Category: Land

Meftah v Lloyds TSB Bank: ChD 2001

Receivers of property under charge are not obliged before sale to spend money on repairs.

Judges:

Lawrence J

Citations:

[2001] 2 All ER (Comm) 741

Jurisdiction:

England and Wales

Cited by:

Cited – Lloyds Bank Plc and others v Cassidy CA 1-Dec-2004
The defendant sought leave to appeal against orders for possession. The trial had been transcribed by the claimant. At the start of the application, a copy of the transcript was given to the judge but not the defendant despite his application.
Lists of cited by and citing cases may be incomplete.

Land, insolvency

Updated: 09 May 2022; Ref: scu.221430

VT Engineering Limited v Richard Barland and Co Limited: ChD 1968

The court was asked whether a right of way ‘at all times and for all purposes’ over a roadway included an ancillary right to lateral and vertical ‘swing space’ in the course of loading and unloading in the exercise of the principal right.
Held: The submission failed. In descriptions of rights of way there was to be implied ‘some degree of tolerance’. Under the ordinary law of easements, the grant of an easement implies also the grant of ‘swing space’
Megarry J said: ‘Mr Mottershead went further; he claimed the right to the use of a sufficiency of space in which to swing or otherwise manoeuvre the goods that are being loaded and unloaded. During the argument I ventured to call this right by the convenient but inelegant name of a right to ‘swing space,’ though I readily acknowledge that this has nothing save brevity to commend it. Mr. Mottershead could cite no authority to support him in this claim, but rested it on implication.
This is a far-reaching contention. It seems to me that the alleged right ought to be analysed into the two sub-heads of lateral swing space and vertical swing space, the latter embracing only what is vertically above any part of the way, and the former extending horizontally beyond the vertical lines bounding the way. Let me take lateral swing space first, and assume as an example the grant of a right of way over a roadway eight feet wide. Let me further assume that there is no wall or hedge on either side. If there is an implied right of lateral swing space, the servient owner can never erect any wall or building abutting on the roadway lest it interfere with the dominant owner’s rights. The dominant owner is, on this view, entitled not only to ingress and egress over the eight feet road, and to occupy it with stationary vehicles being loaded or unloaded, but also to have a strip on either side of the roadway, of indefinite dimensions which depend on the size and *895 manoeuvrability of the goods which he or some successor in title of his may later choose to receive on the dominant tenement or despatch from it, kept free from any obstruction which might hinder the loading or unloading.
I can well see that on the grant of a right of way the grantor must accept that over the way granted he cannot thereafter exercise rights which materially interfere with the enjoyment of the easement. It may perhaps be that he must allow some degree of tolerance for wide loads, so that he cannot fence or build up to the very edge of the way granted, but must leave a freeboard of a foot or two, particularly if there are bends in the way. But that is very different from saying that the grant of a way may in effect sterilise a strip of land of indefinite depth on each side of the way, depending on the loads and methods of loading from time to time adopted. This seems to me to go far beyond any necessary or reasonable expectation or implication; and quite apart from the absence of authority on the point, it seems to me that such a right would or might subject the grantor to a quite unjustifiable burden. I accordingly reject such a claim.’

Judges:

Megarry J

Citations:

[1968] 19 PandCR 890

Cited by:

Cited – Well Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
Cited – Well Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
Cited – B and Q Plc v Liverpool and Lancashire Properties Ltd ChD 26-Jul-2000
The dominant owner wished to deal with delivery vehicles in a manner where they were left parked awaiting emptying. The servient owner (a lessee) wanted to construct buildings over a large part of the land. The servient owner objected.
Held: . .
Cited – Oliver v Symons CA 15-Mar-2012
The parties disputed the extent of a right of way, the claimant appealing against the rejection of his claim for ‘swing space’ alongside the right of way.
Held: The appeal failed. Elias LJ said that the ‘argument for swing space fails. That is . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.220696

Thomas v Thomas: 1835

A unity of possession of the land in and of the land in qua an easement exists, does not extinguish but only suspends the easement, where the party is seised in fee of the one parcel , and possessed for the residue of a term of the other. – Where a party has a right to have the droppings of rain fall from his wall upon the premises of another, right is not destroyed by his raising the height of the wall.
Re-entry will not be construed as tortious if it can be construed rightful. Alderson B said: ‘If I am seised of freehold premises, and possessed of leasehold premises adjoining, and there has formerly been an easement enjoyed by the occupiers of one as against the occupiers of the other, while the premises are in my hands, the easement is necessarily suspended, it is not extinguished, because there is no unity of seisin; and if I part with the premises, the right, not being extinguished, will revive.’

Judges:

Alderson, Gurney BB, Lord Abinger CB

Citations:

[1835] 2 Cr M and R 34, (1855) 69 ER 701, [1835] EngR 323, (1835) 2 CrM and R 34, (1835) 150 ER 15

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Approved – Corea v Appuhamy PC 14-Dec-1911
(Ceylon) The coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title.
Tenants in common cannot assert a . .
Mentioned – Rother District Investments Limited v Corke, Orr, Richards ChD 20-Jan-2004
The court was asked as to the legal effect of a purported peaceable re-entry and forfeiture of a lease by a purchaser of the reversion prior to registration of the purchaser as proprietor at HM Land Registry.
Held: The appeal was denied. What . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.199774

Lloyds Bank plc v Byrne and Byrne: 1993

A husband held the matrimonial home on trust for sale for himself and his wife in equal shares. The couple lived in the house. The husband and another man were in business with through a limited company, and guaranteed the its debts to the plaintiff, who obtained a default judgment against the husband under the guarantee and then a charging order absolute against the husband’s interest in the matrimonial home. The bank obtained an order that the house be sold under s. 30. The wife appealed saying that the bank’s application under s. 30 should have been dismissed or, if an order for sale should have been made, it should have been subject to conditions favourable to her.
Held: The appeal failed. ‘The bank are not claiming under Mr Byrne, they are asserting rights over his share in the proceeds of sale. Furthermore it appears to me that to accept the contention would be to defeat the whole purpose of s. 30 of the Law of Property Act, which is to enable the court as a matter of discretion to do what is equitable, fair and just. In my judgment this is wholly a matter of discretion and there is no difference in principle between the case of a trustee in bankruptcy and that of a chargee. All the circumstances must be weighed and the court must consider whose voice should in equity prevail.’ The court did not accept that as the husband could not obtain an order against his wife, the bank could be in no better position as it claimed under him.

Judges:

Parker LJ

Citations:

[1993] 1 FLR 369

Statutes:

Law of Property Act 1925 30

Cited by:

Cited – Bank of Baroda v Dhillon and Dhillon CA 17-Oct-1997
A property had been bought in the husband’s name. The wife made financial contributions to repayment of the charge, and thereby acquired an interest in it. The property was later charged by the paper owner to the claimant, who sought possession . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.197884

Osborne v Bradley: ChD 1903

The plaintiff had sold land to the purchaser, subject to covenants restricting the development on the land to private dwellings and prohibiting manufacture, trade or business on the land. The purchaser built two houses and subsequently sold the land and houses to the defendant, subject to the covenants. The defendant lodged plans with the local council to convert the houses into shops.The plaintiff brought an action on a covenant against the purchaser of land subject to a negative covenant. The question arose as to whether the purchaser was liable to the owner of the land who had the benefit of the covenant. This depended on whether or not the covenant was entered into as part of a building scheme. The covenant contained a provision under which the original vendor reserved the right to vary or waive the conditions with regard to unsold lots.
Held: The evidence did not establish that the land was part of a building scheme when sold. As to the provision relating to waiver, Farwell J said: ‘The mere fact that the vendor has reserved to himself the right to vary the conditions as regards unsold property might not by itself be sufficient to prevent the existence of a scheme in respect of the plots sold before that period.’ Farwell J did not hold that such a provision was invalid.
A failure by the convenantee to pursue breaches of covenant which were minor or insignificant would not be considered by the court as amounting to acquiescence in ordinary circumstances.

Judges:

Farwell J

Citations:

[1903] 2 Ch 446

Jurisdiction:

England and Wales

Cited by:

Cited – Marquess of Zetland v Driver CA 1939
The vendor was tenant for life of settled land at Redcar. By a 1926 conveyance part was conveyed to a purchaser who covenanted ‘to the intent and so as to bind as far as practicable the said property hereby conveyed into whosesoever hands the same . .
Cited – Elliston v Reacher ChD 1908
The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same . .
Cited – Elliston v Reacher CA 2-Jan-1908
Lord Cozens Hardy MR said: ‘It is laid down in Co. Litt. 230b, that a man who takes the benefit of a deed, is bound by a condition contained in it, though he does not execute it.’
Farwell J referred to Osborne v Bradley, and said: ‘With . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 09 May 2022; Ref: scu.196684

Taylor v Hamer: CA 2002

The parties were buyers and sellers of land. The seller’s husband removed a large area of flagstones after the buyer’s first inspection but before exchange. He seeded over the land so that, on a second inspection by the buyer’s solicitor, the removal was not obvious. The solicitor, did not appreciate that the flagstones had been removed, but, seeing a pile of flagstones asked about them. He was told (deceitfully) that these had not been taken from the property, and that they were not included in the sale, but were to be removed by the seller, as in fact happened. The contract contained a deemed inspection clause and Standard Condition 3.2.1. An incomplete schedule of fixtures and fittings to be included or excluded did not mention the flagstones. Standard Condition 5.1.1 referred to the ‘physical state . . at the date of the contract’). An entire agreement clause precluded reliance on statements or representations other than those contained in written replies to preliminary inquiries. The parties disputed the effect of the clause in relation to replies to preliminary inquiries.
Held: (By majority) The buyer had a contractual claim. The reference to the property being sold was to be interpreted to refer to the property with the fixtures which the buyer saw on his inspection, or reasonably believed to be included in his sale when he made his initial offer.
Sedley LJ said: ‘In the manner seminally described by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society . . the meaning to be ascribed to ‘the Property’ is the meaning it would be given by a reasonable person who knows what the parties knew at the time they contracted . . It includes the facts that the claimant had been shown premises which included the flagged dog garden and that he had not been told before contract that this was no longer part of the realty. In my judgment such facts are not within the exclusion zone of prior negotiation and subjective intent described in Lord Hoffmann’s third principle . . They are the normal means by which the subject matter of any offer and acceptance is identified.
This would probably be enough . . to make the flagstones part of ‘the Property’ for which the parties went on to exchange contracts. But here, additionally, the vendor deliberately induced the buyer, through his solicitor, to believe that there had been no such alteration. To Arden LJ’s question: why tell this lie? Ms Hargreaves [Counsel for the Seller] had no answer.
Against this background of fact any reasonable person, in my judgment, would have understood the property which was being bid for and contracted for to include the flagstones in the dog garden. The case falls outside the caveat emptor paradigm . . because the vendor, by his conduct in inviting an offer for the property as shown to the purchaser and without any explicit subtraction from it, represented that it was to include the flagged garden.
In everyday house purchases people are entitled to be confident that, unless some different agreement is reached and recorded, the property which is to pass includes its fixtures. If before the sale takes place the seller has given the buyer no reason to think that the fixtures (at least those the buyer knows of) are not part of the premises for which an offer is being invited, simple morality says that he cannot remove them without telling the buyer that they are no longer for sale. To fail to do so is to invite a bid for something which is no longer what the bidder still reasonably believes it to be; not to put too fine a point on it, it is cheating. Surreptitiously removing fixtures does not mean that the seller is stealing them, for they are his. It means that if the sale goes through he will be failing to convey what the eventual buyer has become entitled to have conveyed.’

Judges:

Arden, Sedley LJJ

Citations:

[2002] EWCA Civ 1130, [2003] 1 EGLR 103

Jurisdiction:

England and Wales

Cited by:

Cited – Sykes and Another v Taylor-Rose and Another CA 27-Feb-2004
The appellants purchased a property from the respondents. The house had been the site of a partiularly horrendous murder in 1980, but the respondents did not disclose the fact.
Held: The doctrine of caveat emptor still had application. As . .
Cited – Wickens v Cheval Property Developments Ltd ChD 8-Sep-2010
The buyer of land sought a reduction in the purchase price complaining of the removal of several items (worth possibly andpound;300,000) by intruders after exchange. The seller said that the fixtures had been excluded under the contract.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 09 May 2022; Ref: scu.194793

Euro-Diam: CA 1900

The court must bear in mind when reaching a decision, the ‘public conscience’ element, weighing, or balancing, the adverse consequences of granting relief against the adverse consequences of refusing relief. The ultimate decision calls for a value judgment.

Judges:

Kerr LJ

Citations:

[1900] 1 QB 1

Jurisdiction:

England and Wales

Cited by:

Cited – Tinsley v Milligan CA 1992
The court considered the defence of illegal user to a claim to have established an easement by prescription: ‘These authorities seem to me to establish that when applying the ‘ex turpi causa’ maxim in a case in which a defence of illegality has been . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.193596

Carington v Wycombe Railway Co: 1868

Citations:

(1868) 3 Ch App 377

Statutes:

Land Clauses (Consolidation) Act 1845

Cited by:

Cited – Tiffany Investments Ltd and Another v Bircham and Co Nominees (No 2) Limited and others CA 4-Dec-2003
The tenancy was a long lease at a low rent under the 1954 Act, and so had continuing protection under the 1977 Act whilst occupied by the original tenant. The lease was assigned and registered. It had been conditional upon an application to purchase . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.192030

Abercromby v Fermoy Town Commissioners: 1900

A right of common over land can take the form of a right for recreation to promenade (or wander) over land and every part of it.

Citations:

[1900] IR 302

Jurisdiction:

England and Wales

Cited by:

Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.192092

Rogerson v Bolsover District Council: CA 26 Feb 2019

Appeal:
i) Whether a landlord can be liable under section 4 of the Defective Premises Act 1972 by reason of a defect which would have been discovered if the landlord had implemented a system of regular inspection. HHJ Owen held that a landlord had no duty to inspect;
ii) If there was a duty to inspect was it satisfied by a purely visual inspection or should the landlord had applied a pressure test, as held by the DDJ? HHJ Owen held that there was no duty beyond inspecting patent defects.

