Category: Land

The King v Schir Johne Hay: SCS 6 Feb 1505

All landis halding of the King, utherwayis nor in fre burgage, ar haldin in blanche ferm, or in few ferm, or be service of ward and relief, or in name of pure and fre almonis. De quatuor mod. ten. ter. de Rege.
Item, Landis haldin be ony man, of ony superior or over-lord, reddendo servitia debita et consueta, the samin is understuid to be halden be service of ward and relief, except in his infeftment relation be maid ad formam et tenorem antiquae cartae; for in this cais the manner of halding of the saidis landis sould be reulit and understuid, conform to the halding contenit in the auld chartour, gif ony be

[1505] Mor 16558
Bailii

Scotland, Land

Updated: 06 January 2022; Ref: scu.554593

Lilias Borthwick v John Borthwick of Cruikston, Esq: HL 19 Mar 1731

Tailzie – An entail, containing prohibitory and irritant clauses de non contrahendo debitum, having been executed before the date of the act 1685, but not followed by infeftment until after it, and not recorded in terms of that act,-found not to debar the heir from granting bonds of provision to his younger children.

[1731] UKHL 1 – Paton – 53, (1731) 1 Paton 53
Bailii
Scotland

Land

Updated: 06 January 2022; Ref: scu.554552

Williams v Unit Construction Ltd: 1951

A company had acquired a building estate and had underleased four plots to Cubbin for 999 years. The underlessors arranged for the defendant company to build houses on the four plots. The defendant company covenanted with Cubbin to keep the adjacent road in repair until adopted. Cubbin granted a weekly tenancy of one house to the plaintiff without any express assignment of the benefit of the covenant. The plaintiff was injured owing to the disrepair of the road. She was held entitled to recover damages from the defendant for breach of the covenant.

(1951) 19 Conveyancer 262
England and Wales

Land

Updated: 06 January 2022; Ref: scu.670642

Bedford Land Investments Ltd, Regina (on The Application of) v Secretary of State for Transport and Another: Admn 3 Nov 2015

Application for judicial review of a decision by the defendant in a decision letter dated 3 December 2013 to refuse the claimant’s application for an award of costs against the interested party (IP). The costs relate to the claimant’s abortive expenditure in objecting to a Compulsory Purchase Order (CPO) and Side Roads Order (SRO) which the IP had made but subsequently withdrew.

Patterson DBE J
[2015] EWHC 3159 (Admin)
Bailii

Land, Local Government

Updated: 05 January 2022; Ref: scu.554286

Simon Lord Lovat v Sir James Mackenzie, of Roystoun, One of The Senators of The College of Justice; Roderick Mackenzie, Second Son of Alexander Mackenzie, Late of Fraserdale, and His Guardian; Mrs Emilia and Margaret Frasers: HL 13 Apr 1727

Donator of Esobeat competing with a Trustee – A father conveys his estates to a trustee for certain purposes; after the father’s death, the trustee sells part of his estates, and bond for the price is taken in the name of the trustee’s sons who of same date grants a back bond to the trustee, in terms of the father’s trust deed; the son is afterwards denounced for treason, and his escheat granted to a donator, but he subsequently grants an assignation to his father’s trustee, which, in a competition with the donator, is sustained.
Trustee – The creditors of a trustee could not affect the trust estate.
Competition of Creditors and Children – Certain creditors being preferred to a sum set apart for children’s provisions, the creditors are ordained, upon receiving payment, to convey their rights to the children, to enable them to operate relief on other subjects of the debtor.
Consent of Party – The donator who consented to a decree of preference to the children, having contended that this consent did not extend to the creditors, who were preferred to the children, and petitioned to be heard against them, the prayer is refused.

[1727] UKHL Robertson – 607, (1727) Robertson 607
Bailii
Scotland

Land

Updated: 05 January 2022; Ref: scu.554241

Chapman v Cripps and Others: 1862

The mere use by people of tracks in a wood, where they were free to wander about as they pleased, is not necessarily enough to show a dedication of such tracks to the public as public footways.

[1862] EngR 23 (B), (1862) 2 F and F 864
Commonlii
England and Wales

Land

Updated: 05 January 2022; Ref: scu.286189

James v Thomas: CA 23 Nov 2007

The claimant sought an interest in the property registered in the sole name of the respondent. The respondent had inherited a share in the property, and then bought out the interests of his siblings with support of a loan. The claimant had made no contribution to the purchase. She now appealed a finding that no constructive trust or estoppel arose from her long occupation and contributions and statements made, saying the court had no requirement to find a specific proportion to have been agreed.
Held: The appeal failed. While the judge may have erred in not recognising that an estoppel or constructive trust may arise in circumstances where the legal owner had assured the claimant that he or she has or will obtain a beneficial interest in the property, any error had not made a difference to the decision, and the facts found supported his judgment that no sufficiently clear assertion had been made.
Sir John Chadwick said: ‘It is said that, as a matter of law, the common intention may be formed at any time before, during or after the acquisition of the property; and that the common intention may be inferred from evidence of the parties’ conduct during the whole course of their dealings in relation to the property. For my part, I would accept each of those propositions of law
More pertinently, if the circumstances so demand, a constructive trust can arise some years after the property has been acquired by, and registered in the sole name of, one party who (at the time of the acquisition) was, beyond dispute, the sole beneficial owner: Gissing v Gissing [1971] AC 886, 901D-E, Bernard v Josephs [1982] Ch 391, 404E-F. But, as those cases show, in the absence of an express post-acquisition agreement, a court will be slow to infer from conduct alone that parties intended to vary existing beneficial interests established at the time of acquisition.’

Smith, Wilson LJJ, Sir John Chadwick
[2007] EWCA Civ 1212
Bailii
England and Wales
Citing:
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Bernard v Josephs CA 30-Mar-1982
The court considered the division of proceeds of sale of a house bought by an unmarried couple.
Held: Where the trusts for which a property was purchased have been concluded, the house should be sold.
Griffiths LJ said: ‘the fact that . .
Cited – Lissimore v Downing ChD 31-Mar-2003
The claimant asserted an estoppel in land registered in the name of the defendant.
Held: Unspecific statements made by the defendant that ‘she would never want for anything’, or that ‘he would take care of her’, or that ‘he had looked after . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .

Cited by:
Cited – Hopton v Miller ChD 31-Aug-2010
The parties had entered into partnership to open and run a restaurant, but without a formal agreement. They differed as to the values contributed by their respective efforts. After failures to disclose materials requested, the defendant we precluded . .
Cited – Williams v Lawrence and Another ChD 28-Jul-2011
The claimant, as trustee for the deceased’s insolvent estate, sought a declaration that a transfer of the deceased’s share in property made by the executors was void as being at an undervalue. The property was subject to a right of occupation in . .

Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 05 January 2022; Ref: scu.261561

Henein v Laffa: CA 16 Jun 2015

The claimant, the widower of the deceased renewed his application for leave to appeal against the rejection of his challenge to his late wife’s will, and whether a notice of severance had been vaildly served.

Sir James Munbyy P FD
[2015] EWCA Civ 700
Bailii
England and Wales

Wills and Probate, Land

Updated: 05 January 2022; Ref: scu.553846

Elizabeth Duchess Dowager of Hamilton and Brandon v James Duke of Hamilton and Brandon, and Alexander Gillies: HL 21 Jan 1723

Fiar and Life-renter – The Court of Session having found, that a fiar had the right to cut and sell woods growing on part of an estate, that was life-rented, the judgment is reversed.

