an estoppel in land registered in the name of the defendant.
Held: Unspecific statements made by the defendant that ‘she would never want for anything’, or that ‘he would take care of her’, or that ‘he had looked after . .
Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 03 July 2022; Ref: scu.217812

Porter v Ipswich Corporation: 1922

Greer J said: ‘The expression ‘dedicated to public use’ is used in reference to land which itself remains the property of the owner in fee of the soil, but for some definite purposes is dedicated to public use.’

Judges:

Greer J

Citations:

[1922] 2 KB 145

Jurisdiction:

England and Wales

Cited by:

Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 03 July 2022; Ref: scu.214612

Thames Water Utilities Limited v Marcic: CA 7 Feb 2002

The claimant owned land over which sewage and other water had spilled from the appellant’s sewage works. His claim having been dismissed under Rylands v Fletcher, and there being no statutory means of obtaining compensation, the judge was asked to say that his human rights had been infringed insofar as his right to peaceful enjoyment of his possessions had been infringed. Whilst it would be reasonably possible to prevent flooding of the claimant’s property, protecting all similarly threatened properties would cost impractically large sums.
Held: The test for nuisance and negligence had become similar until the point where a positive act to prevent harm was required rather than acting in such a way as to avoid causing harm. There is a clear common law duty to do whatever is reasonable to prevent hazards on the land, however they might arise, from causing damage to a neighbour. The appellant provided the system of sewers for profit, and had not demonstrated that it was not reasonably practicable for them to abate the nuisance.

Judges:

Lord Phillips MR, Lord Justice Aldous, And, Lord Justice Ward

Citations:

Times 14-Feb-2002, Gazette 21-Mar-2002, [2002] EWCA Civ 65, [2002] QB 929, [2002] 2 All ER 55

Links:

Bailii

Statutes:

Water Industry Act 1991 94(1), European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .
Cited – Goldman v Hargrave PC 13-Jun-1966
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would . .
Cited – Leakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
Appeal from – Marcic v Thames Water Utilities Ltd TCC 10-Jul-2001
. .
Appeal from – Marcic v Thames Water Utilities Ltd TCC 14-May-2001
. .

Cited by:

Cited – Dennis and Dennis v Ministry of Defence QBD 16-Apr-2003
The applicants owned a substantial property near an airbase. They complained that changes in the patterns of flying by the respondents were a nuisance and sought damages. Walcot Hall was subjected to very high noise levels from military aircraft. . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Appeal from – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Utilities, Land, Nuisance, Human Rights, Negligence

Updated: 03 July 2022; Ref: scu.167598

Earl of Kintore v Countess-Dowager of Kintore and Others: HL 29 Jun 1886

Parent and Child – Legitim – Discharge of Legitim – Antenuptial Contract of Father – Heir-Apparent – Aberdeen Act (5 Geo. IV. c. 87) – Entail Amendment Act 1848 (11 and 12 Vict. c. 36).
By antenuptial contract of marriage an heir of entail in possession bound himself and the heirs of entail who should succeed him in the entailed estates to pay to the child or children of the marriage, other than and excluding the heir who should succeed to him in the entailed estates, certain provisions. Tutors and curators were appointed to such of the children of the intended marriage as should be in pupillarity or minority at the husband’s death, and they were directed to maintain and educate suitably the heir who should succeed him, and keep up an establishment for him till he reached majority; ‘which provisions before conceived in favour of the children of this marriage are hereby declared to be in full satisfaction to them of all bairns’ part of gear, legitim, portion natural, security,’ and co. The eldest son of the marriage succeeded under the entail and also claimed legitim. Held ( aff. judgment of First Division) that the marriage-contract contained no provision for him in lieu of legitim, and therefore that he was not excluded by the contract therefrom. Held, further, that the provisions for children made by the father in his marriage-contract under the Aberdeen Act not being or being capable of being (without the father’s consent) available to the eldest son, they were not effectual to confer an interest in him under the contract in consideration of which legitim could be excluded; and (2) that assuming that under the Entail Amendment Act 1848 the father could have disentailed the estates, a right to share in the marriage-contract fund provided to children would not thereby have been conferred upon the heir, and therefore that in no view was anything provided under the contract in his favour in discharge of legitim.

Judges:

Lord Chancellor Herschell, Lords Blackburn and Watson

Citations:

[1886] UKHL 877, 23 SLR 877

Links:

Bailii

Jurisdiction:

Scotland

Land, Family

Updated: 03 July 2022; Ref: scu.637734

Revenue and Customs v Fortyseven Park Street Ltd: CA 17 May 2019

Treatment for value added tax VAT purposes of sums that the respondent, Fortyseven Park Street Limited, has received from selling ‘Fractional Interests’ relating to a property at 47 Park Street in London’s Mayfair.

Judges:

Lord Justice Newey

Citations:

[2019] EWCA Civ 849

Links:

Bailii

Jurisdiction:

England and Wales

VAT, Land

Updated: 03 July 2022; Ref: scu.637522

Lord Blantyre v Clyde Navigation Trustees: HL 7 Apr 1881

River – Operations on Alveus – Clyde Navigation Consolidation Act 1858, secs. 76 and 84
Held (aff: judgment of the Court of Session) that a proprietor whose right of property in the foreshore had been judicially determined, was yet not entitled, looking to the powers given to the Clyde Navigation Trustees by Acts of Parliament, to interdict them from dredging on the foreshore, all questions as to claims for compensation being reserved.

Citations:

[1881] UKHL 459, 18 SLR 459

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 03 July 2022; Ref: scu.636794