Citations:

[2019] EWCA Civ 226

Links:

Bailii

Jurisdiction:

England and Wales

Land, Personal Injury, Landlord and Tenant

Updated: 09 May 2022; Ref: scu.634075

Poole v Huskisson: 1843

At common law a public right of way cannot be limited iin its use for a particular group of people (here the members of a parish).

Citations:

(1843) 11 M and W 827

Jurisdiction:

England and Wales

Cited by:

Cited – Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs and Another Admn 19-Jul-2012
The court was asked: ‘can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?’ A path had been registered over part of te claimant’s land, but with no . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.591420

Bailey v Jamieson: CCP 1875

There was a public highway, a footpath from Sheepcote Rectory to the village of Bothal, in Northumberland. However, as a result of stopping up orders properly made by the local quarter sessions in respect of other highways, there ceased to be any access to the footpath from a highway, or any other land to which the public had access. That the earlier stopping up orders had left this isolated footpath appears to have been an error: if a stopping up order had been sought in respect of this footpath also, it seems inevitable that it would have been granted. However, it was not sought. The evidence was that the defendants had no permission from any adjacent landowners to be on their land; so that they could only access the footpath by trespassing on the adjacent land to get to it. The defendants, accused of trespass, relied upon the common law maxim, ‘Once a highway, always a highway’. They submitted that the public footpath could only be extinguished by a stopping up order or other device provided by statute.
Held: The court discharged the rule: ‘A way ceases to be a ‘public highway’ where the access to it at either end has become impossible by reason of ways leading to it having been legally stopped up.’
Lord Coleridge CJ said: ‘It is necessary, therefore, to determine whether or not [the footpath] remains a highway. I am of opinion that it does not. Its character of a public highway is altogether gone.’
Denman J said that despite the dictum, ‘Once a highway, always a highway’: ‘I think we are compelled to hold that this is a case where that which formerly was a highway, but which, though it has been not been stopped by statutory process, has, by reason of legal acts at either end of it, ceased to be a place which the Queen’s subjects can have access, loses its character of a highway.’
Lindley J agreed, adding: ‘[The plaintiff’s] argument amounts in substance to this, that there cannot be a public highway public access to which has lawfully been stopped at either end. I agree to that.’

Judges:

Lord Coleridge CJ, Denman and Lindley JJ

Citations:

(1875-76) LR 1 CPD 329

Jurisdiction:

England and Wales

Cited by:

Cited – Great Central Railway Company v Balby-with-Hexthorpe Urban District Council 1912
The court was asked to settle the status of various sections of a highway. One issue was whether the extinguishment of public rights of way over one section (the yellow section) resulted in the extinguishment of such rights in another section (the . .
Cited – Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs and Another Admn 19-Jul-2012
The court was asked: ‘can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?’ A path had been registered over part of te claimant’s land, but with no . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.591421

Great Central Railway Company v Balby-with-Hexthorpe Urban District Council: 1912

The court was asked to settle the status of various sections of a highway. One issue was whether the extinguishment of public rights of way over one section (the yellow section) resulted in the extinguishment of such rights in another section (the red section).
Held: Joyce J said: ‘[The railway company] say reasonably, I think, by reason of the case of Bailey v Jamieson, that if both ends of a piece of land, which is subject to a public right of way, are closed, and there is no access to the intervening piece for the public, then the latter as a matter of fact is also closed, although perhaps, technically there may still be some public legal rights existing in respect of it.’ and ‘I think, however, that if the rights of way are extinguished over the yellow, then, on the authority of this case of Bailey v Jamieson, the railway company would have established that the public rights over the red and yellow were gone.’

Judges:

Joyce J

Citations:

[1912] 2 ChD 110

Jurisdiction:

England and Wales

Citing:

Cited – Bailey v Jamieson CCP 1875
There was a public highway, a footpath from Sheepcote Rectory to the village of Bothal, in Northumberland. However, as a result of stopping up orders properly made by the local quarter sessions in respect of other highways, there ceased to be any . .

Cited by:

Not applied – Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs and Another Admn 19-Jul-2012
The court was asked: ‘can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?’ A path had been registered over part of te claimant’s land, but with no . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.591422

Carr v Lambert: 1866

Levancy and couchancy is a ‘measure of the capacity of the land to keep cattle out of artificial or natural produce grown within its limits’.

Citations:

(1866) 1 Ex 168

Jurisdiction:

England and Wales

Cited by:

Cited – Bettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.191140

White v Taylor (No 2): ChD 1969

The alienation of grazing rights for a fixed number of beasts cannot prejudice the residual interest of the owner of the servient common. Whoever the grazing right belongs to, the number of beasts that can be grazed upon the common pursuant to the right will remain constant.
Buckley J said: ‘To make good a prescriptive claim in this case it is not necessary for the claimant to establish that he and his predecessors have exercised the right claimed continuously. This is a profit of a kind that, of its nature, would only be used intermittently. Flocks would not, for instance, be on the down at lambing time, or for 24 hours of the day, or very possibly on every day of the week or all round the year. But the user must be shown to have been of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right, and of a right of the measure of the right claimed.’

Judges:

Buckley J

Citations:

[1969] 1 Ch 160

Jurisdiction:

England and Wales

Citing:

Cited – Richards v Squibb 1698
A right to depasture a fixed number of beasts differs from a right for beasts levant and couchant. It is not confined to enjoyment by beasts levant and couchant on the dominant land and may be enjoyed by beasts that do not come from the tenement to . .
Cited – Drury v Kent 1603
‘he could not grant it over, for he hath it quasi sub modo viz. for the beasts levant and couchant; . . but common appurtenant for beasts certain may be granted over.’ . .
Cited – Daniel v Hanslip 1672
‘if a man hath common appurtenant to a messuage and land for certain number of beasts, he may alien the same; aliter if it be common for all his beasts levant and couchant upon the land, he cannot by his alienation sever that from the land.’ It was . .
Cited – Bunn v Channen 1813
A right of depasture may be aliened so as to become a right in gross, severed from the property of the alienor. . .

Cited by:

Cited – Bettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.191143

Daniel v Hanslip: 1672

‘if a man hath common appurtenant to a messuage and land for certain number of beasts, he may alien the same; aliter if it be common for all his beasts levant and couchant upon the land, he cannot by his alienation sever that from the land.’ It was held that: ‘ . . a common appurtenant may be severed and granted, because nothing restrains it to cattle used upon the land also if it be for cattle levant and couchant it may be granted; with the land and not without it.’

Judges:

Hale CJ

Citations:

(1672) 2 Lev 67, 3 Keble 66

Jurisdiction:

England and Wales

Cited by:

Cited – White v Taylor (No 2) ChD 1969
The alienation of grazing rights for a fixed number of beasts cannot prejudice the residual interest of the owner of the servient common. Whoever the grazing right belongs to, the number of beasts that can be grazed upon the common pursuant to the . .
Cited – Bettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.191142

Baylis v Tyssen-Amhurst: 1877

In order to acquire by prescription a right of pasture appurtenant to land, there had to be some relation between the enjoyment of the right and the enjoyment of the land in question. The number of animals for the pasturing of which the right was claimed was not, however, a fixed and certain number nor a number limited by levancy and couchancy. It was said to be a number dependent on the value of the dominant land relative to the value of the other tenements in respect of which pasturage rights were being claimed ‘according to a scale fixed by the homage of the manor’.

Judges:

Sir George Jessel MR

Citations:

[1877] 6 Ch 500

Jurisdiction:

England and Wales

Cited by:

Cited – Bettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.191146

Regina v The Commissioners of the Thames and Isis: 1837

In 1833 Lord Boston complained to the Commissioners about the construction of the Cut above Hedsor Water on the Thames. The Commissioners did not act on the complaint. Accordingly Lord Boston claimed compensation from the Commissioners for the loss of income from the towing path on his estate occasioned by the Cut. The Commissioners defended the claim, but the Buckinghamshire Court of Quarter Sessions awarded Lord Boston andpound;1,000 compensation in respect of loss of income from his towpath, andpound;120 in respect of money expended on his stables and andpound;200 as costs. When the Commissioners did not pay, Lord Boston applied in the King’s Bench for an order of mandamus and in 1836 such order was granted.

Citations:

(1837) Law Reports Journal, Vol xv pp 17-23, (1837) 15 LJ Rep 17

Cited by:

Cited – Rowland v The Environment Agency ChD 19-Dec-2002
Public rights of Navigation have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The claimant sought a declaration that rights of navigation over that . .
Cited – Rowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
Lists of cited by and citing cases may be incomplete.

Transport, Land

Updated: 09 May 2022; Ref: scu.187528

Carr-Saunders v Dick McNeill Associates: 1986

The claim was for interference with the plaintiff’s right to light.
Held: There is a need to approach infringements of easements of light with flexibility. The plaintiff’s subjective views as to the loss of light were not to the point. When deciding upon an appropriate award in relation to the notional ‘reasonable sum’ or ‘fair figure’ for the defendant to pay, regard was to be had to the bargaining position of the parties in order to arrive at a price which would have been likely to have been negotiated as the reasonable price of a licence for the action taken by the defendant which constituted the invasion of the claimant’s rights. As between claims in contract or in tort, there is no reason for any difference of approach when awarding damages in respect of wrongful interference by a defendant with the use and enjoyment of the claimant’s land. The court having been shown daylight contour plans by both parties’ expert witnesses: ‘the conventional fifty-fifty rule by which a room may be regarded as adequately lit for all ordinary purposes if 50% or more of its area receives not less than one lumen of light at table level.’ When dismissing an argument that recently erected internal walls should be disregarded when determining whether there had been an actionable infringement: ‘I reject this approach. It applies the fifty-fifty rule rigidly as if it were a rule of law, and not (as it is) as merely a useful guide to be adopted or discarded according to the circumstances. The fifty-fifty rule is not, in my judgment, to be applied without any regard to the shape and size of the room or the disposition of the light within the room to which it is applied.’

Judges:

Millett J

Citations:

[1986] 2 All ER 888, [1986] 1 WLR 922

Citing:

Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .

Cited by:

Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Cited – Severn Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – 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 – 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, Damages

Updated: 09 May 2022; Ref: scu.186373

Maltbridge Island Management Company v Secretary of State for Environment and Hertfordshire County Council: Admn 31 Jul 1998

Application to set aside addition of land to definitive map of public rights of way as byway open to all traffic (BOAT).
Held: The force of the evidence of private conveyancing documents may outweigh the value of public documents such as a tithe map or a Finance Act assessment which were not prepared for the express purpose of recording public rights of way. Sullivan J quashed a modification order which had been confirmed by the inspector, saying: ‘It is a matter of considerable regret that I do not have power under the 1981 Act to remit the decision [sc of the inspector] for reconsideration. My only power is to quash the order. [Counsel for the Secretary of State] did not submit that I should decline to quash the order in the exercise of my discretion if I concluded that the Secretary of State had erred in law on either of the two grounds that I have identified. It follows that the order must be quashed and this lengthy process must be begun afresh.’

Judges:

Sullivan J

Citations:

[1998] EWHC Admin 820

Statutes:

Wildlife and Countryside Act 1981

Jurisdiction:

England and Wales

Cited by:

Cited – Jones v Welsh Assembly Government Admn 15-Dec-2008
The County Council had made an order under section 53, establishing a footpath over the claimant’s land. The land owner now appealed. The court had previously quashed the inspector’s decision on the basis that he had not allowed for the interruption . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.138941

Regina v Suffolk County Council Ex Parte Steed and Steed: Admn 1995

Judicial review was sought of the Council’s decision to refuse to register a park as a Town or Village Green.
Held: Carnwath J looked at the procedure to be followed by a council receiving an application for registration of commons right: ‘it is accepted that if the matter has to be reconsidered by the Council on its merits, then some form of oral hearing will in practice be necessary. Although there is no provision for such a procedure in the regulations, I understand that authorities do sometimes organise non-statutory hearings, where the written submissions disclose significant conflicts of evidence. This is appropriate.’ and ‘Some oral procedure seems essential if a fair view is to be reached where conflicting recollections need to be reconciled, even if the absence of statutory powers makes it a less than ideal procedure’. As to the effect of section 19(2): ‘whatever rights may have been thought to exist by virtue of actions or events before 1970, they ceased to have effect. Thereafter the land was deemed not to be a ‘town or village green’, within any of the three parts of the definition’. User ‘as of right’ meant that the people indulging in sports and pastimes on the land must have believed that they were exercising a right claimed by the inhabitants of a particular locality. The court in exercise of its jurisdiction under Section 14 is not confined to remedying errors of law, but may consider the overall merits of the amendment.
The users had to emanate from a locality by which was meant more than a place or geographical area: ‘In the present statutory context, I do not think that a piece of land used only by the inhabitants of two or three streets would naturally be regarded as a ‘town or village green’. The word ‘locality’ in the definition of village green should be interpreted with regard to its context.
Such an approach is also consistent with that of Kekewich J. in Edwards v. Jenkins, where the issue was whether a green could exist for the benefit of three parishes. He held that it could not. He referred to the authorities which showed that the use must be that of the inhabitants of a ‘district’, and continued:
‘I take it that the judges have used the word ‘district’ as meaning some division of the county defined and known to the law, as a parish is; and that I should be extending their meaning if I were to say that a custom of this kind could be claimed as regards several parishes.
Although the actual decision has been doubted (see New Windsor case,) the words underlined fairly reflect the earlier cases there cited, and indeed the concept of a ‘local law’ as explained in Hammerton v. Honey. The word ‘locality’ in the Act seems intended to bear the same connotation as the word ‘district’ as used in such cases’.