[1723] UKHL Robertson – 443, (1723) Robertson 443
Bailii

Scotland, Land

Updated: 05 January 2022; Ref: scu.553794

Lovat v Emilia Lady Dowager of Lovat Mackenzie an Infant and Others: HL 1 Apr 1721

A disposition is made of an estate to one person in life-rent, and to others in fee, with the burden of payment of the grantor’s debts: in a competition between the grantee of the life-rent escheat of the life-renter, and the debtors of the grantor of the disposition, the Court found that these debts were real, and did affect the estate; but their judgment is reversed.
A grantor of a deed declares, that if children’s portions are not paid in his lifetime, persons whom he names may appoint a factor, after his death, to receive certain rents, and pay these portions: these portions were real debts affecting the estate

[1721] UKHL Robertson – 355
Bailii
Scotland

Land

Updated: 05 January 2022; Ref: scu.553669

The Commissioners and Trustees of The Forfeited Estates v James Duke of Hamilton and Brandon, A Minor, By His Curators and Commissioners: HL 26 Feb 1720

Thirlage – An act of parliament gives to subject superiors the forfeited estates of their vassals: the Earl of Linlithgow being attained, forfeited to the Duke of Hamilton a mill held of his Grace as superior; but the earl having thirled part of his estate, held of the Crown, to this mill, this thirlage was not forfeited to the Duke of Hamilton.

[1720] UKHL Robertson – 274, (1720) Robertson 274
Bailii

Scotland, Land

Updated: 05 January 2022; Ref: scu.553637

William Brown, Merchant In Edinburgh, and Andrew Ross, Master of The Woollen Manufactory At Musselburgh v Robert Earl of Morton: HL 3 Feb 1720

King’s annexed Property – A person, to whom part of the annexed property had been granted, creates a heritable security thereon: his grant is afterwards reduced, and the decree confirmed by an act of reannexation: an act of disannexation is subsequently made, and a new grant of part of the premises passed to the representative of the family of the original grantee, though not his heir: this does not revive the heritable security granted by him.

[1720] UKHL Robertson – 254, (1720) Robertson 254
Bailii
Scotland

Land

Updated: 05 January 2022; Ref: scu.553640

Laav Re 146 Burges Road: UTLC 10 Sep 2015

UTLC RESTRICTIVE COVENANT – discharge – modification – proposed development of second house on application land – whether restrictions obsolete under ground (a) – change of character of neighbourhood – grounds (aa) and (c) – whether compensation payable to original covenantee under section 84(1)(ii) – application to modify covenants granted under ground (aa) – Law of Property Act 1925 section 84

[2015] UKUT 448 (LC)
Bailii
Law of Property Act 1925 84(1)(ii)(aa)
England and Wales

Land

Updated: 05 January 2022; Ref: scu.553591

Johnston and Others v Tag Farnborough Airport Ltd: UTLC 15 Oct 2015

UTLC COMPENSATION – Land Compensation Act 1973 Part I – aerodrome – preliminary issues – runway or apron alterations – relevant date – estoppel – limitation – validity of claim notices – occupation by government department – whether alterations pursuant to a single planning permission but separated by five years a single ‘scheme’ – Johnston references dismissed – Dandy references proceed on limited grounds

[2015] UKUT 534 (LC)
Bailii
Land Compensation Act 1973
England and Wales

Land

Updated: 05 January 2022; Ref: scu.553598

Mohammed and Others v Newcastle City Council: UTLC 6 Oct 2015

UTLC COMPENSATION – compulsory purchase – interim decision – issues of fact – credibility of claimants’ evidence – whether leases genuine – whether multiple businesses – accounting evidence and tax returns – nature and extent of scheme – base year for claim – shadow period losses – injurious affection – disturbance – whether second relocation too remote – cost of works – personal time

[2015] UKUT 439 (LC)
Bailii
England and Wales

Land

Updated: 05 January 2022; Ref: scu.553599

Bluefoot Foods Ltd v Greater London Authority: UTLC 25 Sep 2015

UTLC COMPENSATION – compulsory purchase – Compulsory Purchase Act 1965 section 20 – food distributor in cold store facility – business extinguished – business tenancy and statutory compensation for determination of leasehold interest- veracity of accounts and other evidence – extinguishment of value of business determined at nil – agreed compensation for other items – compensation determined at andpound;102,533.40

[2015] UKUT 208 (LC)
Bailii
Compulsory Purchase Act 1965
England and Wales

Land

Updated: 05 January 2022; Ref: scu.553585

Hickman v Maisey: CA 16 Mar 1900

A racing tout used the public highway which crossed the plaintiff’s property to watch racehorses being trained on the plaintiff’s land. On a particular occasion he walked backwards and forwards on a portion of the highway 15 yards long for a period of about one and a half hours watching and taking notes of the trials of race horses on the plaintiff’s land.
Held: A man resting at the side of the road, or taking a sketch from the highway, would not be a trespasser. The defendant’s activities, however, fell outside ‘an ordinary and reasonable user of the highway’ and so amounted to a trespass.
Smith LJ said: ‘Unless what the defendant did comes within the ordinary and reasonable use of a highway as such and is therefore lawful, it is clear that it would be a trespass’.
Collins LJ (applying Esher’s judgment) ‘in modern times a reasonable extension has been given to the use of the highway as such . . The right of the public to pass and repass on a highway is subject to all those reasonable extensions which may from time to time be recognised as necessary to its exercise in accordance with the enlarged notions of people in a country becoming more populous and highly civilised, but they must be such as are not inconsistent with the maintenance of the paramount idea that the right of the public is that of passage.’

A L Smith, Collins, Romer LJJ
[1900] 1 QB 752, [1900] UKLawRpKQB 54
Commonlii
England and Wales
Citing:
Applied – Harrison v Duke of Rutland CA 8-Dec-1893
H used a public highway crossing the defendant’s land, to disrupt grouse-shooting upon the defendant’s land. He complained after he had been forcibly restrained by the defendant’s servants from doing so. The defendant justified his actions saying . .

Cited by:
Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited – Jones and Lloyd v Director of Public Prosecutions Admn 23-Jan-1997
The appellants had been peacefully protesting at Stonehenge. They were among others who refused to leave when ordered to do so under an order made by the police officer in charge declaring it to be a trespassory assembly under the 1986 Act. They . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 05 January 2022; Ref: scu.192189

Rylands v Fletcher: HL 1868

The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant was bound ‘sic uit suo ut non laedat alienum’. ‘The defendants, treating them as the owners or occupiers of the close on which the reservoir was constructed, might lawfully have used that close for any purpose for which it might in the ordinary course of the enjoyment of land be used; and if, in what I may term the natural user of that land, there had been any accumulation of water, either on the surface or underground, and if, by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained . . On the other hand if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land, – and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril; and, if in the course of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its passing away to the close of the plaintiff and injuring the plaintiff, then for the consequence of that, in my opinion, the defendants would be liable.’

Lord Cairns LC
(1868) LR 3 HL 330, [1868] UKHL 1
Bailii
England and Wales
Citing:
Appeal from – Rylands v Fletcher CEC 1865
Mr Fletcher’s Lancashire coal mine was flooded by the water from Mr Rylands’ mill reservoir in 1860-61.
Held: Mr Rylands was responsible. Blackburn J said: ‘We think that the true rule of law is, that the person who for his own purposes brings . .
Cited – Smith v Kenrick CCP 14-Feb-1849
Where there are two minings working adjacent land, each has the right to work his own mine, and to construct shafts in his own mine in whatever way he thinks fit, and even if this results naturally in damage to the neighbour’s mine, provided he is . .
Cited – Baird v Williamson 1863
The parties worked mines on adjacent land. Water flooded the plaintiff’s mine and he sought damages from the defendant.
Held: He was liable. The water from the defendant’s mine had been raised to a higher level by pumping (‘non-naturally’) and . .