Judges:

Carnwath J

Citations:

(1995) 70 P and CR 487

Statutes:

Commons Registration Act 1965 1(2)(a) 14 22

Jurisdiction:

England and Wales

Citing:

Cited – Secretary of State for Education and Science v Tameside Metropolitan Borough Council HL 21-Oct-1976
An authority investigating an application for registration of rights of common over land has an implied duty to ‘take reasonable steps to acquaint (itself) with the relevant information.’ A mere factual mistake has become a ground of judicial . .

Cited by:

Appeal from – Regina v Suffolk County Council Ex Parte Steed and Another CA 2-Aug-1996
Customary rights over land were not defeated by failure to register as common. ‘As of right’ meant that the right must be exercised in the belief that it is a right enjoyed by the inhabitants of the village to the exclusion of all other people. ‘it . .
Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Preferred – Regina v Norfolk County Council ex parte Perry Admn 19-Dec-1996
The period of twenty years required to establish a common under the Act was the period up to the date of the application. . .
Cited – Oxfordshire County Council v Oxford City Council and Another CA 24-Feb-2004
Application was made to register the ‘trap grounds’ as a village green.
Held: Carnwath LJ: ‘The 1965 Act created no new legal status, and no new rights or liabilities other than those resulting from the proper interpretation of section 10. . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Betterment Properties (Weymouth) Ltd v Dorset County Council ChD 2-Mar-2007
The company sought an order removing some 46 acres of land from designation as a village green. The claimant sought the amendment of the register. The parties disputed what evidence beyond that available to the committee making the decision should . .
Cited – Leeds Group Plc v Leeds City Council ChD 21-Apr-2010
Application had been made to the defendant to register as a common land belonging in part to the claimant and in part to the defendant. The claimant objected to the registration. The defendant did not. . .
Cited – Paddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
‘The principal issue in these two appeals relates to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for . .
Lists of cited by and citing cases may be incomplete.

Land, Local Government

Updated: 09 May 2022; Ref: scu.192096

Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another: SC 25 Feb 2015

The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised by the appeal are, potentially at least, far more wide-ranging. Those points are (i) the nature of the public’s rights over coastal beaches, (ii) whether byelaws can give rise to an implied consent to the public to use land, and (iii) the interrelationship of the statutory law relating to village greens and other duties imposed by statute.’
Held: The appeal was allowed on both the second and third ground (Lord Carnwath concurring save as to the need for a decision on the third argument). The Commons Act 2006 could not operate in respect of the beach by reason of statutory incompatibility. The duty under section 15 of the Commons Act 2006 did not extend to an area held under the specific statutes relating to the Newhaven Harbour.

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Sumption, Lord Carnwath, Lord Hodge

Citations:

[2015] UKSC 7, [2015] BLGR 232, [2015] AC 1547, [2015] 2 All ER 991, [2015] 2 WLR 601, [2015] WLR(D) 109, UKSC 2013/0102

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video

Statutes:

Commons Act 2006, The Newhaven Harbour and Ouse Lower Navigation Act 1847, Newhaven Harbour Improvement Act 1878

Jurisdiction:

England and Wales

Citing:

Cited – Blundell v Catterall 7-Nov-1821
The defendant used a beach ‘between the high-water mark and the low-water mark of the River Mersey’ at Great Crosby in Lancashire for the purpose of providing bathing facilities (including bathing machines and carriages for members of the public who . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
At first instance – Newhaven Port and Properties Ltd v East Sussex County Council and Others Admn 21-Mar-2012
The company objected to the proposed registration by the defendant Council of a strip of beach land as a common. They said that it was not a ‘town or village green’ within the 2006 Act.
Held: The court rejected all grounds of objection, save . .
Appeal from – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another CA 27-Mar-2013
The port challenged the proposed registration of part of the beach at Newhaven as a village green, saying that the result would be inconsistent with their performance of their statutory duties. . .
At CA (2) – Newhaven Port and Properties Ltd, Regina (on The Application of) v Secretary of State for The Environment Food and Rural Affairs CA 14-Jun-2013
. .
Cited – Mace v Philcox 25-Jan-1864
The ‘sea-beach or foreshore throughout the whole length of the borough of Hastings, including the locus in quo’ had been used ‘from time immemorial’ by the public ‘as a place of public resort’, subject only to the corporation’s statutory powers to . .
Cited – Llandudno Urban District Council v Woods 1899
A clergyman set up a pulpit and was holding services and delivering addresses on the seashore.
Held: An injunction was refused. The court discouraged actions for trespass on public highways where the inteference was trivial. In this case, . .
Cited – Brinckman v Matley 1904
Members of the public did not have the right to go on the foreshore for the purpose of bathing or getting access to the sea for bathing. . .
Cited – Blount v Layard 1981
Public use rights to navigate or (less commonly) to fish, where secured by statute or user, were not inconsistent with private ownership of the land beneath the water.
Bowen LJ said: ‘that nothing worse can happen in a free country than to . .
Cited – Behrens v Richards 1905
Buckley J refused an injunction sought by the owner of land leading to the foreshore against fishermen who used the land to gain access to the foreshore, although he held that the fishermen had established no public right of way by long user. . .
Cited – Attorney-General v Antrobus ChD 1905
The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
Held: The court rejected a suggestion that . .
Wrong – Jones v Bates CA 1938
The court considered whether there had been an act by the landowner sufficient to amount to a dedication a path as a public right of way. Scott LJ said that actual dedication was ‘often a pure legal fiction [which] put on the affirmant of the public . .
Cited – In re Ellenborough Park CA 15-Nov-1955
Qualifying Characteristics ofr Easement
Parties claimed a public right to wander through the grounds of the park.
Held: No such right could have been granted or was properly claimed. Lord Evershed MR said: ‘There is no doubt, in our judgment, but that Attorney-General v. Antrobus . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – Ayr Harbour Trustees v Oswald 1883
The appellant trustees could not competently preclude themselves from exercising their powers under the Ayr Harbour Act in respect of certain land acquired by them for the purposes of that statute bearing in mind that their discretionary powers were . .
Cited – Mann v Brodie HL 1885
The court analysed the differences between Scottish and English land law with regard to rights acquired by prescription. Although in both countries a right of public way may be acquired by prescription, it was in England never practically necessary . .
Cited – Kruse v Johnson QBD 16-May-1898
The validity of a by-law prohibiting the playing of music in a public place within fifty yards of any dwelling after being requested by a constable or resident of that dwelling to desist was upheld. A private citizen taxed with a criminal charge . .
Cited – McEvoy v Great Northern Railway Co 1900
The acquisition of an easement by prescription did not require a presumption of grant but the incapacity of the owner of the servient tenement to grant excluded prescription. . .
Cited – Magistrates of Edinburgh v North British Railway Co SCS 1904
First Division of the Court of Session – A claim was made that a railway company, which was a statutory undertaker, was obliged to maintain a railway bridge over which a public right of way.
Held: There was insufficient evidence of public user . .
Cited – McGregor v Crieff Co-operative Society Ltd HL 1915
. .
Cited – New Windsor Corporation v Mellor CA 1975
The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval . .
Cited – Regina v Doncaster Metropolitan Borough Council ex parte Braim 1986
The court considered whether the lease of part of Doncaster Common (not registered as such) fell within section 123(2A) of the 1972 Act.
Held: For over a century the public had, as of right, used Doncaster Common for what could be conveniently . .
Cited – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – Housden and Another v The Conservators of Wimbledon and Putney Commons CA 18-Mar-2008
The claimants sought to register a right of way over the common by virtue of use over forty years. The defendants denied that they were able to grant an easement inder the 1871 Act, and that therefore no claim could be laid under prescription.

Cited by:

Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
‘The principal issue in these two appeals relates to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for . .
Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 09 May 2022; Ref: scu.543271

Pound v Ashford Borough Council: ChD 16 May 2003

The claimant bought a house. The fact that it was a listed building was not recorded by the registers. As a consequence, a neighbour was permitted to develop his property.
Held: The failure to register the status gave a right to compensation, but in fact the claimant had suffered no loss. Had the listing been recorded, he would have had to have paid more for the house.

Judges:

Laddie J

Citations:

Times 06-Jun-2003, Gazette 10-Jul-2003

Statutes:

Local Land Charges Act 1975 10(1)

Jurisdiction:

England and Wales

Land, Local Government

Updated: 08 May 2022; Ref: scu.183835

Engell v Fitch: ChD 1869

The lease of land was sold at auction. The conditions of sale provided for possessionto be given on completion. The vendors, mortgagees with the right of sale, were unwilling to incur the expense of recovering possession.
Held: The vendor was under a duty to do everything possible to make good title. The ordinary rule which would limit the damages on the purchase of real property did not apply. The purchaser could recover, the deposit expenses of investigating title, the loss of profit on a resale and cost of conveyance to a sub-vendee. The measure was the difference between the price in the contract and the value of land at the time of the breach.

Citations:

(1869) LR 4 QB 659, 10 BandS 738, 38 LJQB 304, 17 WR 894 ex Ch

Jurisdiction:

England and Wales

Cited by:

Cited – Re Daniel, Daniel v Vassall 1917
The vendor of land who, whether through innocent or wiful default, or with or without bad faith, fails to do everything possible to make good title, makes himself liable in damages for the general losses of the purchaser, including any loss of . .
Lists of cited by and citing cases may be incomplete.

Land, Damages, Contract

Updated: 08 May 2022; Ref: scu.183264

Littledale v Liverpool College: CA 1900

The mere storage of items in a property was insufficient to demonstrate the necessary intention to dispossess the rightful owner. It was a mere exercise of the rights under an easement. Enclosure of land is not necessarily decisive. Lord Lindley MR said: ‘In order to acquire by the Statute of Limitations a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it.’

Judges:

Lord Lindley MR

Citations:

[1900] 1 Ch 19

Jurisdiction:

England and Wales

Cited by:

Disapproved – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – Purbrick v Hackney London Borough Council ChD 26-Jun-2003
The property fell into disrepair. The claimant began to use it for storage, carrying out some refurbishment. He now claimed to own the property by adverse possession.
Held: Littledale was not to be followed unless the facts were strictly on . .
Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 08 May 2022; Ref: scu.182282

Williams Brothers Direct Supply Ltd v Raftery: CA 1957

In a claim for the adverse possession of land, the court is to determine whether the acts of user do or do not amount to dispossession of the owner, the character of the land, the nature of the acts done on it and the intention of the squatter must be considered.

Citations:

[1958] 1 QB 159, [1957] 3 All ER 593

Jurisdiction:

England and Wales

Cited by:

Applied – Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd CA 10-Jul-1974
A strip of land between a holiday camp and a garage had been conveyed as an intended roadway. It had not been fenced. A plot of land was sold by the previous farmer to the garage. Later the plaintiffs bought the farm, excluding the roadway, and the . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 08 May 2022; Ref: scu.182990

Clark v Chandler: CA 28 Jun 2002

The respondent had purchased a property in her sole name, but held the property with her husband. On a breakdown of the marriage, he signed a transfer of the property but the consideration was not settled. After his death, it was argued that the document was ineffective under the 1989 Act because it had not been signed by both parties.
Held: The property was actually held under a joint tenancy. The failure to settle the consideration was enough to defeat its interpretation even as a conditional disposition. Accordingly the joint tenancy had not been severed, and the widow took the entire property by survivorship.

Judges:

Lords Justice Thorpe and Chadwick and Mr Justice Wall

Citations:

Gazette 11-Jul-2002

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2, Law of Property Act 1925 53(1)(c)

Jurisdiction:

England and Wales

Land, Contract, Equity, Wills and Probate

Updated: 08 May 2022; Ref: scu.174322

Leslie Cook, Winifred Cook v Norlands Limited: PC 27 Nov 2001

(Isle of Man) The claimants had been employed for 27 years managing an amusement centre. They had a lower salary, reflecting a promise that the tied accommodation was to be ‘theirs’ after 7 years. After dismissal, the company sought possession, and the claimants sought transfer of the freehold, and asserted a proprietary estoppel. However there was no evidence as to the details of any calculations made, and the claimants had continued to accept low wages long after the house might have been paid for. The claim of a contract was void for uncertainty, and past performance issues did not arise.

Citations:

Appeal No 51 of 2000

Links:

PC, PC

Statutes:

Law Reform (Enforcement of Contracts) Act 1956 (Isle of Man)

Land, Limitation, Employment, Estoppel

Updated: 08 May 2022; Ref: scu.166940

David MacDonald v Geoffrey Myerson and Others: CA 26 Jan 2001

The client obtained mortgages for properties through a fraud as to his identity. He was convicted of fraud, but in the meantime sold one property through the defendant solicitors. The mortgage was redeemed, but the defendant refused to pay the balance proceeds of sale to the claimant, on the basis that his claim was based upon an illegal contract. He asserted that he was simply entitled. The claimant succeeded, since it was admitted that in fact he was the person who had purchased and sold the property. It was for parliament if it wished to create any way of enhancing civil confiscation procedures.

Citations:

Gazette 08-Feb-2001

Jurisdiction:

England and Wales

Legal Aid, Land

Updated: 08 May 2022; Ref: scu.135602

Senbanjo v Brent London Borough Council: ChD 4 Jan 2001

A local authority notice to complete issued by local authority to a tenant acquiring a house under the right to buy provisions, was not valid where one tenant had withdrawn from the purchase application, and the authority had accepted that the other could proceed. The removal of a tenant amounted to a relevant outstanding matter to be resolved, and the remaining tenant should be allowed time to complete transaction. The time should begin to run again. Having accepted the withdrawal of one tenant, the local authority was bound in to allow the many tenants the appropriate in time period to proceed.

Citations:

Times 04-Jan-2001

Statutes:

Housing Act 1985 140 141

Jurisdiction:

England and Wales

Land, Local Government, Housing

Updated: 08 May 2022; Ref: scu.89170

Raja v Lloyds Bank Plc: CA 8 Feb 2001

The claimant’s properties had been sold after repossession by a lender. He claimed damages for the negligent sales at an undervalue. He began the action after six years after the properties were sold, and asserted that the action was based upon the mortgages and that therefore the limitation period was twelve not six years. Assertions that the relationship of mortgagor and mortgagee could give rise to an equitable duty of care were inconsistent with modern authority, and nor could a duty be dependent upon an implied contractual term. The limitation period is six years, and the claim was out of time.

Citations:

Gazette 08-Feb-2001

Jurisdiction:

England and Wales

Land, Limitation, Professional Negligence

Updated: 08 May 2022; Ref: scu.85654

Nationwide Building Society v James Beauchamp (A firm): CA 15 Mar 2001

The defendant solicitors had acted on the purchase of all plots on an estate of land. Rights of way had been reserved over the access roads, but on the insolvency of the development and the roads not being completed the Society asserted that insufficient rights had been reserved to complete the roadway. The background had to be considered. The grants took effect as immediate grants and envisaged rights over the roadways when constructed. The standard of the eventual road had been referred to and accordingly they had the rights to construct it to that standard.

Citations:

Gazette 15-Mar-2001

Jurisdiction:

England and Wales

Land, Professional Negligence

Updated: 08 May 2022; Ref: scu.84225

In Re St Gregory, Offchurch: Coventry: ConC 16 Nov 2000

Where a church was listed as having special architectural or historical interest, there was a presumption against granting a faculty for any change which would adversely affect its character. Here, however, a faculty should be granted for a new Millennium window, since this was not a change adverse to its character, it did not seek to replace a window of a specifically Christian nature, the majority of parishioners appeared to be in favour of the change, and the presumption against change to a listed building had also been rebutted.

Citations:

Times 08-Nov-2000, Gazette 16-Nov-2000

Jurisdiction:

England and Wales

Land, Ecclesiastical

Updated: 08 May 2022; Ref: scu.82198

Carroll v Manek and Another: ChD 18 Aug 1999

A person who acquired title to land by adverse possession took only the title against which his possession was adverse. Where the land was charged, he acquired only the equity of redemption, and where his occupation was of part only, his right was subject to the entire mortgage. If he wanted the land free of it, the entire loan was to be discharged.

Judges:

Judge Hicks, QC

Citations:

Times 18-Aug-1999

Land, Limitation

Updated: 08 May 2022; Ref: scu.78918

Mitchell v Cantrill: CA 1887

In 1864 Sir Humphrey de Trafford granted a 999 year lease of a dwelling house ‘with all rights and appurtenances, legal, used, or reputed, to the said plot of land, except rights, if any, restricting the free use of any adjoining land or the conversion or appropriation at any time thereafter of such land for building or other purposes, obstructive or otherwise.’ A house was built on the adjoining land and this was leased to a Mr Cantrill. Mr Cantrill’s executrix sought to build an extension on the Cantrill land which interfered with light to the plaintiff’s windows. The plaintiff applied for an injunction to restrain the building works. The question was whether the exception of easements was an agreement or consent for the purposes of section 3.
Held: The court eversed the decision of the District Registrar in the Palatine Court, held that the plaintiff was entitled to an injunction. The clause quoted above did not trigger the proviso to s.3.
Cotton LJ said: ‘Now does this clause which I have read bring it within that? In my opinion it does not. It is not an agreement given for the purpose of the enjoyment of the light, but it is simply an exception out of the grant made of appurtenances and rights, so as to prevent the lessee from urging as against the landlord or anybody claiming through him, before a right had been obtained under the statute, that the landlord could not derogate from his own grant either by his building or granting to anybody else a right to build so as to interfere with the Plaintiff’s lights. That is the reasonable, and I think, the only meaning of this clause. It was in effect saying, ‘If I grant this house to you without protecting myself, you will say, if I build up any adjoining house, that is derogating from my own grant; and this clause is to prevent any such contention being made.’ But if independently of the grant the lessee has enjoyed the use of these windows for twenty years he will have the same right as against the adjoining lessee as against a stranger. There was certainly no case referred to in the argument to shew that such claim as is contended for by the Plaintiff exists. But he has the right simply by the effect and operation, not of the grant, but of the statute, and in my opinion he is entitled to enforce that.’
Then there was another point which was suggested, that this must be considered an agreement between the landlord and the lessee, that the landlord should be at liberty if he thought fit to do anything, even although it would operate so as to interfere with his right to light; but I do not think that is the true meaning of it. If you had an express proviso in the contract between the parties that, notwithstanding the grant to the Plaintiff, the landlord should be at liberty to build so as to interfere with his right, that would be another point, but that is not the express form of it, and in my opinion the fair and clear meaning of this clause, construing it without reference to the consequences to one party or the other, is not anything of that sort.’
. .and: ‘The enactment is this, that the right to light is granted where there has been an enjoyment of the access and use of light for twenty years, ‘unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.’ Now does this clause which I have read bring it within that? In my opinion it does not. It is an agreement given for the purpose of the enjoyment of the light, but it is simply an exception out of the grant made of appurtenances and rights, so as to prevent the lessee from urging as against the landlord or anybody claiming through him, before a right had been obtained under the statute, that the landlord could not derogate from his own grant either by his building or granting to anybody else a right to build so as to interfere with the Plaintiff’s lights. . . .If you had an express proviso in the contract between the parties that, notwithstanding the grant to the Plaintiff, the landlord should be at liberty to build so as to interfere with his right, that would be another point, but that is not the express form of it, and in my opinion the fair and clear meaning of this clause, construing it without reference to the consequences to one party or the other, is not anything of that sort.’
Lindley LJ said: ‘The last words in the section mean that when you find an agreement under which the light is enjoyed you must look at that agreement and see what, if any, right to light is expressly given by it. Here the Plaintiff falls under the words of the statute, and it appears to me the contention of the Defendant is not warranted by the words at the end of the section. There is nothing except the grant coupled with the words which Cotton LJ has alluded to, and which obviously are for the purpose of preserving to the lessee a right, until an adverse right is acquired, of doing what he likes with the adjoining property. Under the grant he could deal with that property as he liked within the twenty years, and within that period he might have blocked up all these lights; but after the Plaintiff has enjoyed them without interruption for twenty years the statute confers upon him the right to their future enjoyment. I think therefore this appeal should be allowed.’
Lopes LJ saw the exception as directed only to acquisition by the original grant, rather than by subsequent enjoyment. As to the argument that the exception was a consent or an agreement within section 3 he said ‘for the reasons which have already been given I am clearly of opinion that cannot be brought within those words’.

Judges:

Cotton, Lindley, Lopes LJJ

Citations:

(1887) 37 Ch D 36

Statutes:

Prescription Act 1832 3

Jurisdiction:

England and Wales

Cited by:

Cited – Marlborough (West End) Ltd v Wilks Head and Eve ChD 20-Dec-1996
A dispute between neighbours was settled by a deed with the following clause: ‘IT IS HEREBY AGREED AND DECLARED that notwithstanding that the Building Owners have placed windows in that part of their new buildings which overlook the premises . .
Cited – RHJ Ltd v FT Patten (Holdings) Ltd and Another ChD 13-Jul-2007
The court was asked whether the grant of a lease including a clause reserving: ‘All rights to the access of light or air from the said adjoining property known as Victoria House and Graham House to any of the windows of the demised property.’ . .
Cited – Salvage Wharf Ltd and Another v G and S Brough Ltd CA 29-Jan-2009
The claimant had agreed with a developer in 1999 to allow a development which would have a minor affect on his light. The developer later extended the development, to increase the interference with the right to light, relying on the earlier . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Land

Updated: 08 May 2022; Ref: scu.567939

Sir Harry Peachy v Duke of Somerset: 1720

Lord Macclesfield said: ‘The true ground of relief against penalties is from the original intent of the case, where the penalty is designed only to secure money, and the court gives him all that he expected or desired: but it is quite otherwise in the present case. These penalties or forfeitures were never intended by way of compensation, for there can be none.’

Judges:

Lord Macclesfield

Citations:

(1720) 1 Strange 447

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
See Also – Sir Harry Peachy v Duke of Somerset 16-Jun-1721
A court of equity will not assist a copyholder against a forfeiture, which is found such at law, unless in cases where compensation can be made. . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 08 May 2022; Ref: scu.572400

Ruscoe v Grounsell: CA 1903

A stone tablet had been set into the wall of a building in 1816. I was inscribed ‘this stone is placed by J to perpetuate R’s right to build within nine inches of this and any other building.’ R was selling part of his land (adjoining the plaque) to J. A buidling was erected next to the sign in 1901. The plaintiff objected that the new building obstructed the light to a window. The defendant relied upon the plaque.
Held: The claim succeeded. The defence under section 3 did not suceed because it could not be construed as a consent or agreement within section 3 as regards a right of light.
Lord Halsbury said: ‘Enjoyment of light for twenty years would prima facie, under section 3 of the Prescription Act 1832, give a right to the light. Those who deny that the right has been acquired must show that the right has been cut down by the proviso to section 3. Looking at what has been done in this case, I will assume that the stone tablet contained an agreement and that it was in writing. But the question still remains whether that which appears upon this stone is an express agreement relating to light and made for that purpose. Looking at the possible reasons why the parties may have agreed to this inscription, I am wholly unable to say that it is so. I cannot say why the parties agreed to put this tablet up. If I were to do so, I should be doing that which the tablet itself has carefully avoided doing. I cannot come to the conclusion that it was in the minds of the parties that this tablet was intended to be a reservation as to the acquisition of a right to light. I can imagine it possible that the parties desired to preserve the boundary, when we see the statement as to ‘nine inches.’ I cannot, then, come to the conclusion that the right to obstruct the access of light to the windows of these houses was expressly reserved by an agreement expressly made for that purpose.’

Judges:

Cozens-Hardy LJ, Lord Halsbury LC and Lord Alverstone LCJ

Citations:

(1903) 89 LT 426

Statutes:

Prescription Act 1832 3

Jurisdiction:

England and Wales

Land, Limitation

Updated: 08 May 2022; Ref: scu.567940

Bradley v Wingnut Films Ltd: 1993

(New Zealand High Court) The plaintiffs complained that a relative’s tombstone was depicted in a satiric film set in part in a cemetery, and containing a significant degree of gore and violence. The tombstone was never shown in its entirety, appearing for 14 seconds only, and it was not possible to read any writing on the tombstone.
Held: The tombstone could not be identified by viewers. Moreover, there was nothing to connect the action in the film with the tombstone. A child may have a right of residence with her parents, but does not have a sufficient interst in the land to bring an action for trespass. There was however a tort of invasion of privacy involving public disclosure of private facts, but the disclosure, to be actionable, must be highly offensive and objectionable to a reasonable person of ordinary sensibility.
The infliction of emotional distress which is recognised by the authorities requires proof of something more than a transient reaction of emotional distress, regardless of initial severity.

Judges:

Gallen J

Citations:

[1993] 1 NZLR 415

Jurisdiction:

England and Wales

Citing:

Cited – Wilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .

Cited by:

Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
Lists of cited by and citing cases may be incomplete.

Land, Torts – Other, Media

Updated: 08 May 2022; Ref: scu.566205

McGregor v Crieff Co-operative Society Ltd: HL 1915

Judges:

Earl Loreburn LC, Lord Dunedin

Citations:

1915 SC (HL) 93

Jurisdiction:

Scotland

Cited by:

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

Land

Updated: 08 May 2022; Ref: scu.562182

Llanelly Railway and Dock Company v London and North Western Railway Company: CA 1872

James LJ said: ‘I start with this proposition that prima facia every contract is permanent and irrevocable and it lies upon a person who say that it is revocable or determinable to show either something special in the contract itself, or something in the nature of the contract which it is reasonably to be implied that it was not intended to be permanent and perpetual, but was to be in someway or other subject to determination.’

Judges:

James LJ

Citations:

[1872] Ch App 948

Jurisdiction:

England and Wales

Cited by:

Appeal from – Llanelly Railway and Dock Company v London and North Western Railway Company 1873
The parties had entered into a contract, in part to secure repayment of a loan, providing permission for the defendant to run its trains over the plaintiff’s tracks. The contract made no provision for termination.
Held: All the provisions of . .
Cited – Islwyn Borough Council and Another v Newport Borough Council CA 28-Jun-1993
Three local authorities disputed whether a contract had been made between them, and if so its terms, as to the financial support of a leisure centre.
Held: Later legislation need not frustrate agreement between the parties.
Hirts LJ said: . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 08 May 2022; Ref: scu.554409

Qinn v Scott: QBD 1965

A tree fell across the highway, injuring the plaintiff.
Held: The claim succeeded. he decay of the tree (which was owned by the National Trust), was there to be seen and the tree should have been felled. Glyn-Jones J said: ‘The duty of the Trust is to take such care as a reasonable landowner – and that means a prudent landowner – would take to prevent unnecessary danger to users of the highway adjoining the Trust’s land. There is not to be imputed in the ordinary landowner the knowledge possessed by the skilled expert in forestry . . But, in my opinion, there may be circumstances in which it is incumbent on a landowner to call in somebody skilled in forestry to advise him, and I have no doubt but that a landowner on whose land this belt of trees stood, adjoining a busy highway, was under a duty to provide himself with skilled advice about the safety of the trees’

Judges:

Glyn-Jones J

Citations:

[1965] 1 WLR 1004

Jurisdiction:

England and Wales

Cited by:

Cited – Stagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .
Lists of cited by and citing cases may be incomplete.

Negligence, Land

Updated: 08 May 2022; Ref: scu.526448

7 E 4, 16 Stamf Praer 14 Gardship, Tenures Aut 123: 1220

Tenure in burgage of the King, and that the heir of the tenant is within age, is found by an office returned into the Chancery ; the King grants this land to A in fee : a scire facias shall be awarded against A. to restore the land to the heir : but if it be not granted, arid only seised into the King’s hands, a supersedeas shall be awarded to remove the King’s hands. For tenure in burgage is common socage ; it is a tenure as of a city, town or borough ; the King has nothing to do with the heir whether he be utder fourteen years of age, or above fourteen, and under twenty-one.