Cited by:
Cited – Cambridge Water Company v Eastern Counties Leather Plc HL 9-Dec-1993
The plaintiffs sought damages and an injunction after the defendant company allowed chlorinated chemicals into the plaintiff’s borehole which made unfit the water the plaintiff itself supplied.
Held: The appeal was allowed. Liability under . .
Cited – Transco plc and Another v Stockport Metropolitan Borough Council CA 1-Mar-2001
A water pipe serving housing passed through an embankment. The pipe broke, and the escaping water led to the collapse of the bank to the expense of the applicants.
Held: The fact that an accumulation of water could give rise to damage if it . .
Cited – Thames Water Utilities Limited v Marcic CA 7-Feb-2002
The claimant owned land over which sewage and other water had spilled from the appellant’s sewage works. His claim having been dismissed under Rylands v Fletcher, and there being no statutory means of obtaining compensation, the judge was asked to . .
Cited – McKenna and Others v British Aluminum Ltd ChD 16-Jan-2002
Claimants began an action in nuisance and Rylands v Fletcher against the respondents. They sought to strike out the claim on the basis that some of the claimants did not have a sufficient interest in the land affected. The rule in Rylands v Fletcher . .
Cited – X v A, B, C ChD 29-Mar-2000
Trustees sought guidance from the court as to investment in land which might become a liability because of clean up costs associated with the Act when it came into force. Would the trustees have a lien over other property of the deceased to pay the . .
Cited – Green v The Right Honourable Lord Somerleyton and others CA 28-Feb-2003
The parties owned areas of marshland divided by a road. The claimant sought a declaration that the defendants had no right to allow floodwater to escape over his land from what he said was an artificial reservoir on the defendant’s land. The . .
Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Cited – Cambridge Water Company v Eastern Counties Leather Plc: Cambridge Water Company v Hutchings and Harding Ltd CA 19-Nov-1992
The defendants operated a plant using chlorinated solvent chemicals which, over a long period had seeped through the floor of their factory and into the chalk subsoil, eventually polluting the plaintiff’s water supply some mile and half away. The . .
Cited – Read v J Lyons and Co Ltd HL 1946
The plaintiff was employed by the Ministry of Defence, inspecting a weapons factory. A shell exploded injuring her. No negligence was alleged. The company worked as agent for the ministry.
Held: The respondents were not liable, since there had . .
Explained – Burnie Port Authority v General Jones Property Ltd 1994
(High Court of Australia) The court treated the rule in Rylands v Fletcher as absorbed by the principles of ordinary negligence. The majority were influenced by the difficulties of interpretation and application to which the rule had given rise, the . .
Explained – Ross v Fedden HL 1872
The defendant occupied premises above those of the plaintiff. Whilst the property was unattended, the water closet leaked, damaging the plaintiff’s goods on the ground floor. The waste pipe had been blocked by paper and there were other defects. . .
Cited – Leakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
Cited – RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985
The suggestion that the decision in Rylands v Fletcher had any place in Scots law is ‘a heresy which ought to be extirpated.’ . .
Applied – Attorney General v Cory Brothers and Co Ltd HL 1921
The defendant colliers placed waste from the mine in a huge heap. Rain cause the heap to slip, damaging nearby properties. the landslide in question was of what counsel described as an ‘enormous mass of rubbish’, some 500,000 tons of mineral waste . .
Cited – Rainham Chemical Works Ltd (in liquidation) and others v Belvedere Fish Guano Co Ltd HL 1921
At a time of war, a process was invented where picric acid was manufactured from dinitrophenol (DNP) and nitrate of soda. DNP had been used mainly for the manufacture of dyes, and was a stable compound which did not explode easily. It was not in . .
Cited – Perry v Kendricks Transport Ltd CA 1956
The Act gave a defence to liability for a fire which started accidentally, this did not cover a fire which started by negligence. . .
Cited – Shiffman v Order of St John of Jerusalem (Grand Priory in the British Realm of the Venerable Order of the Hospital) 1936
The plaintiff recovered damages for personal injuries under the rule in Rylands -v- Fletcher. . .
Cited – Miles v Forest Rock Granite Co (Leicestershire) Ltd 1918
. .
Distinguished – Carstairs v Taylor 1871
The plaintiffs were tenants of the ground floor of a building. The defendants occupied the top floor. A rat gnawed through a box in which rain water was collected from the roof, causing a leak into the plaintiff’s property, causing damage. No . .
Cited – Anderson v Oppenheimer CA 1880
The defendant owned a house in the City of London with different floors let to tenants. In the lease of the ground floor, he covenanted to allow the tenant ‘peaceably hold and enjoy the demised premises during the term without any interruption by . .
Cited – Rickards v Lothian PC 11-Feb-1913
The claim arose because the outflow from a wash-basin on the top floor of premises was maliciously blocked and the tap left running, with the result that damage was caused to stock on a floor below.
Held: The provision of a domestic water . .
Cited – Green v Chelsea Waterworks Co 1894
A water main belonging to a waterworks company, which had been authorized by Parliament to lay the main, burst. There had been no negligence on the part of the waterworks company. The claimants’ premises were flooded but the waterworks company was . .
Explained – Dunne v North Western Gas Board CA 1964
Works carried out by virtue of a statutory authority are a recognised exemption to liability under the rule in Rylands -v- Fletcher. The defendant’s liability in Rylands: ‘could simply have been placed on the defendants’ failure of duty to take . .
Cited – Nichols v Marsland CA 1-Dec-1876
Flood following heavy rain was not negligent
The defendant was the owner of a series of artificial ornamental lakes, which had existed for a great number of years, and had never previous to 18th June, 1872 caused any damage. On that day, however, after a most unusual fall of rain, the lakes . .
Cited – Hale v Jennings Bros 1938
The owner of the fairground was held to be responsible for a chair-o-plane which became detached from the roundabout, because the act of the man ‘fooling about on this device’ was: ‘just the kind of behaviour which ought to have been anticipated as . .
Cited – Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
Cited – Charing Cross Electricity Supply Co v Hydraulic Power Co 1914
A high pressure water main laid under a city street could constitute something dangerous brought onto the defendant’s land and which involved a risk of damaging the plaintiffs’ property. . .
Cited – Andreae v Selfridge and Co Ltd CA 1938
The plaintiff had a hotel. The rest of the island had been acquired by the defendant which was demolishing and rebuilding the other properties. The plaintiff complained, and the judge found, that by reason of the operations, which involved noise and . .
Cited – Goldman v Hargrave PC 13-Jun-1966
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would . .
Cited – Longhurst v Metropolitan Water Board HL 1948
Water had leaked from a main and disturbed paving stones in the highway. The water board had had no knowledge of or reason to suspect any danger to the public at the place in question.
Held: Affirming the Court of Appeal, since the board was . .
Cited – Allen v Gulf Oil Refining Ltd HL 29-Jan-1980
An express statutory authority to construct an oil refinery carried with it the authority to refine. It was impossible to construct and operate the refinery upon the site without creating a nuisance. Lord Wilberforce said: ‘It is now well settled . .
Cited – Delaware Mansions Limited and others v Lord Mayor and Citizens of the City of Westminster HL 25-Oct-2001
The landowner claimed damages for works necessary to remediate damage to his land after encroachment of tree roots onto his property.
Held: The issue had not been properly settled in English law. The problem was to be resolved by applying a . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Hunter and Others v Canary Wharf Ltd QBD 20-Dec-1994
The plaintiff made two claims arising from the construction works involvd in the Canary Wharf development. First that the building now prevented her TV signal reception, and second that the works had released substantial volumes of dust so as to . .
Cited – Hunter and Others v Canary Wharf Ltd; Same v London Docklands Development Board CA 13-Oct-1995
A release of dust over neighbouring properties can be a nuisance but not a blocking of TV reception signals. No action lay in private nuisance for interference with television caused by the mere presence of a building. ‘A substantial link between . .
Cited – Gilbert and Another (T/A Woods Farm Christmas Trees) v British Waterways Board TCC 15-Dec-2005
The respondent was responsible for a canal which overflowed onto the claimant’s land causing damage to the claimant’s business providing christmas trees. The defendant criticised the lack of accounting records.
Held: The claimants operated . .
Mentioned – Bedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Cited – Home Brewery v William Davis and Co (Leicester) Ltd QBD 1986
The defendant, owner of the higher land, filled in a disused clay pit, and squeezed out water from an osier bed with the result that more water flowed onto the neighbouring plaintiff’s land causing damage. The plaintiff sought damages and an . .
Cited – Hamilton v Papakura District Council and Watercare Services Ltd PC 28-Feb-2002
(New Zealand) The claimants sought damages. The water authority had put in the water supply herbicides which damaged the crops they sought to grow, and which were watered from the supply. The plants were particularly sensitive to such chemicals.
Cited – Willis and Another v Derwentside District Council ChD 10-Apr-2013
The claimants sought damages alleging the escape of noxious CO2 gas from the defendant’s neighbouring land. The gas originated from old coal workings.
Held: There had come to be a liability falling in the defendant from 2006. Its delay in . .
Cited – Stannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
Cited – Musgrove v Pandelis CA 2-Jan-1919
The plaintiff ((M) rented first floor rooms above the defendant’s garage. The defendant’s employee spilt petrol which was lit, and negligently failed to control it causing a fire, damaging the plaintiff’s rooms.
Held: The Act did not provide a . .
Cited – Mason v Levy Autoparts of England Ltd 1967
McKenna J said that there were not three separate routes to liability at law for the escape of fire from premises to a neighbour’s property, but one. A householder was liable for the escape of his fire (ignis suus): no additional danger was needed . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .

Lists of cited by and citing cases may be incomplete.

Land, Nuisance

Leading Case

Updated: 05 January 2022; Ref: scu.179681

Sir John Schaw, of Greenock, Bart v Dame Margaret Schaw, Alias Houston, and Sir John Houston, Bart Her Husband: HL 10 Mar 1718

Tailzie – A father infeft in an estate in life-rent, and a son infeft in fee, jointly entail the estate in the son’s contract of marriage, with prohibitory, irritant, and resolutive clauses, and with a proviso, that the father and son should jointly have power to alter; this entail was insert in the register of tailzies upon the joint supplication of the father and son, but no resignation was made nor infeftment taken thereon: the irritancies and clauses not to alter were binding upon the son (after the father’s death) even supposing the substitution were gratuitous.

(1718) Robertson 203, [1718] UKHL Robertson – 203
Bailii

Scotland, Land

Updated: 04 January 2022; Ref: scu.553508

The Gubernators of Heriot’s Hospital, and James Young Their Treasurer v Robert Hepburn of Bearford: HL 2 Jun 1715

Kirk Patrimory – The superiority of certain church lands, which were purchased from the crown for an onerous consideration, and which were specially excepted in the act 1633, c. 13. ‘anent regalities of erection,’ part of the general re-annexing acts, found to be in such purchasers, where the vassal had taken charters and infeftments from the subject superior for near 100 years.

[1715] UKHL Robertson – 118, (1715) Robertson 118
Bailii

Scotland, Land

Updated: 04 January 2022; Ref: scu.553483

John Murray of Conheath v James Murray His Younger Brother, Trustee for Elizabeth Maxwell Their Mother: HL 28 Jul 1715

Fiar – The proprietor of an estate, burdened with apprisings, dying, leaves two lifters, whose husbands enter into a submission for themselves, and as taking burden upon them for their wives, with a person who had or appeared to have right to some of these apprisings; by the decreet arbitral, they are decreed to be conveyed to the husbands and their wives, the husbands paying the price; the wives were fiars of these apprisings, and not the husbands

[1715] UKHL Robertson – 144, (1715) Robertson 144
Bailii
Scotland

Land, Wills and Probate

Updated: 04 January 2022; Ref: scu.553486

Menzies v Menzies, Sisters and Muir Merchant In Aberdeen: HL 25 Jul 1715

Sale – A person who had purchased lands at a public sale, at 20 years purchase of a proved rental, afterwards claims deductions; 1st, Because the teinds were held by a tack from the College of Aberdeen then near expired; 2d, Because, as he alleged, the rental was too highly stated by one Chalder; 3d, Because he was kept out of his purchase for six years, during which time the person in possession only accounted for the rents, which were less than the interest the price; 4th, A deduction of certain expences he had been put to, in adjusting the debts due by the estate and in the person of the last possessor thereof. The Court having refused these deductions, and allowed the fetters 30 l. of expences, the judgment is affirmed.
In this case the purchaser had been employed as agent to conduct the sale, proof of rental, andc.

[1715] UKHL Robertson – 139, (1715) Robertson 139
Bailii
Scotland

Land

Updated: 04 January 2022; Ref: scu.553484

James Don Esq; v Sir Alexander Don of Newton: HL 14 Jul 1713

An estate is entailed by a person to himself in liferent and to his eldest son and the heirs male of his body whom failing to the entailer himself, whom failing to his second and third sons, and the heirs male of their bodies andc. whom all failing to the father’s nearest heirs and assignees: another estate is entailed to the second son of the former entailer and the heirs male and female of his body, whom failing to the said former entailer and his heirs male of tailzie and provision in the former entail; after failure of the institute in the second entail and the heirs male and female of his body, the heir male of the first entailer succeeds to the estate contained in the second entail.
Tailzie
An heir of entail prohibited from alienating gratuitously, where the prohibitory, irritant, and resolutive clauses, were referred to as contained in another entail.
At making an entail the institute reconveys to his father an estate formerly settled upon him, and he and his wife discharge an obligation upon the father by their contract of marriage; the institute, nevertheless, cannot gratuitously alter.

[1713] UKHL Robertson – 76, (1713) Robertson 76
Bailii

Land, Trusts, Scotland

Updated: 04 January 2022; Ref: scu.553468

John Falconer Esq and Others, Creditors of Thomas Craig, Late of Riccarton, Esq Deceased v John Mushet and Others, Creditors of Robert Craig of Riccarton: HL 3 Jul 1714

Tailzie.- It being found that, in respect an entail, with prohibitory clauses, contained no irritancy of the right of the contravener, the debts of the heir in possession did equally affect the estate with the debts of his predecessors; the judgment is reversed.
An entail executed prior to the act 1685 sustained, though objection made that it was not registered in terms of that act.
Construction.- The Court of Session having found that the irritancy of the contravener’s right in the entail of Riccarton did only respect the heirs female, and not the heirs male; their judgment is reversed.

[1714] UKHL Robertson – 110, (1714) Robertson 110
Bailii
Scotland

Land

Updated: 04 January 2022; Ref: scu.553475

Hugh Wallace of Ingliston v Sir Alexander Hope of Kerse, Bart: HL 3 Jun 1713

Jus Exigendi. – A Lady’s jointure being secured on certain heritable debts but no infeftment taken, the husband’s estate is forfeited during the Usurpation, but being afterwards restored to his heir, reserving the claims of the widow and others, and ordering those to refund, who had received grants out of the estate; the assignee of the widow’s executrix had no jus exigendi of the sums received by these grants.
Subject Forfeiture under Cromwell’s Usurpution.- The Earl of Forth, and Bramford being forfeited, and his estate seized, a bona fide creditor of the then government, is paid his debt by a grant out of the Earl’s estate: on the restoration, the Court of Session found that the heir of such creditor was obliged to refund, but their judgment was reversed in the parliament of Scotland.
This last head is only mentioned incidentally but not decided in this case.