Citations:

[1220] EngR 602, (1220-1623) Jenk 127, (1220) 145 ER 89 (C)

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 08 May 2022; Ref: scu.461514

Chetwynd v Fleetwood and Others: PC 17 May 1742

In what case an heir is bound toperform his father’s covenant though he is neither his personalrepresentative, or claims any part ofhis realestate, except what is settled upon him in strict settlement, and in whichhis fater had only an estate for life.

Citations:

[1742] EngR 59, (1742) 1 Bro PC 300, (1742) 1 ER 580

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Wills and Probate

Updated: 07 May 2022; Ref: scu.384232

Pomfret v Roycroft: 1726

Citations:

[1726] EngR 653, (1726) 1 Vent 44, (1726) 86 ER 32 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – 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 . .
See Also – Pomfret v Ricroft (No 1) 1685
. .
See Also – Pomfret v Ricroft (No 2) 1685
. .
See Also – Pomfret v Ricroft 1714
. .

Cited by:

Cited – Pomfret v Ricroft 1726
. .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.379233

Hurt v Bowmer: 1937

The expression ‘as at present enjoyed’ with reference to a right of way was not a reference to, or a limitation of, the purposes for which the way was used, such as agricultural purposes, but was to the quality of user in the sense of the manner in which it was exercised i.e. on foot or with vehicles.

Judges:

Bennett J

Citations:

[1937] 1 All ER 797

Jurisdiction:

England and Wales

Cited by:

Cited – Thompson v Bee and Another CA 20-Nov-2009
The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.381287

Westminster City Council v Haymarket Publishing Limited: CA 1981

The court was asked whether a statutory charge on the property under the General Rate Act wou ld have priority over a legal mortgage on the property existing when the charge came into being. It was argued that the charge would be only on the mortgagor-owner’s interest in the property i.e. on the equity of redemption.
Held: The argument failed. ‘charge on the land’ imposed for an unpaid surcharge was not confined to a charge on the owner’s interest in the premises when the charge arose, but extended to a charge on all the estates and interests in the premises existing when the charge arose. The rating authority’s charge would have priority over the bank’s interest as a mortgagee.
There cannot in general at least be two persons in different capacities in possession at the same time.

Citations:

[1981] 1 WLR 677, [1981] 2 All ER 555

Jurisdiction:

England and Wales

Cited by:

Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Lists of cited by and citing cases may be incomplete.

Land, Rating

Updated: 07 May 2022; Ref: scu.304592

Kingston upon Thames Royal Borough Council v Prince: 1993

A minor could succeed to a secure tenancy under the 1985 Act. Hale J said: ‘A minor can hold an equitable tenancy of any property, including a council house.’ quoting the Law commission which said: ‘Moreover the statutory provisions do not restrict a minor’s ability to acquire an equitable interest in land: there is nothing to prevent a would-be lessor granting an equitable tenancy to a minor. The desired result can be achieved by the lessor’s entering into a contract with the minor to grant him a lease on the agreed terms, followed by the minor’s entry into possession of the property let.’

Judges:

Hale J, Roch LJ

Citations:

(1993) 31 HLR 794

Statutes:

Housing Act 1985

Jurisdiction:

England and Wales

Cited by:

Cited – Alexander-David v London Borough of Hammersmith and Fulham CA 1-Apr-2009
The authority was required to provide housing to the minor applicant, but she was too young to hold a legal estate. An equitable lease had been created, and she now appealed against an order for possession having broken the terms of the agreement, . .
Lists of cited by and citing cases may be incomplete.

Housing, Land, Children

Updated: 07 May 2022; Ref: scu.329533

McGrory v Alderdale Estate Co: HL 1918

Lord Finlay LC discussed the evidence required in an enquiry as to the vendor’s title to be made on an order for specific performance: ‘if the contract is open, the obligation which the law would import into it to make a good title in every respect may be rebutted by proving that the purchaser entered into the contract with knowledge of certain defects in the title. The inference in such a case is that he was content to take a title less complete than that which the law would otherwise have given him by implication.’
Viscount Haldane said that where the bargain for title is implied and not expressed, evidence can be ‘admitted to show that, in view of the knowledge of the parties prior to the contract, the usual implication to show a full title ought not to be made.’

Judges:

Lord Finlay LC, Viscount Haldane

Citations:

[1918] AC 503

Jurisdiction:

England and Wales

Citing:

Appeal from – Alderdale Estate Company v McGrary CA 1917
. .

Cited by:

Cited – Ezekiel and Another v Kohali and Another CA 30-Jan-2009
Each side sought specific performance of a contract set out in a Heads of Agreement document, but one sought an abatement in the price, saying that the seller was unable to deliver the title promised. The seller replied that the document did not . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 07 May 2022; Ref: scu.280273

Gee v National Trust: CA 1966

Lord Denning MR considered the effect of section 8 of the 1937 Act which read: ‘Where any person is willing to agree with the National Trust that any land or any part thereof shall so far as his interest in the land enables him to bind it be made subject either permanently or for a specified period to conditions restricting the planning development or use thereof in any manner the National Trust may if it thinks fit enter into an agreement with him or accept a covenant from him to that effect and shall have power to enforce such agreement or covenant against persons deriving title under him in the like manner and to the like extent as if the National Trust were possessed of or entitled to or interested in adjacent land and as if the agreement or covenant had been and had been expressed to be entered into for the benefit of that adjacent land.’
He said: ‘The Lands Tribunal held that the National Trust must be deemed to be the owner of adjacent land; but there is a difficulty about this. There is no land specified. We do not know the area or extent of that adjacent land, nor where it would be situated. In these circumstances I am inclined to think that we do not have to deem any particular land to be in the ownership of the National Trust. Section 8 is simply machinery to give the National Trust a standing to enforce the restriction where they would have no standing at common law. I am prepared to accept the view that the National Trust, when a covenant of this kind is made, are entitled to enforce it so as to protect the interests of which they are the custodians in this country. They are, under the statute, the custodians of the natural beauty of our land, the cliffs and downs, fields and woods, rivers and shores; and of the stately homes, historic buildings, cottages, and barns. In respect of any injury to their interest as custodians of our natural beauty, I think they would be qualified to insist on these covenants.’

Judges:

Lord Denning MR, Davies LJ, Salmon LJ

Citations:

[1966] 1 WLR 170

Statutes:

National Trust Act 1937 8

Jurisdiction:

England and Wales

Cited by:

Cited – Cantrell v Wycombe District Council CA 29-Jul-2008
The appellant had bought a house at auction. It had previously been sold by a local authority subject to a covenant by the buyer allowing the authority to nominate tenants. The covenant was said to be binding on successors in title, and was . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.276800

Gifford v Dent: 1926

It was a trespass over the plaintiff’s land for the defendant to erect a sign projecting 4 ft 8 in over the plaintiff’s forecourt.

Judges:

Romer J

Citations:

(1926) 71 SJ 83

Cited by:

Cited – Bernstein of Leigh (Baron) v Skyviews and General Ltd QBD 9-Feb-1977
The plaintiff complained that the defendant had flown over his and neighbouring properties and taken aerial photographs, and said that this was a gross invasion of his privacy, and that the defendant had invaded his airspace to do so. The plaintiff . .
Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 07 May 2022; Ref: scu.268223

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 further to hold that, even if the purchaser had been at fault, section 49(2) was wide enough to enable the court to grant relief, giving a broad range of action.
Megarry J said: ‘In its 50 years of life, this section has remained remarkably quiescent. There are few authorities on it. From Charles Hunt Limited v Balmer, Finkielkraut v Monohan and James Macara Ltd. v Barclay, it appears, as one might expect, that the jurisdiction is discretionary and that it is to be exercised where justice requires it, but it will not be exercised so as to deprive a purchaser of the deposit which he is legally entitled to recover. This sub-section is essentially one that is available for use in mitigation of the vendor’s right at law to forfeit the deposit: see Williams’ Contract of Sale of Land (1930), pp. xv.94. Mr Lightman, basing himself mainly on Galbraith v Mitchenhall Estates Ltd, and the authorities there cited, contended that the jurisdiction under section 49(2) should only be exercised in favour of one party if there was unconscionable conduct by the other, but I do not think that what is appropriate in relation to any alleged equity of restitution provides any reliable touchstone for the exercise of the statutory jurisdiction conferred by section 49(2). That jurisdiction is, I think, exercisable on wider grounds than that, including a general consideration of the conduct of the parties (and especially the applicant), the gravity of the matters in question and the amounts at stake: see Shiloh Spinners Ltd v Harding which, though on a quite different point, provides a helpful analogy. The jurisdiction is, of course, statutory and is not the product of equity, but its discretionary character in relation to deposits on the sale of land makes it at least akin to equitable relief against forfeiture. A purchaser who does not claim rescission or is unable to establish a sufficient case for it may nevertheless recover his deposit by suing for its return and making out a proper case under the subsection.’

Judges:

Megarry J VC

Citations:

[1975] 30 P and CR 328

Statutes:

Law of Property Act 1925 49(2)

Jurisdiction:

England and Wales

Cited by:

Applied – 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 – 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 . .
Cited – Cole v Rose 1978
The vendor had purported to rescind the contract and retain the deposit, while selling to another purchaser at a higher price.
Held: The purchaser was entitled to return of the deposit, because the notice to complete had been ineffective. . .
Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 07 May 2022; Ref: scu.267649

Turner v Walsh: CA 1909

The landlord sought to enforce the tenant’s repairing covenants. After the tenancy had been created, he had charged his interest. The tenant said that, since the lessor had conveyed his interest by way of mortgage, the right to sue lay exclusively with the mortgagee.
Held: Section 10 of the 1881 Act conferred on a mortgagor, whose land was let before the execution of the mortgage, the right to sue on the tenant’s covenants.
Farwell LJ set of the historical purpose of section 10: ‘The section provides, in our opinion, for two distinct matters, quite independent one of the other: it first annexes rent and the benefit of covenants to the reversion, notwithstanding the severance of such reversion, and it then makes rent recoverable and covenants enforceable, ‘by the person from time to time entitled, subject to the term, to the income of the whole or any part’ of the demised land. .
The question then becomes simply one of fact: Who is entitled to the income of the mortgaged property? Where land is both demised and mortgaged, the answer depends on whether the mortgagee has taken possession or given notice of his intention to take possession of the mortgaged property or not: if he has done so then he is entitled; if he has not, the mortgagor was always and is still so entitled, and he receives and retains such income for his own benefit without any liability to account either at law or in equity.

The 10th section makes no alteration in the rights of anyone, but merely alters procedure, so as to give the right of action to the person entitled to the proceeds of such action. This is plain if the true nature and character of a mortgage is borne in mind; it is a mere security for the debt, and (subject to the paramount liability to this debt) the mortgagor retains an estate which can be granted and demised, and which descends to the heir. .
As to the ‘practical difficulties’ for the mortgagor in enforcing the lease covenants, it was probable that difficulty seldom arose, because it was to the interest of the mortgagee as well as of the mortgagor that the lessee’s covenants should be performed: ‘It is plain, therefore, that a construction of s 10 that obviates these technical difficulties interferes with no rights, but merely simplifies procedure. It is urged that s 10 falls under Part III of the Act, headed ‘Leases,’ and that ‘Mortgages,’ form Part IV, and that mortgages would have been expressly mentioned in s 10 if leases of land in mortgage had been intended. We are unable to follow this. The Act is not constructed in watertight compartments. The object of the Act was to amend the law of property generally, and mortgages and leases constantly overlap; there are probably few large estates in England all or parts of which have not been in mortgage for the last two centuries at least. The words in s 10, ‘person entitled to the income,’ are perfectly general. ‘Income,’ by s 2(3) includes ‘rents and profits,’ and it would be difficult to find a better definition of a mortgagor in possession than the person entitled to the rents and profits of the land, or to the income thereof, if the land is subject to a lease. It is certainly in accordance with the intention expressed in s 25(11) of the Judicature Act, 1873, that this should be so, and it seems probable that when, in 1878, it was suggested in Fairclough v Marshall 4 Ex D 37 that s 25(5) had this defect, s 10 of the Conveyancing Act, 1881, was framed designedly to cure it.’

Judges:

Farwell LJ

Citations:

[1909] 2 KB 484

Statutes:

Conveyancing Act 1881 10

Jurisdiction:

England and Wales

Cited by:

Cited – Rhodes v Allied Dunbar Pension Services Ltd CA 1989
The intermediate tenant had charged the lease to the bank, which appointed receivers. Both the sub rent and the head rent fell into arrears. The head landlord then served a notice direct on the subtenant requiring him to pay the rent direct to the . .
Cited – Schalit v Joseph Nadler Ltd CA 1933
Mr Nadler was a lessee of property, part of which he sublet to the plaintiff. In 1931 he made a declaration of trust, under which he declared that the property was held in trust for his company, Joseph Nadler Ltd. Shortly after the company purported . .
Cited – Scribes West Ltd v Relsa Anstalt and others CA 20-Dec-2004
The claimant challenged the forfeiture of its lease by a freeholder which had acquired the registered freehold title but had not yet registered its ownership. The second defendant had forfeited the lease by peacable re-entry for arrears of rent, and . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.264581

Nesbitt v Mablethorpe Urban District Council: 1918

Where a squatter lets a tenant of his into possession the consequent acceptance of rent by the squatter is to be taken as evidence of possession by the squatter;

Citations:

[1918] 2 KB 1

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 07 May 2022; Ref: scu.267349

In re Leighton’s Conveyance: CA 1937

Rules of court provided that a person suing as a poor person should not be ordered to pay costs.
Held: The Order did not prevent the mortgagee adding to her security her costs in an action brought by the mortgagor suing as a poor person. Lord Wright MR said: ‘ Now what the learned judge has done is to deny the ordinary right of a mortgagee to add to his security all costs, charges and expenses reasonably and properly incurred in ascertaining or defending his rights, or in recovering the mortgage debt. It is not really a matter which arises in connection with the awarding of costs. If it had been a question of the awarding of costs as between parties to the action the learned judge could not have ordered Mrs. Priestman to pay any costs, because she was proceeding as a poor person, and under the terms of Order XVI r. 28 ‘no poor person shall be liable to pay costs to any other party’; but that is not the question at all. What the learned judge has done here has been to do something entirely different from ordering ordinary costs in the action : he has made an order which has the effect, if it stands, of depriving the mortgagee in this case . . . of the ordinary rights of a mortgagee. The mortgagee here was compelled to defend her rights, or at least cannot be said to have acted unreasonably in seeking to defend her rights.’
Romer LJ said: ‘Where a mortgagee’s title is attacked by somebody who is a stranger to the mortgagee, the circumstances in which the mortgagee is entitled to add his proper costs in defending his title to the mortgagee’s security are stated by Sir W. Page-Wood, V.C., in Parker v. Watkins (John 133, 137) where he said this: ‘ I quite agree that, where a mortgagee has been put to expense in defending the title to the estate, the defence being for the benefit of all parties, he is entitled to charge those expenses against the estate; but if some litigious person chooses to contest his (the mortgagee’s) title to the mortgage, that should not affect the parties interested in the equity of redemption, unless they can be shown to have concurred in or assisted the litigation.”

Judges:

Lord Wright MR, Romer LJ

Citations:

[1937] 1 Ch 149

Jurisdiction:

England and Wales

Cited by:

Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Costs, Land

Updated: 07 May 2022; Ref: scu.266401

Des Barres and Another v Shey: 1873

The defendants resisted a claim for possession asserting adverse possession from 1815 or 1832. This included possession during periods over which they had granted tenancies or licences but where the tenants or licensees had been in occupation thereunder and had paid rent to the defendant or his predecessors.
Held: The defendants were taken to have acquired legal possession by way of possession; the licensee’s or lessee’s occupation was properly counted by the squatter as acts of possession as against the paper owner.

Citations:

(1873) 29 LT (NS) 592

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 07 May 2022; Ref: scu.267348

Prosper Homes Ltd v Hambros Bank Executor and Trustee Co Ltd: 1980

The court considered whether a contract had been validly rescinded. The validity of a completion notice was challenged on the ground that the vendors were not ready, able and willing to complete the sale when the notice was served because they were in breach of their fiduciary obligation to look after the subject property. Without informing the purchasers, the vendors had permitted a change in the lessee and user of part of the property.
Held: It was completely uncommercial to require a vendor to be considered unable or unwilling or unready to complete merely because he may have failed in some respect to carry out his duty between contract and completion in looking after the property. That default would sound in damages.
Browne-Wilkinson J said: ‘the fact that a vendor may have failed in some respect to carry out his duty between contract and completion in looking after the property does not mean that he is unable or unwilling or unready to complete . . If any damage has occurred in the interim the vendor would have to make it good in damages. It does not prevent a completion of the contract.’

Judges:

Browne-Wilkinson J

Citations:

(1980) 39 P and CR 395, (1979) 39 P and CR 395

Jurisdiction:

England and Wales

Cited by:

Cited – Eyestorm Ltd v Hoptonacre Homes Ltd CA 19-Dec-2007
The appellant had agreed to take leases on a development of the defendant, hoping to sell the apartments on at a profit. After difficulties, the appellant refused to complete, and the defendant forfeited the deposits.
Held: Eyestorm’s appeal . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 07 May 2022; Ref: scu.263182

Holden v White: CA 1982

Apart from any special local custom or express contract, the owner of a servient tenement is not under any obligation to the owner of the dominant tenement to execute any repairs necessary to ensure the enjoyment of the easement by the dominant owner; apart from special local custom or express contract, the law will leave the dominant owner to look after himself.

Judges:

Oliver LJ

Citations:

[1982] 2 WLR 1030

Jurisdiction:

England and Wales

Cited by:

Cited – Westminster (Duke of) and others v Guild CA 30-Mar-1983
The landlord brought an action for non-payment of rent. The tenant sought to set off a failure by the landlord to repair the building of which his flat was part and which failure had caused him loss. The landlord said that it had no express duty to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.259563

Longhead v Phelps: 1770

The court considered the operation of the rule against perpetuities where a gift was left according to different events.

Citations:

(1770) 2 Wm Bl 704

Jurisdiction:

England and Wales

Land

Updated: 07 May 2022; Ref: scu.259571

Jaggard v Sawyer: CC 1993

(Weymouth County Court) The court refused an injunction to a land owner who complained that a neighbour had erected a building over a right of way. The court awarded damages of andpound;694.44, being a proportionate part of the the sum he might be expected to have to pay for the right of way which had been lost.

Judges:

Judge Jack QC

Citations:

[1993] 1 EGLR 197

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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 – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
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.

Land, Damages

Updated: 07 May 2022; Ref: scu.258437

Hertfordshire County Council, Regina (on the Application of) v Department of Environment Food and Rural Affairs: Admn 14 Oct 2005

Application for judicial review of a decision by an Inspector appointed by the defendant not to confirm three public path extinguishment orders made by the claimant under section 118 of the Highways Act 1980

Judges:

Mr Justice Sullivan

Citations:

[2005] EWHC 2363 (Admin)

Links:

Bailii

Statutes:

Highways Act 1980 118

Jurisdiction:

England and Wales

Land

Updated: 07 May 2022; Ref: scu.235195

Crazy Bear Group Ltd v Patel and Another: ChD 12 Nov 2020

‘This is a neighbour dispute where the parties have failed to be open with each other about the true facts and have not acted as neighbours should by resolving problems through discussion, negotiation and, if necessary, mediation. ‘

Judges:

ICC Judge Jones sitting as a High Court Judge

Citations:

[2020] EWHC 3023 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 07 May 2022; Ref: scu.656294

Lewis, Regina (on the Application of) v Redcar and Cleveland Borough Council: Admn 20 Dec 2007

The claimant sought registration of an open area as a Commons under the 2006 Act. Until 2002 it had been tenanted by a golf club. The inspector had recommended against registration, saying that the use by the public for lawful pastimes had been for more than twenty years, but that this use had been generally deferential to the tenants, and so had not been as of right’.
Held: To establish a common, the use had to be ‘as of right’ and the use had acknowledged the tenants’ and therefore the land-owners’ rights. The claim for a common failed.

Judges:

Jackson J

Citations:

[2007] EWHC 3166 (Admin), [2008] JPL 1156, [2008] ACD 38

Links:

Bailii

Statutes:

Council Directive 79/409/EC of 2nd April 1979, on the Conservation of Wild Birds, Commons Act 2006 15

Jurisdiction:

England and Wales

Cited by:

Appeal from – Lewis, Regina (on the application of) v Redcar and Cleveland Borough Council and Another CA 15-Jan-2009
The claimants sought registration of land as a common, saying that it had been used by the local residents for social activities for many years. The council had licenced the land for use as a golf course for many years.
Held: The residents’ . .
At First Instance – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Lists of cited by and citing cases may be incomplete.

Planning, European, Land

Updated: 07 May 2022; Ref: scu.271202

Nickerson v Barraclough (1): ChD 1980

The court considered an assertion that a right of necessity was implied into a deed.
Held: ‘In the present case the land conveyed was plainly intended to be used for building purposes, and of course it plainly needed access for building materials and for the occupants of the houses when constructed: yet there was the express negativing of the grant of any way in the second limb of paragraph 7 of the first schedule, despite the need for some grant of a way that appeared from the surrounding circumstances as disclosed by the conveyance itself
I find great difficulty in holding that there has been granted by implication something that the grant expressly negatives
I find it almost impossible to imply a grant in the teeth of the express negation of any grant; and the grant of a way of necessity seems plainly to be one form of implied grant. There is, however, one consideration that is peculiar to ways of necessity that seems to be in point. During argument, I was referred to a sentence in Gale on Easements (14th. Edition 1972), page 177 on the subject of ways of necessity, which runs: ‘The principle appears to be based on the idea that the neglect of agricultural land is contrary to public policy’: and for this two old decisions are cited’.
and
‘This seems to me to raise a novel point of some difficulty and importance. Put shortly, it is whether on a grant of land in circumstances which otherwise would create a way of necessity or a way implied from the common intention of the parties based on a necessity apparent from the deeds it is open to the parties to negative the creation of such a way by some express term in the conveyance. I cannot think that the point is in any way confined to agricultural land: whatever the actual or prospective use of the land, the question arises whether in the absence of special circumstances public policy will permit the parties to a conveyance to make land inaccessible save by air transport and thus unusable. As applied to the present case, the question would be whether the Court should impose on the second limb of paragraph 7 of the first schedule a qualification which would exclude from its operation any way required for access for building purposes which would otherwise be implied. As the evidence stands, apart from paragraph 7 I would have no hesitation in holding that in the circumstances of the 1906 conveyance there was an implied grant of a way to plot 78a for building purposes; for the contemplated use of the plot was for those purposes, and so the extent of the way is to be measured by those purposes: see Gayford v. Moffatt (1868) 4 Ch. Appeals 133 at 136. As for the line of the way, since no express allocation of a line by the grantor appears to have been made, I think the tacit allocation of a way over the future Scouts Road which has emerged from the user that I shall describe in due course would suffice as an allocation.
However, in the absence of full argument on the point I do not think that I ought to decide it’.

Judges:

Vice-Chancellor Megarry J

Citations:

Unreported, 1980

Statutes:

Law of Property Act 1925 62

Jurisdiction:

England and Wales

Citing:

Cited – North Sydney Printing Property Ltd v Sobemo Investment Co. Ltd 1971
(Supreme Court of New South Wales in Equity) A company sold part of its land, which abutted on to a street. The retained land had no access to a highway, but the company intended subsequently to sell it to the local authority as an addition to a . .

Cited by:

First judgment – Nickerson v Barraclough (2) ChD 2-Jan-1980
The Vice-Chancellor said: ‘if land is conveyed in circumstances which otherwise would create a way of necessity, or a way implied from the common intention of the parties based on a necessity apparent from the deeds, does public policy prevent the . .
Appeal from – 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 – Adealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .
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 . .
See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.253406

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 31(1) during that period. In this case the landowner had closed off the pathway for one day in each year.

Citations:

[1937] 2 KB 77

Jurisdiction:

England and Wales

Cited by:

Cited – 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. . .
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 . .
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: 07 May 2022; Ref: scu.253533

Nickerson v Barraclough (2): ChD 2 Jan 1980

The Vice-Chancellor said: ‘if land is conveyed in circumstances which otherwise would create a way of necessity, or a way implied from the common intention of the parties based on a necessity apparent from the deeds, does public policy prevent the creation of such a way from, being negatived by an express term in the grant?’ and after discussing case law he said: ‘If such a head of public policy exists, as I think it does, the question is what its bounds are. I do not think it can be said that, whatever the circumstances, a way of necessity will always be implied whenever a close of land is made land-locked. One can conceive of circumstances where there may be good reason why the land should be deprived of all access.
Accordingly, I would not go beyond saying that there is a rule of public policy that no transaction should, without good reason, be treated as being effectual to deprive any land of a suitable means of access. Alternatively, the point might be put as a matter of construction: any transaction which, without good reason, appears to deprive land of any suitable means of access should, if at all possible, be construed as not producing this result.
Now the wording of the clause in question, paragraph 7 of the First Schedule to the 1906 conveyance, as it appears in the examined abstract and with the contractions expanded, runs as follows: ‘The Vendor did not undertake to make any of the proposed new roads shown on the said Plan nor did he give any rights of way over the same until the same should (if ever) be made’ ‘
And ‘This clause of the schedule seems primarily concerned to relieve the vendor of any obligation to make any of the proposed new roads, in the sense of constructing roadways over the routes shown on the plan. If one disregards public policy and the doctrine of derogation from grant, I think the natural meaning of the second limb of the clause is that until roadways had been constructed on the routes shown on the plan, the purchaser was to have no right of way over the routes along which those roadways were to be constructed. I think, however, that it is also possible, though less natural, to read the second limb as in effect merely reinforcing the first limb. The first limb simply negatives any undertaking by the vendor to make up the new roads; the second limb goes on to prevent the conveyance giving any rights of way over the new roads which might enable the purchaser to claim that, having been granted a right of way over the new roads, he can, by virtue of that right, require the vendor to construct them. On that footing, the second limb does not negative any way of necessity over the unmade sites of the proposed new roads. All that is negatived is any rights of way over the proposed new roads until they are constructed. Nothing, however, was done to negative any way of necessity. I readily accept that this may be regarded as a somewhat strained interpretation of paragraph 7 of the First Schedule; but I do not think that it is so impossible that I must reject it. If, then, in construing this provision I give proper weight to the doctrine against derogation from grant and the rule of public policy, I think that I can construe paragraph 7 in. this particular way, and that I ought in fact to do so. If I am wrong in this, then I would hold, though with some hesitation, that public policy requires that paragraph 7 should not take effect so as to negative the implied grant of a way of necessity. As I have already held, I think that there has been a tacit allocation by user of a way over what is now Scouts Lane, and that this way is a way for building purposes’.
The Vice-Chancellor explained exactly what he meant by a ‘way of necessity’ in that passage: ‘a way implied from the common intention of the parties, based on a necessity apparent from the deeds’.

Judges:

Vice Chancellor

Citations:

[1980] ChD 325

Jurisdiction:

England and Wales

Citing:

First judgment – Nickerson v Barraclough (1) ChD 1980
The court considered an assertion that a right of necessity was implied into a deed.
Held: ‘In the present case the land conveyed was plainly intended to be used for building purposes, and of course it plainly needed access for building . .
Cited – North Sydney Printing Property Ltd v Sobemo Investment Co. Ltd 1971
(Supreme Court of New South Wales in Equity) A company sold part of its land, which abutted on to a street. The retained land had no access to a highway, but the company intended subsequently to sell it to the local authority as an addition to a . .