[1713] UKHL Robertson – 91, (1713) Robertson 91
Bailii

Scotland, Land

Updated: 04 January 2022; Ref: scu.553464

Hanbury-Tenison v Monmouthshire County Council: UTLC 2 Dec 2014

UTLC COMPENSATION – compulsory purchase – preliminary issue – relocation of town centre livestock market – acquisition of shooting rights over land for use as site of new market -application of Pointe Gourde principle – whether a commercial developer would have taken the same steps but for the acquiring authority’s scheme.

[2014] UKUT 531 (LC)
Bailii
England and Wales

Land

Updated: 04 January 2022; Ref: scu.552350

Portland Stone Firms Ltd and Another v Dorset County Council: UTLC 4 Dec 2014

UTLC COMPENSATION – preliminary issues – Town and Country Planning Act 1990 ss. 97 and 107 – basis for calculation of compensation – 1951 planning permission for mining on Portland – permission becoming subject to procedure for the review of old mineral planning permissions (ROMP) under Environment Act 1995 Sched. 13 – designation of part of site as a Special Area of Conservation under Conservation (Natural Habitats etc) Regulations 1994 – in consequence compensating authority making a modification order under s. 97 of 1990 Act – whether compensation to be assessed taking into account fact that at the valuation date planning permission already subject to ROMP procedures

[2014] UKUT 527 (LC)
Bailii
Town and Country Planning Act 1990 97
England and Wales

Land, Planning

Updated: 04 January 2022; Ref: scu.552354

John v London Borough of Southwark: UTLC 9 Dec 2014

UTLC COMPENSATION – compulsory purchase – valuation of maisonette – use as comparables of open market sales on estate subject to CPO – whether affected by blight – use of settlements – Delaforce effect – use of off-estate comparables – surveyor’s fees – disturbance

[2014] UKUT 538 (LC)
Bailii
England and Wales

Land

Updated: 04 January 2022; Ref: scu.552351

Cook and Another Re: 21 Shawfield Park: UTLC 19 Dec 2014

UTLC RESTRICTIVE COVENANT – discharge or modification – dwellinghouse – restrictions preventing erection of building and any additions, alterations, fences and outbuildings without Vendor’s consent – application to discharge or modify restrictions to permit implementation of planning permission to demolish existing two storey dwelling and replace with larger house – whether requirement for consent extended to original Vendor’s successors in title – if consent of original Vendor only required, whether restrictions absolute or obsolete following her death – whether changes in character of neighbourhood rendered restrictions obsolete – whether restrictions secured practical benefits of substantial value or advantage – whether discharge or modification would cause injury – amount of compensation payable in event of discharge or modification – application for discharge granted – held restrictions obsolete – Law of Property Act 1925 s84(1)(a),(aa) and (a)

[2014] UKUT 528 (LC)
Bailii
Law of Property Act 1925 84(1)(a) 84(1)(aa)
England and Wales

Land

Updated: 04 January 2022; Ref: scu.552348

Surtees and Another v United Utilities Water Plc: UTLC 9 Jul 2015

UTLC COMPENSATION – water – laying of underground water main on private land – compensation under Schedule 12 to Water Industry Act 1991 – crop loss – consequential losses – reinstatement – fees on Ryde’s Scale – inconvenience – compensation determined at andpound;5,886.16

[2015] UKUT 384 (LC)
Bailii
Water Industry Act 1991
England and Wales

Land

Updated: 04 January 2022; Ref: scu.552323

Trailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature: QBD 6 Feb 2004

The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human rights.
Held: The procedures did allow some development subject to controls. It was not right to view environmental protections as of lesser importance than other social values: ‘nature conservation interests and SSSIs are an important aspect of what can be seen as social policy.’ The legislation and arrangemnts for compensation were compliant.

The Honourable Mr Justice Ouseley
[2004] EWHC 153 (Admin), Times 19-Feb-2004
Bailii
Wildlife and Countryside Act 1981 29 30 31 32
England and Wales
Citing:
Cited – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
Cited – Fisher and Another v English Nature Admn 4-Jul-2003
The claimants were trustees of land. The Respondent had notified the Secretary of State that they considered that part of the land satisfied the criteria to be certifed as being of special scientific interest. They now intended to confirm the . .
Cited – Allan Jacobsson v Sweden ECHR 25-Oct-1989
‘According to the Court’s case law, this provision comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property; the . .
Cited – Oerlemans v The Netherlands ECHR 27-Nov-1991
Land was designated as ‘a protected natural site’, the effect of which was that agricultural activities could continue but that if the owner wished to alter or intensify the use of the land or to make certain changes in agricultural practices, . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Secretary of State for the Home Department v International Transport Roth Gmbh and others CA 22-Feb-2002
The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The . .
Cited – Baner v Sweden ECHR 1989
The applicant owned land with lakes which were fished by his household and employees; the public were not allowed to fish. New legislation permitted licence-free fishing by everyone. Many more people came to the beaches and fished the lakes; there . .
Cited – Tre Traktorer Aktiebolag v Sweden ECHR 7-Jul-1989
An alcohol licence for a restaurant was withdrawn with immediate effect because of financial irregularities, with the result that the restaurant business collapsed.
Held: ‘The government argued that a licence to sell alcoholic beverages could . .
Cited – S v France ECHR 1990
The Commission, dealing with admissibility, pointed out that noise nuisance could be so severe as to amount to a partial expropriation where it rendered a property unsaleable or unusable, severely affecting its value. Where substantial compensation . .
Cited – Fredin v Sweden ECHR 18-Feb-1991
A gravel pit licence was revoked without compensation pursuant to legislation brought in after the owner had acquired the pit but before it had begun to exploit it. The actual revocation took place after the pit had been exploited for a number of . .
Cited – Chassagnou and Others v France ECHR 29-Apr-1999
A law permitted local authorities to oblige landowners to transfer hunting rights over private land to approved hunting associations. The landowners could not prevent hunting on their property. Landowners so affected were made members automatically . .

Cited by:
Appeal from – Trailer and Marina (Leven) Ltd, Regina (ex parte) v Secretary of State for the Environment, Food and Rural Affairs and Another CA 15-Dec-2004
The claimant sought a declaration that the 1981 Act, as amended, interfered with the peaceful enjoyment of its possession, namely a stretch of canal which had been declared a Site of Special Scientific Interest, with the effect that it was unusable. . .

Lists of cited by and citing cases may be incomplete.

Land, Human Rights

Updated: 04 January 2022; Ref: scu.192663

Trailer and Marina (Leven) Ltd, Regina (ex parte) v Secretary of State for the Environment, Food and Rural Affairs and Another: CA 15 Dec 2004

The claimant sought a declaration that the 1981 Act, as amended, interfered with the peaceful enjoyment of its possession, namely a stretch of canal which had been declared a Site of Special Scientific Interest, with the effect that it was unusable. It had come to be a habitat for wildlife, and the order prevented the claimant using the canal for leisure purposes.
Held: Where the interference was short of an expropriation, but was a substantial interference in the use of property, the court had to find a fair balance between private rights and the public interest. The court had to give appropriate deference to the decisions of the legislature. Provided the legislature thought it right to interfere with use right without compensation, a fair balance would have been struck. The Act had been amended to take away compensation rights. The Act was not inherently incompatible with property rights. It did not prevent all use and was not a disguised expropriation.

Lord Phillips Of Worth Matravers MR, Lord Justice Sedley and Lord Justice Neuberger
[2004] EWCA Civ 1580, Times 28-Dec-2004
Bailii
Wildlife and Countryside Act 1981, European Convention on Human Rights A1P1
England and Wales
Citing:
Appeal from – Trailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature QBD 6-Feb-2004
The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human . .
Cited – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Papamichalopoulos and Others v Greece ECHR 24-Jun-1993
Expropriation notices, which were eventually withdrawn, constituted neither deprivation of property nor control of use, but ‘The fact that the permits fell within the ambit of neither of the second sentence of the first paragraph nor of the second . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Allan Jacobsson v Sweden ECHR 25-Oct-1989
‘According to the Court’s case law, this provision comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property; the . .
Cited – Southern Water Authority v Nature Conservancy Council HL 9-Sep-1992
That a Water Authority was digging a ditch was not a sufficient connection with the land to make them occupiers and capable of committing an offence as occupiers. The statutory provisions were toothless for ‘it needs only a moment to see that this . .
Cited – Baner v Sweden ECHR 1989
The applicant owned land with lakes which were fished by his household and employees; the public were not allowed to fish. New legislation permitted licence-free fishing by everyone. Many more people came to the beaches and fished the lakes; there . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Mellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
Cited – S v France ECHR 1990
The Commission, dealing with admissibility, pointed out that noise nuisance could be so severe as to amount to a partial expropriation where it rendered a property unsaleable or unusable, severely affecting its value. Where substantial compensation . .

Cited by:
Cited – Mott, Regina (on The Application of) v The Environment Agency and Another Admn 13-Feb-2015
The claimant challenged new conditions imposed on licences to operate his salmon fishery in the Severn Estuary, which operated to defeat his tenancy of the fishery.
Held: The request for review succeeded. The decisions to impose the catch . .
Cited – Mott, Regina (on The Application of) v Environment Agency and Another CA 17-Jun-2016
The applicant challenged restrictions on salmon fishing imposed by the respondent. At first instance they were held to be irrational, and the Agency appealed.
Held: The Regulations were not irrational and that element of the appeal succeeded, . .
Cited – Mott, Regina (on The Application of) v Environment Agency SC 14-Feb-2018
The Court considered the legality under the European Convention on Human Rights of licensing conditions imposed by the Environment Agency restricting certain forms of salmon-fishing in the Severn Estuary. The claimant operated a licensed putcher . .

Lists of cited by and citing cases may be incomplete.

Land, Human Rights

Updated: 04 January 2022; Ref: scu.220353

Commercial Union Assurance Co Ltd v Waddell and Another: HL 4 Apr 1919

The reddendo of a feucontract by which certain areas of building ground were conveyed stipulated for a feuduty payable at two terms in the year, Whitsunday and Martinmas, commencing the first payment at a certain date, and then provided-‘And further, to pay . . a duplicand of the said . . feuduty at the termination of every period of twenty years,’ and it was declared that when sufficient buildings were erected to adequately secure ‘the cumulo feuduty and composition’ the vassals should be entitled to allocate ‘the cumulo feuduty and duplication thereof’ with the approval of the superiors. Held ( dis. Lords Finlay and Atkinson) that the sum payable to the superior in every twentieth year as duplicand was twice the amount of the feuduty for that year in addition to the feuduty for that year. Authorities examined.

Lord Buckmaster, Lord Finlay, Lord Dunedin, and Lord Atkinson
[1919] UKHL 320, 56 SLR 320
Bailii
Scotland

Land

Updated: 04 January 2022; Ref: scu.632773

Kreglinger v New Patagonia Meat and Cold Storage Co Ltd: HL 20 Nov 1913

The appellants sought to enforce an option granted them under an agreement by the respondents in consideration for a loan on the security of a mortgage. The loan having been repaid prior to the expiry of the option, the respondents declined to further implement the agreement, on the ground that the option granted to the appellants was of the nature of a collateral advantage limiting the debtor’s right of redemption.
Held that the stipulation in the agreement did not limit the right of redemption, and was therefore valid.
Observed per Lord Parker-There is now no rule in equity which precludes a mortgagee from stipulating for any collateral advantage, provided it is not either (1) unfair and unconscionable, or (2) in the nature of a penalty clogging the equity of redemption, or (3) inconsistent with the contractual and equitable right to redeem.
Observed per Lord Chancellor-The same general principles apply to a floating charge (vide De Beers, Limited v. British South Africa Company, 1912 A.C. 52, where there are dicta to the contrary).
Observations per Lord Chancellor on ‘the true limits of the use of authority.’

Lord Chancellor (Viscount Haldane), Earl of Halsbury, Lords Atkinson, Mersey, and Parker
[1913] UKHL 843, 51 SLR 843
Bailii
England and Wales

Contract, Land

Updated: 04 January 2022; Ref: scu.632759

Port of London Authority v Devere and 7 Others – 0733-0755: LRA 27 Feb 2013

LRA Rivers, Waterways and Foreshore – Trial of a preliminary issue as to whether the Applicant can establish documentary title to part of the bed and foreshore of the River Thames; the ‘ad medium filum’ rule; true construction of the words ‘in front of or immediately adjacent to’; Port of London Act 1908, sections 1, 7; Port of London Act 1912; Port of London Act 1968, section 212, and Schedule 11; Thames Conservancy Act 1857, sections 50, 51; Thames Conservancy Act 1894, sections 58, 59; Port of London (Consolidation) Act 1920, section 7; Crown Lands Act 1702, section 5; Crown Lands Act 1853, section 5; Crown Lands Act 1829, section 8; Law of Property Act 1925, section 62(3); Poor Law Amendments Act 1868, section 27;

[2013] EWLandRA 2011 – 0733-0755
Bailii
England and Wales

Registered Land, Land

Updated: 03 January 2022; Ref: scu.550827

Woolway v Mazars: SC 29 Jul 2015

The Court was asked how different storeys under common occupation in the same block are to be entered in the rating list for the purpose of non-domestic rating. In this case the firm’s two offices were in the same building, but the connection between them was only by way of a communal lift.
Held: The valuation officer’s appeal succeeded. The two offices were separate heraditaments.
Lord Neuberger said: ‘I derive from these decisions three broad principles relevant to cases like this one where the question is whether distinct spaces under common occupation form a single hereditament. First, the primary test is, as I have said, geographical. It is based on visual or cartographic unity. Contiguous spaces will normally possess this characteristic, but unity is not simply a question of contiguity, as the second Bank of Scotland case illustrates. If adjoining houses in a terrace or vertically contiguous units in an office block do not intercommunicate and can be accessed only via other property (such as a public street or the common parts of the building) of which the common occupier is not in exclusive possession, this will be a strong indication that they are separate hereditaments. If direct communication were to be established, by piercing a door or a staircase, the occupier would usually be said to create a new and larger hereditament in place of the two which previously existed. Secondly, where in accordance with this principle two spaces are geographically distinct, a functional test may nevertheless enable them to be treated as a single hereditament, but only where the use of the one is necessary to the effectual enjoyment of the other. This last point may commonly be tested by asking whether the two sections could reasonably be let separately. Third, the question whether the use of one section is necessary to the effectual enjoyment of the other depends not on the business needs of the ratepayer but on the objectively ascertainable character of the subjects. The application of these principles cannot be a mere mechanical exercise. They will commonly call for a factual judgment on the part of the valuer and the exercise of a large measure of professional common sense. But in my opinion they correctly summarise the relevant law. They are also rationally founded on the nature of a tax on individual properties. If the functional test were to be applied in any other than the limited category of cases envisaged in the second and third principles, a subject (or in English terms a hereditament) would fall to be identified not by reference to the physical characteristics of the property, but by reference to the business needs of a particular occupier and the use which, for his own purposes, he chose to make of it.’