Cited by:

Appeal from – 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 – Adealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .
Cited – Payne v Inwood CA 1996
A claim for an easement based upon section 62 of the 1925 Act failed. There had not been regular use of the path in question with the putative dominant tenement to gain access to it. Roch LJ said: ‘Section 62 of the 1925 Act cannot create new rights . .
Cited – Campbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.253407

Batchelor v Kent County Council: LT 1 Mar 1987

The tribunal was asked to determine compensation to be paid on the acquisition of two plots of land. The land-owner claimed andpound;9,000,000 and the council offered andpound;5,490. The land-owner claimed the value as ransom as necessary access to a larger development.

Judges:

WH Rees Esq

Citations:

117/1986, (1989) 59 P and CR 357

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 – Chapman Lowry and Puttick v Chichester District Council LT 1984
. .
Cited – Lambe v Secretary of State for War CA 1955
The acquiring authority was a sitting tenant and the compulsory purchase order related to the freehold reversion.
Held: Rule 3 was inapplicable. The marriage value which a reversion has for a sitting tenant does not clothe the land with a . .
Cited – Barstow and Others v Rothwell Urban District Council 1971
. .
Cited – Dicconson Holdings Ltd v St Helens Metropolitan Borough 1979
. .
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 – F T Challinor v Stone Rural District Cuncil LT 1972
. .

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.

Land

Updated: 07 May 2022; Ref: scu.245982

Mitchell v Mosley: CA 1914

Where a plot of land sold has the boundaries identified, prima facie, the conveyance will also include all the land within and below the boundaries.
Lord Cozens-Hardy MR said: ‘In my opinion we should be going contrary to perfectly well settled principles of law if we were to allow for a moment any doubt to arise on the construction of those two conveyances, which alone we must look at. We can have no doubt as to their meaning and effect. It seems to me quite clear that they are conveyances of everything – conveyances of the land whch include (unless you can find something to the contrary) everything down to the centre of the earth. The grant of the land includes the surface and all that is supra – houses, trees, and the like . . And all that is infra, ie mines earth, clay and co . . It is to my mind quite clear as a matter of construction of the conveyances that not merely the surface rights but the whole substratum to the centre of the earth, even including the vacant spaces from which during the term the coal may have been worked out by the lessees – all that passed by the conveyances to the Mitchells.’
Swinfen Eady and Phillmore LJJ agreed with Cozens Hardy saying this was a recognised principle of law.

Judges:

Lord Cozens-Hardy MR, Swinfen Eady and Phillmore LJJ

Citations:

[1914] 1 Ch 438, [1914] LJCh 438, [1914] 109 LT 648

Jurisdiction:

England and Wales

Cited by:

Cited – Grigsby v Melville CA 6-Jul-1973
The seller had owned two adjoing properties. He sold one off to the plaintiff, describing it in the conveyance as ‘all that dwellinghouse’. A cellar under the part sold off had access only from the retained property, but contained supports for the . .
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.

Land

Updated: 07 May 2022; Ref: scu.244813

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 interference with the plaintiff’s right to light. Referring to Ough v King, he said that the decision ‘really means not so much that one disregards the 50/50 rule, but that it is a bare minimum’ and ‘It seems to me that having regard to the authorities I ought to approach the problem on these bases: (i) In a room that is already ill-lit every bit of light is precious. (ii) Save in an extreme case it would be difficult to say that once a living room (contrast a store) fell below 50/50 that the light left was adequate. (iii) In considering whether a room where more than 50% remained well-lit regard should be had to the use to be made of the remainder and how bad, vis a vis that use, the remaining light was. (iv) The test is not merely a statistical one: test (ii) provides a pretty irreductible minimum.’

Judges:

Judge Cooke

Citations:

[1994] 1 EGLR 190

Citing:

Cited – 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 . .

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

Land, Nuisance

Updated: 07 May 2022; Ref: scu.244243

Spicer v Martin: HL 1888

Lord McNaughton said: ‘The site was laid out in accordance with the building scheme. The houses were to be built as private houses, and to be used for no other purpose: a covenant to that effect was imposed on the builder who bought the ground, and intended to parcel it out and sell it, or let it again . . Every lessee must have known that ever other lessee was bound to use his house as a private residence only. This restriction was obviously for the benefit all the lessees on the estate; they all had a common interest in maintaining the restriction. This community of interest necessarily, I think, requires and imports reciprocity of obligation.’

Judges:

Lord McNaughton

Citations:

(1888) 14 App Cas 12

Jurisdiction:

England and Wales

Cited by:

Cited – Elliston v Reacher ChD 1908
The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.242388

Humphreys v Rochdale Metropolitan Borough Council: Admn 18 Jun 2004

Acts of grazing and fertilising by the owner which would have contravened the 1857 and 1876 Acts if the land had been a village green at the time, prevented the land from satisfying the section 22 definition.

Judges:

Judge Howarth

Citations:

Unreported, 18 June 2004

Statutes:

Commons Registration Act 1965

Jurisdiction:

England and Wales

Cited by:

Disapproved – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.242331

Regina (Laing Homes Ltd) v Buckinghamshire County Council: Admn 8 Jul 2003

Land was used for ‘low-level agricultural activities’ such as taking a hay crop at the same time as it was being used by the inhabitants for sports and pastimes.
Held: The Act was not intended to prevent the owner using the land in a way which did not conflict with the rights of common. ‘If the area is in fact intersected with paths and clearings, the fact that these occupy only 25% of the land area would not in my view be inconsistent with a finding that there was recreational use of the scrubland as a whole. For example, the whole of a public garden may be used for recreational activities even though 75% of the surface consists of flower beds, borders and shrubberies on which the public may not walk. ‘

Judges:

Sullivan J

Citations:

[2004] 1 P and CR 573

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.242330

Dyce v Lady James Hay: HL 1852

A claim was made for a prescriptive right for all the Queen’s subjects ‘to go at all times upon the . . appellant’s property . . for the purpose of recreation’.
Held: Leonards LC said that the right claimed was one that ‘cannot be maintained’ and ‘ought not to be maintained’. There could not be a prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected. He agreed with the Court of Session: ‘that there is no rule in the law of Scotland which prevents modern inventions and new operations being governed by old and settled legal principles. Thus, when the art of bleaching came into use, there was nothing in its novelty which should exclude it from the benefit of a servitude or easement, if such servitude or easement on other legal grounds was maintainable. The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind. The law of this country, as well as the law of Scotland, frequently moulds its practical operation without doing any violence to its original principles.’

Judges:

Lord St Leonards LC

Citations:

(1852) 1 Macq 305

Jurisdiction:

Scotland

Cited by:

Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Batchelor v Marlow and Another CA 12-Jul-2001
The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.242326

Dixon v Fisher: HL 12 Jun 1845

Lord Cockburn said ‘no man can make his property real or personal by merely thinking it so.’

Judges:

Lord Cockburn

Citations:

(1843) 5 D 775, [1845] EngR 973, (1845) 12 Cl and Fin 312, (1845) 8 ER 1426

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Elitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.240422

Bain v Brand: HL 1876

The law as to fixtures is the same in Scotland as in England. There were two general rules under the comprehensive term of fixtures: ‘One of these rules is the general well-known rule that whatever is fixed to the freehold of land becomes part of the freehold or inheritance. The other is quite a different and separate rule;–whatever once becomes part of the inheritance cannot be severed by a limited owner, whether he be owner for life or for years, without the commission of that which, in the law of England, is called waste, and which, according to the law of both England and Scotland, is undoubtedly an offence which can be restrained. Those, my Lords, are two rules, not one by way of exception to the other, but two rules standing consistently together. My Lords, an exception indeed, and a very important exception, has been made, not to the first of these rules, but to the second. To the first rule which I have stated to your Lordships there is, so far as I am aware, no exception whatever. That which is fixed to the inheritance becomes a part of the inheritance at the present day as much as it did in the earliest times. But to the second rule, namely, the irremovability of things fixed to the inheritance, there is undoubtedly ground for a very important exception. That exception has been established in favour of fixtures which have been attached to the inheritance for the purposes of trade, and perhaps in a minor degree for the purpose of agriculture. Under that exception a tenant who has fixed to the inheritance things for the purpose of trade has a certain power of severance and removal during the tenancy. . . ‘

Judges:

Lord Cairns LC

Citations:

(1876) 1 App Cas 762

Jurisdiction:

Scotland

Cited by:

Cited – Elitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.240419

Nicholls v Nicholls: 1889

Citations:

(1889) 81 LT 811

Cited by:

Cited – Kent and Another v Kavanagh and Another CA 2-Mar-2006
The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.239384

Mercer v Liverpool, St Helen’s and South Lancashire Railway: HL 1904

Citations:

[1904] AC 461

Jurisdiction:

England and Wales

Citing:

Affirmed – Mercer v Liverpool St Helens and South Lancashire Railway 1903
Stirling J: ‘Now at law a contract for the sale of land creates merely a personal obligation between the vendor and purchaser and does not bind the land; in equity such a contract binds the land and that not only as against the vendor, but also as . .

Cited by:

Cited – Rhondda Cynon Taff Borough Council v Watkins CA 12-Feb-2003
Land had been purchased compulsorily, but the respondent unlawfully returned to possession in 1966, and now claimed title by adverse possession. The Council executed a vesting deed poll in 1988. The Council asserted that he could not be in adverse . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 07 May 2022; Ref: scu.238204

Attorney General v Shadwell: 1910

Land in Northholt was granted under the 1841 Act for use as a school. In 1907 the school was closed, another school having been opened by the local authority nearby. Thereafter the building was used only once a week for a Sunday school. The Board of Education contended that there had been no reverter because although the land was no longer being used for the general education of poor persons, use as a Sunday school provided them with ‘religious and useful knowledge’. The argument of Mr Cave KC for the successor to the grantor was that a reverter occurred if the land ceased to be used for the statutory purpose chosen by the grantor. It did not matter that it was still being used for some other purpose which he could have chosen but did not: ‘The provision for reverter means that the land is to revert if it ceases to be used for such of the purposes of the Act as are specified in the grant, namely, in this case, the first purpose only.’
Held: Warrington J accepted this argument, saying that the Act specified three purposes and that ‘the grantor may select his own purpose from amongst those three’. ‘you must read ‘the purposes in this Act mentioned’ as meaning such of those purposes as are applicable to the case in question’ and ‘looking at the substance of the matter, as I consider I am bound to do, I must hold that the premises have ceased to be used for the purposes in the Act mentioned.’

Judges:

Warrington J

Citations:

[1910] 1 Ch 92

Statutes:

School Sites Act 1841 82

Jurisdiction:

England and Wales

Cited by:

Applied – Habermehl v Attorney General 1996
Land was granted for use as a school for the education of poor persons in accordance with the principles of the National Society. In 1876 the school had become a ‘provided school’ run by a School Board under the Education Act 1870. That meant that, . .
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, Limitation

Updated: 07 May 2022; Ref: scu.231636

British Railways Board v G J Holdings Ltd: 1974

There can be no adverse possession where the squatter’s use of the land was not inconsistent with the use intended by the paper owner.

Citations:

(1974) 230 EG 973

Jurisdiction:

England and Wales

Cited by:

Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Lists of cited by and citing cases may be incomplete.

Limitation, Land

Updated: 07 May 2022; Ref: scu.228932

Whiteley v Delaney: HL 1914

A farm in Yorkshire had been charged by O first to A and then to the plaintiff, and the charges registered under the Yorkshire Registry Acts. An attempt was made to sell of part of the land by o to his daughter to repay some of the money. She sought, through her solicitor W, a contributor to repay the first loan. Parties were unaware of the first charge. Completion and registration took place. A was repaid by the contributor who now said that instead of the charge being discharged, he now stood in A’s stead with a first mortgage.
Held: He was not entitled to priority. There had been a common mistake, induced by O, and the deeds as framed, and with his involvement, did not represent the intentions of the parties. The question of merger must, therefore, be decided according to the doctrines of equity, and the principle by which the Court of Equity is guided is the intention.
A purchaser from a mortgagor and a first mortgagee can always, if he chooses, keep the first mortgage alive and so protect himself against subsequent incumbrances and whether or not he had notice.

Judges:

Viscount Haldane LC

Citations:

[1914] AC 132, 83 LJ Ch 349, 110 LT 434, 58 Sol Jo 218

Jurisdiction:

England and Wales

Cited by:

Cited – Paragon Finance Plc v Pender and Another CA 27-Jun-2005
The defendants had purchased their property from the local authority with the support of a loan from the claimants. The defendants fell into arrears but now sought to resist possession on the basis that the claimant, in securitising their portfolio . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 07 May 2022; Ref: scu.229647

Morgan v Fear: HL 1907

Two adjoining tenants held of the same landlord. One enjoyed access and use of light over the adjoing tenanted premises for a period in excess of twenty years and without interruption.
Held: An absolute right of light was acquired as against the other tenant and against his successors in title, and also the landlord.

Citations:

[1907] AC 425, 76 LJ Ch 660, 51 Sol Jo 702

Jurisdiction:

England and Wales

Citing:

Appeal from – Fear v Morgan CA 1906
. .

Cited by:

Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Land

Updated: 06 May 2022; Ref: scu.222582

Texaco Antilles Ltd v Kernochan: HL 1972

The court considered the doctrine of unity of seisin of land as it affected restrictive covenants: ‘if the restrictions in question exist simply for the benefit of two adjoining premises [and not as part of a building scheme] and both those properties are bought by one man, the restrictions will automatically come to an end and will not revive on a subsequent severance unless the common owner then recreates them.’

Citations:

[1972] AC 609

Jurisdiction:

England and Wales

Cited by:

Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
Cited – Mount Cook Land Ltd v Joint London Holdings Ltd and Another CA 7-Oct-2005
The head lease contained a covenant against use of the premises as ‘victuallers’. The tenant sublet the premises for use as a sandwich shop. The tenant argued that the word ‘victuallers’ was to be construed only to prevent the use as ‘licensed . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 May 2022; Ref: scu.220707

Knightsbridge Estates Trust Ltd v Byrne: HL 1940

A mortgage of freehold land contained a covenant to repay the secured loan by half-yearly instalments over a period of 40 years. The mortgagors sought early redemption arguing that the contractual postponement of repayment over a 40 year period was void in equity. The respondents relied upon the mortgage constituting a debenture as defined by s.380 of the Companies Act 1929 so that s.74 applied to prevent the condition for postponement becoming invalid in equity on grounds of the length of the period.
Held: It was a debenture.
Viscount Maugham said: ‘If we begin by asking what the word ‘debenture’ means, apart from any definition, the reply must be that it has no precise meaning. Chitty J. observed in the case of Levy v. Abercorris Slate and Slab Co., that the word ‘means a document which either creates a debt or acknowledges it, and any document which fulfills either of these conditions is a debenture.’ An interesting extract from Skeat’s Etymological Dictionary (1882) will be found in a footnote to the case (p. 264). Sir Nathaniel Lindley had previously stated simply, ‘What the correct meaning of ‘debenture’ is I do not know’: British India Steam Navigation Co. v. Inland Revenue Commissioners. In Lemon v. Austin Friars Investment Trust, Ld., the same ignorance was professed in the Court of Appeal. Warrington L.J. in particular, after observing that it had been said ‘by a wiser man than himself’ that it was impossible to give an exhaustive definition of the word ‘debenture,’ went on to remark that he did not propose to incur the reproach of venturing where wise men fear to tread. The text books are agreed at least in this that no accurate definition of the word can be found. I think it sufficient to cite Buckley on the point (11th ed., p. 174). It is clear, therefore, that it was desirable to insert in any consolidation of the Companies Acts a definition of the word.
I do not think there is any strong argument for suggesting that s. 74 of the Act of 1929, or any of its predecessors, ought by reason of its nature to be confined to what may be called ordinary debentures. As we have seen, some definition was certainly desirable, and the very wide terms used by the Legislature in the Act of 1928 and reproduced in the consolidating Act of the following year seem to me to show that it was intended to give freedom of contract as regards the particular matter involved in s. 74 in relation to any securities granted on loan by a company registered under the Companies Acts. It is contended that the context otherwise requires. I am unable to find any such context.’

Judges:

Viscount Maugham

Citations:

[1940] AC 613, [1940] 2 All ER 401

Statutes:

Companies Act 1929 380

Jurisdiction:

England and Wales

Cited by:

Appealed to – Knightsbridge Estates Trust Ltd v Byrne CA 1939
The company mortgaged properties in London to secure an advance from a Friendly Society. A clause of the mortgage provided for repayment by eighty half-yearly instalments. The mortgage further provided that if the mortgagor paid the instalments on . .
Lists of cited by and citing cases may be incomplete.

Land, Company

Updated: 06 May 2022; Ref: scu.219913

Ormond Investment Co Ltd v Betts: HL 1928

The House considered the interpretation of a statute dealing with public rights of navigation.
Held: ‘Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute’
Lord Buckmaster said of the statement by Lord Sterndale in Cape Brandy: ‘That is, in my opinion, an accurate expression of the law, if by ‘any ambiguity’ is meant a phrase fairly and equally open to divers meanings’.

Judges:

Lord Buckmaster

Citations:

[1928] AC 143

Jurisdiction:

England and Wales

Citing:

Cited – Cape Brandy Syndicate v Inland Revenue Commissioners CA 1921
Rowlatt J said: ‘In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied’ and . .

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, Litigation Practice

Updated: 06 May 2022; Ref: scu.215860

Lewisham Borough Council v Roberts: CA 1949

The council sought to exercise its powers under the Act to take possession of part of the defendant’s property.
Held: Denning LJ said: ‘It is necessary to consider the nature of the power to requisition land. It is only a power to take possession of land. It is not a power to acquire any estate or interest in any land . . Once possession is taken the Crown can exercise all the powers incident to possession, such as to license other people to use the premises; . . but it cannot grant a lease or create any legal interest in the land in favour of any other person, because it has itself no estate in the land out of which to carve any interest.’
Jenkins J rejected an argument that the principle was one of delegation: ‘I think this contention is based on a misconception of the relationship between a minister and the officials in his department. A minister must perforce, from the necessity of the case, act through his departmental officials, and where as in the Defence Regulations now under consideration functions are expressed to be committed to a minister, those functions must, as a matter of necessary implication, be exercisable by the minister either personally or through his departmental officials; and acts done in exercise of those functions are equally acts of the minister whether they are done by him personally, or through his departmental officials, as in practice, except in matters of the very first importance, they almost invariably would be done. No question of agency or delegation . . seems to me to arise at all.’

Judges:

Denning LJ

Citations:

[1949] 2 KB 608

Statutes:

Emergency Powers (Defence) Act 1939

Jurisdiction:

England and Wales

Cited by:

Cited – Bruton v London and Quadrant Housing Trust HL 24-Jun-1999
The claimant sought to oblige the respondent to repair his flat under the 1988 Act. The respondent replied that the arrangement was a licence only, and not protected under the Act.
Held: The housing association had a temporary licence to . .
Cited – Castle v Crown Prosecution Service Admn 24-Jan-2014
The defendant appealed from his conviction for having driven in excess of a variable speed limit on the motorway. He said that the Order under which the speed limit had been imposed was irregular. . .
Cited – Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Land, Constitutional

Updated: 06 May 2022; Ref: scu.199979

Pastoral Finance Association v The Minister: 1914

Citations:

[1914] AC 1083

Jurisdiction:

England and Wales

Cited by:

Cited – Ryde International Plc v London Regional Transport CA 5-Mar-2004
The landowner had developed land which was then made the subject of compulsory purchase. The court was asked how the compensation was to be calculated. The landowner expected to sell the development as a whole. The respondent argued that the profit . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 May 2022; Ref: scu.199731

Eyre v New Forest Highway Board: 1892

Wills J said: ‘All highways, all rights of passage over the property of individuals, have their actual or presumed origin, although it is not often the origin in point of fact, in a dedication by the owner of the soil, that is to say he either says in so many words, or he so conducts himself as to lead the public to infer that he meant to say: ‘I am willing that the public should have this right of passage.’ If a man has actually conceded that right of passage to the public it is irrevocable, and that is expressed by the maxim with which we are all familiar, I suppose, ‘once a highway always a highway.’ Up till the year 1835 when the Highway Act which is the foundation of our present system, was passed, if there was a dedication of a road to the public by the owner either expressed by deed, as occasionally happens, or inferred from public user for such a time as to any tribunal who judges the case will appear sufficient to found that inference, if the proper inference was that he had said or so conducted himself as to imply that he had granted that right of passage to the public; and the public had on their part accepted it and used the road, from that moment there was not only a right of passage on the part of the public but there was the liability to repair on the part of the parish . . .’

Judges:

Wills J

Citations:

[1892] 56 JP 517

Jurisdiction:

England and Wales

Cited by:

Cited – Todd, Bradley v The Secretary of State for Environment Food and Rural Affairs Admn 22-Jun-2004
Application was made to quash an order modifying the Council’s definitive map of public rights of way.
Held: Before the Secretary of State could confirm a Council’s modification of a right of way shown on the definitive map, where that . .
Approved – Moser v Ambleside Urban District Council CA 1925
Atkin LJ said: ‘It has been suggested that you cannot have a highway except insofar as it connects two other highways. That seems to me that too wide a proposition. I think you can have a highway leading to a place of popular resort even though when . .
Cited – Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs and Another Admn 19-Jul-2012
The court was asked: ‘can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?’ A path had been registered over part of te claimant’s land, but with no . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 May 2022; Ref: scu.199323

In re Lucas and Chesterfield Gas and Water Board: CA 1909

Land suitable for construction of a reservoir was the subject of a compulsory purchase for that purpose. The circumstances made it very unlikely that anyone other than the Water Board would have wanted, or been able, to construct the reservoir and exploit the water collected in it. In these circumstances, and bearing in mind the ‘value to the owner’ principle, could the site’s suitability for use as a reservoir enhance its value to the owner for which the Water Board should pay?
Held: When assessing compensation on the compulsory purchase of land, the value to the owner, as distinct from the value to the purchaser, is ‘to be estimated as it stood before the grant of the compulsory powers’. This was an absolute rule. ‘The owner is only to receive compensation based upon the market value of his lands as they stood before the scheme was authorized by which they are put to public uses.’ Where the special adaptability of land gives the land a special value which exists only for a particular purchaser with compulsory powers, that value cannot be taken into consideration when fixing the price. It is otherwise where the special value exists also for other possible purchasers so as to create a real though limited market for that special value.
Fletcher Moulton LJ had a restrictive approach: ‘The scheme which authorises the new reservoir only entitles the owner of the land to receive as compensation the value of the land unenhanced by that scheme, and, unless its situation and peculiarities create a market for it as a reservoir site for which other possible bidders exist, I do not think that the single possible purchaser that has obtained parliamentary powers can be made to pay a price based on special suitability merely by reason of the fact that it was easy to foresee that the situation of the land would lead to compulsory powers being some day obtained to purchase it.’

Judges:

Fletcher Moulton LJ, Vaughan Williams LJ

Citations:

[1909] 1 KB 16

Jurisdiction:

England and Wales

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 . .
Disapproved in part – Raja Vyricherla Narayana Gajapathiraju v Revenue Divisional Officer, Vizagapatam PC 23-Feb-1939
Land adjoining a harbour at Vizagapatam which at that time was malarial was to be valued for compulsory purchase. The land contained a spring of clean water. The only potential purchaser of the special adaptability of the land as a water supply was . .
Adopted – Cedars Rapids Manufacturing and Power Co v Lacoste PC 1914
Land at the St Lawrence river was to be valued for a compulsory purchase.
Held: Value does not mean the value of ‘the realized undertaking as it exists in the hands of the undertaker’. It means the price which possible undertakers would give. . .
Applied – Fraser v City of Fraserville PC 1917
One ground on which the arbitrators’ valuation award on a compulsory purchase, was set aside was that, in valuing the falls of a river and adjacent land acquired for electricity generation purposes, the arbitrators had taken into account the . .
Cited – Earl Cadogan v Pitts and Wang; Similar HL 10-Dec-2008
The House considered the basis of valuation on an acquisition of the freehold reversion of a lease under the 1967 Act of the three elements, the rent, vacant possession after the lease, and the marriage or hope value of the two interests when . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 06 May 2022; Ref: scu.196511

Fraser v City of Fraserville: PC 1917

One ground on which the arbitrators’ valuation award on a compulsory purchase, was set aside was that, in valuing the falls of a river and adjacent land acquired for electricity generation purposes, the arbitrators had taken into account the enhanced value emanating from a reservoir being built by the acquiring authority higher up the river.
Held: The question of what is the scheme is a question of fact. ‘ . . . the value to be ascertained is the value to the seller of the property in its actual condition at the time of expropriation with all its existing advantages and with all its possibilities, excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired . . .’

Judges:

Lord Buckmaster

Citations:

[1917] AC 187

Jurisdiction:

England and Wales

Citing:

Applied – In re Lucas and Chesterfield Gas and Water Board CA 1909
Land suitable for construction of a reservoir was the subject of a compulsory purchase for that purpose. The circumstances made it very unlikely that anyone other than the Water Board would have wanted, or been able, to construct the reservoir and . .
Cited – Cedars Rapids Manufacturing and Power Co v Lacoste PC 1914
Land at the St Lawrence river was to be valued for a compulsory purchase.
Held: Value does not mean the value of ‘the realized undertaking as it exists in the hands of the undertaker’. It means the price which possible undertakers would give. . .

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

Land, Damages

Updated: 06 May 2022; Ref: scu.196516

Cedars Rapids Manufacturing and Power Co v Lacoste: PC 1914

Land at the St Lawrence river was to be valued for a compulsory purchase.
Held: Value does not mean the value of ‘the realized undertaking as it exists in the hands of the undertaker’. It means the price which possible undertakers would give. This should be tested by the imaginary market which would have ruled if the land had been exposed for sale ‘before any undertakers had secured the powers, or acquired the other subjects which made the undertaking as a whole a realized possibility’, and ‘For the present purpose it may be sufficient to state two brief propositions: (1) The value to be paid for is the value to the owner as it existed at the date of the taking, not the value to the taker. (2) The value to the owner consists in all advantages which the land possesses, present or future, but it is the present value alone of such advantages that falls to be determined. Where, therefore, the element of value over and above the bare value of the ground itself (commonly spoken of as the agricultural value) consists in adaptability for a certain undertaking . . . the value . . . is merely the price, enhanced above the bare value of the ground which possible intended undertakers would give. That price must be tested by the imaginary market which would have ruled had the land been exposed for sale before any undertakers had secured the powers, or acquired the other subjects which made the undertaking as a whole a realised possibility.’

Judges:

Lord Dunedin

Citations:

[1914] AC 569

Jurisdiction:

England and Wales

Citing:

Adopted – In re Lucas and Chesterfield Gas and Water Board CA 1909
Land suitable for construction of a reservoir was the subject of a compulsory purchase for that purpose. The circumstances made it very unlikely that anyone other than the Water Board would have wanted, or been able, to construct the reservoir and . .

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 – Fraser v City of Fraserville PC 1917
One ground on which the arbitrators’ valuation award on a compulsory purchase, was set aside was that, in valuing the falls of a river and adjacent land acquired for electricity generation purposes, the arbitrators had taken into account the . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 06 May 2022; Ref: scu.196512