Lord Neuberger, President, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Gill
[2015] UKSC 53, [2015] 1 AC 1862, [2016] 1 All ER 299, [2015] WLR(D) 353, [2015] 3 WLR 386, UKSC 2013/0117
Bailii, WLRD, Bailii Summary, SC, SC Summary
England and Wales
Citing:
At UTLC – Tower Bridge House, Re UTLC 11-Jun-2012
UTLC RATING – hereditament – whether two floors in modern office block to be entered as single hereditament though separated by other floors – held they were – valuation – end allowance – whether allowance to be . .
Appeal from – Woolway (Valuation Officer) v Mazars Llp CA 17-Apr-2013
The valuation officer appealed against a decision to list an office block at issue as a single heraditament. . .
Cited – Bank of Scotland v Assessor for Edinburgh 1890
(Lands Valuation Appeal Court) The court considered the rating applicable where several banks retained nearby properties for the occupation of its staff. There were three categories of residential premises: (i) dwellings which were in buildings . .
Cited – Bank of Scotland v Assessor for Edinburgh 1891
(Lands Valuation Appeal Court) The Court considered the appropriate entry for property contiguous with a bank, but with no interconnection, the house being held for the occupation of bank employees.
Held: Lord Wellwood repeated his view that . .
Cited – Midlothian Assessor v Buccleuch Estates Ltd 1962
(Lands Valuation Appeal Court) The landowner had several parcels of woodland and sawmills. They were on different sites, but worked together as a single business.
Lord Kilbrandon observed: ‘It has never yet been admitted that you can have a . .
Cited – Farmer and Another v Buxted Poultry Ltd HL 10-Mar-1993
Buildings which were in fact far apart, could not be treated as being ‘occupied together with’ as agricultural buildings for rating purposes. . .
Cited – Burn Stewart Distillers plc v Lanarkshire Valuation Joint Board 2001
(Lands Tribunal for Scotland) Premises under common occupation but situated on opposite sides of a main road constituted two hereditaments: ‘We consider that the emphasis on the geographical test is an aspect of recognition that lands and heritages . .
Not approved – Burn Stewart Distillers plc v Lanarkshire Valuation Joint Board 2001
(Lands Tribunal for Scotland) Premises under common occupation but situated on opposite sides of a main road constituted two hereditaments: ‘We consider that the emphasis on the geographical test is an aspect of recognition that lands and heritages . .
Cited – British Railways Board v Hopkins (Valuation Officer) LT 1981
Different storeys under common occupation as constituting a single hereditament, whether they were contiguous or not. . .

Lists of cited by and citing cases may be incomplete.

Rating, Land

Updated: 03 January 2022; Ref: scu.550797

Regina v Secretary of State for Trade and Industry and Northern Electric Plc ex parte Wolf: Admn 21 Aug 1997

The landowner wanted to terminate a wayleave agreement.

Sedley J
[1997] EWHC Admin 782
England and Wales
Citing:
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .

Lists of cited by and citing cases may be incomplete.

Land, Utilities

Updated: 03 January 2022; Ref: scu.137727

Parmar and Others v Upton: CA 22 Jul 2015

The parties disputed the application of the hedge and ditch rule in settling their boundary. The appellant wished to have reliance placed upon evidence only discovered after trial.
Held: The appeal failed. The Judge was, notwithstanding the fresh evidence, still correct in his application of the hedge and ditch rule as decisive of the boundary dispute before him.

Arden, Ryder, Briggs LJJ
[2015] EWCA Civ 795
Bailii
England and Wales
Citing:
Cited – Vowles v Miller 9-Jul-1810
Lawrence J said: ‘The rule about ditching is this. No man, making a ditch, can cut into his neighbour’s soil, but usually he cuts it to the very extremity of his own land: he is of course bound to throw the soil which he digs out, upon his own land; . .
Cited – Alan Wibberley Building Ltd v Insley CA 12-Nov-1997
Where adjoining fields are separated by a hedge and a ditch, who owns the ditch?
Held: The old presumption as to the location of a boundary based on the layout of hedges and ditches is irrelevant where the conveyance was by reference to an OS . .
Cited – Alan Wibberley Building Ltd v Insley HL 24-Mar-1999
The parties disputed ownership of a strip of land between a garden and a farm. The land was registered. There was a hedge and a ditch along the disputed boundary, it had been conceded in the Court of Appeal that a conveyance of land on the hedge . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 January 2022; Ref: scu.550497

Bagum v Hafiz and Another: CA 22 Jul 2015

The land owner appealed from an order of the court as to land held under a co-ownership arrangement between three people. The order was for the sale of the property with the first option being given for the purchase of the property. It was said that the court had no jurisdiction to make such an order under the 1996 Act.
Held: The judge had been correct to make the order and it was within the wide discretion given by the Act.

Lord Dyson MR, Briggs, Bean LJJ
[2015] EWCA Civ 801, [2015] WLR(D) 329, [2015] 3 WLR 1495, [2016] Ch 241, [2015] Fam Law 1192, [2015] CP Rep 44, [2015] WTLR 1303
Bailii, WLRD
Trusts of Land and Appointment of Trustees Act 1996
England and Wales

Trusts, Land

Updated: 02 January 2022; Ref: scu.550492

Santander (UK) Plc v Parker: CANI 16 Jun 2015

Appeal by Mr Parker against the judgment dismissing Mr Parker’s appeal against the Order of Master Bell refusing a stay on possession by Santander (UK) PLC of the appellant’s dwelling house.
Held: A promissory note was equivalent to cash, but only if backed by assets to pay on it. The application was quite without merit.

Morgan LCJ, Coghlin LJ and Gillen LJ
[2015] NICA 41
Bailii
Administration of Justice Act 1973 8, Bills of Exchange Act 1882 83(1)
Citing:
Cited – National and Provincial v William and Humphrey 1996
Girvan J said: ‘If a mortgagor declines to put any material before the court which could lay a basis for the court exercising its powers under s36 the mortgagee would be entitled to his remedy based on his clear contractual rights under the . .
Cited – Wirth v Weigel Leygonie and Co Ltd CA 1939
Du Parcq LJ said: ‘I doubt whether a promise to pay to a man or to somebody else, who may be his creditor or debtor is a promissory note.’ . .
Cited – Electricity Corporation of New Zealand Ltd v Fletcher Challenge Energy Ltd 10-Oct-2001
Court of Appeal of New Zealand
Held: ‘The court has an entirely neutral approach when determining whether the parties intended to enter into a contract. Having decided that they had that intention, however, the court’s attitude will change. It . .
Cited – Zinda v Bank of Scotland Plc CA 23-Jun-2011
This appeal raises a short but important point of principle of great practical significance in relation to the standard form of suspended possession order used in mortgage cases and granted on a daily basis in hundreds of County Courts up and down . .
Cited – Carlyle (Scotland) v Royal Bank of Scotland Plc SC 11-Mar-2015
Assessing Whether 1st Judge was Plainly Wrong
The Court was asked whether, on an objective assessment of a what a developer and the bank had said to each other, the bank intended to enter into a legally binding promise to advance sums in the future to fund not only the developers purchase of . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Land

Updated: 02 January 2022; Ref: scu.550142

Ong and Others v Ping: ChD 17 Jun 2015

The parties disputed the beneficial interests in the proceeds of sale of a substantial property. Litigation had now continued for over twenty years.

Morgan J
[2015] EWHC 1742 (Ch)
Bailii
England and Wales
Cited by:
Cited – Ong and Others v Ping CA 12-Dec-2017
. .

Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 02 January 2022; Ref: scu.550033

Alice Ellen Cooper-Dean Charitable Foundation v Greensleeves Owners Ltd: UTLC 12 Jun 2015

UTLC Leasehold Enfranchisement – Flat – two-stage enfranchisement – Leasehold Reform, Housing and Urban Development Act 1993 – paragraph 14 of Schedule 6 – paragraph 5 of Schedule 13 – paragraph 5 of Schedule 6 – section 3 of the Human Rights Act 1998 – article 1 of the First Protocol to the European Convention on Human Rights

[2015] UKUT 320 (LC)
Bailii
Leasehold Reform, Housing and Urban Development Act 1993, European Convention on Human Rights P1A1
England and Wales

Land, Landlord and Tenant, Human Rights

Updated: 02 January 2022; Ref: scu.549870

Kendon Packaging Ltd v Greater London Authority: UTLC 1 Jul 2015

UTLC COMPENSATION – compulsory acquisition of land and commercial buildings in connection with the London Olympics 2012 – disturbance – loss of profits – increased costs of replacement premises – value for money – other temporary losses – directors’ time – pre-reference costs – Land Compensation Act 1961 section 5, Rule (6) – Compensation andpound;360,596

[2015] UKUT 354 (LC)
Bailii
Land Compensation Act 1961 5
England and Wales

Land

Updated: 02 January 2022; Ref: scu.549881

O’Kane v Charles Simpson Organisation Ltd: UTLC 3 Jul 2015

PARK HOMES – procedure – Mobile Homes (Site Rules) (England) Regulations 2014 – time limit under regulation 10(1) expressed as being ‘Within 21 days of receipt of the consultation response document . . ‘ – appeal to FtT brought within this time limit – regulation 10(3) also referring to this time limit – proper construction of this time limit (when does the 21 day period start?) – whether regulation 10(3) satisfied within this time limit – consequences if regulation 10(3) not satisfied

[2015] UKUT 355 (LC)
Bailii
Mobile Homes (Site Rules) (England) Regulations 2014 10(1)
England and Wales

Land

Updated: 02 January 2022; Ref: scu.549882

re Selwyn’s Conveyance: 1967

[1967] 1 Ch 674
England and Wales
Cited by:
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 January 2022; Ref: scu.670646

Andrews, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs: CA 1 Jul 2015

The claimant appealed against rejection of his request for judicial review of the decision by the respondent not to amend the definitive map to show two sections of public bridleway across an arable field.
Lord Dyson MR considered the purposive construction of an Act: ‘Even in relation to modern statutes, which are drafted by skilled specialist draftsmen and are assumed to be drafted with precision and consistency, the courts adopt a purposive (in preference to a literal) interpretation so as to give effect to what is taken to have been intended by Parliament. We use the phrase ‘purposive interpretation’ as shorthand for an interpretation which reflects the intention of Parliament. The court presumes that Parliament does not intend to legislate so as to produce a result which (i) is inconsistent with the statutory purpose or (ii) makes no sense or is anomalous or illogical. A purposive interpretation is all the more appropriate in a statute which is couched in language which is less consistent and more imprecise than that generally found in modern statutes’.

Lord Dyson MR, Gloster, Sales LJJ
[2015] EWCA Civ 669, [2015] WLR(D) 293, [2016] PTSR 112
Bailii, WLRD
Inclosure Consolidation Act 1801
England and Wales
Citing:
Appeal from – Andrews, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs Admn 8-May-2014
The court was asked whether the then Secretary of State, by her Inspector, was right to dismiss an appeal against the decision of Wiltshire County Council refusing an application made by the Claimant to the Council for it to modify the Definitive . .
See Also – Regina v Secretary of State for the Environment, ex parte Andrews Admn 1996
. .
See Also – In the Matter of an Application for Judicial Review R v Secretary of State for Home Department ex parte Stephen Andrews CA 4-Jul-1997
. .

Cited by:
Cited – National Aids Trust v National Health Service Commissioning Board (NHS England) Admn 2-Aug-2016
NHS to make drug available
The claimant charity said that drugs (PrEP) prophylactic for AIDS / HIV should be made available by the defendant and through the NHS. The respndent said that the responsibility for preventative medicine for sexual health lay with local authorities. . .
Cited – National Aids Trust v National Health Service Commissioning Board (NHS England) Admn 2-Aug-2016
NHS to make drug available
The claimant charity said that drugs (PrEP) prophylactic for AIDS / HIV should be made available by the defendant and through the NHS. The respndent said that the responsibility for preventative medicine for sexual health lay with local authorities. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 January 2022; Ref: scu.549749

Sargsyan v Azerbaijan: ECHR 16 Jun 2015

ECHR Article 1
Jurisdiction of states
Jurisdiction of Azerbaijan as regards a disputed area near Nagorno-Karabakh on the territory of Azerbaijan
Article 8
Article 8-1
Respect for family life
Respect for home
Respect for private life
Impossibility for an Armenian citizen displaced in the context of the Nagorno-Karabakh conflict to gain access to his home and relatives’ graves: violation
Article 13
Effective remedy
Lack of effective remedy in respect of loss of homes or property by persons displaced in the context of the Nagorno-Karabakh conflict: violation
Article 1 of Protocol No. 1
Positive obligations
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Possessions
Azerbaijan’s failure to take measures to secure property rights of an Armenian citizen displaced in the context of the Nagorno-Karabakh conflict: violation
Facts – The applicant died after lodging his complaint with the Court. Two of his children pursued the application on his behalf.
The applicant and his family, ethnic Armenians, used to live in the village of Gulistan, in the Shahumyan region of the Azerbaijan Soviet Socialist Republic (‘the Azerbaijan SSR’), where he had a house and a plot of land. According to his submissions, his family was forced to flee from their home in 1992 during the Armenian-Azerbaijani conflict over Nagorno-Karabakh.
At the time of the dissolution of the Soviet Union in December 1991, the Nagorno-Karabakh Autonomous Oblast (‘the NKAO’) was an autonomous province landlocked within the Azerbaijan SSR. In 1989 the NKAO had a population of approximately 77% ethnic Armenians and 22% ethnic Azeris. The Shahumyan region shared a border with the NKAO and was situated north of it. According to the applicant, prior to the conflict, 82% of the population of Shahumyan were ethnic Armenians. Armed hostilities in Nagorno-Karabakh started in 1988. In September 1991 – shortly after Azerbaijan had declared its independence from the Soviet Union – the Regional Council of the NKAO announced the establishment of the ‘Nagorno-Karabakh Republic’ (‘NKR’), consisting of the territory of the NKAO and the Shahumyan district of Azerbaijan. Following a referendum in December 1991 – boycotted by the Azeri population – in which 99.9% of those participating voted in favour of the secession of the NKR from Azerbaijan, the ‘NKR’ reaffirmed its independence from Azerbaijan in January 1992. After that, the conflict gradually escalated into full-scale war. By the end of 1993, ethnic Armenian forces had gained control over almost the entire territory of the former NKAO as well as seven adjacent Azerbaijani regions. The conflict resulted in hundreds of thousands of internally-displaced people and refugees on both sides. In May 1994 the parties to the conflict signed a cease-fire agreement, which holds to this day. Negotiations for a peaceful solution have been carried out under the auspices of the Organization for Security and Co-operation in Europe (OSCE). However, no final political settlement of the conflict has so far been reached. The self-proclaimed independence of the ‘NKR’ has not been recognised by any state or international organisation. Prior to their accession to the Council of Europe in 2001, Armenia and Azerbaijan both gave undertakings to the Committee of Ministers and the Parliamentary Assembly, committing themselves to the peaceful settlement of the Nagorno-Karabakh conflict.

Shahumyan, where Mr Sargsyan’s family lived, did not form part of the NKAO, but was later claimed by the ‘NKR’ as part of its territory. In 1991 special-purpose militia units of the Azerbaijan SSR launched an operation in the region with the stated purpose of ‘passport checking’ and disarming local Armenian militants in the region. However, according to various sources, the Azerbaijan SSR militia units used the official purpose as a pretext to expel the Armenian population from a number of villages in the region. In 1992, when the conflict escalated into war, the Shahumyan region came under attack by Azerbaijani forces. The applicant and his family fled Gulistan following heavy bombing of the village. He and his wife subsequently lived as refugees in Yerevan, Armenia.
In support of his claim that he had lived in Gulistan for most of his life until his forced displacement, the applicant submitted a copy of his former Soviet passport and his marriage certificate. He also submitted, in particular, a copy of an official certificate (‘technical passport’), according to which a two-storey house in Gulistan and more than 2,000 square metres of land were registered in his name, photographs of the house, and written statements from former officials of the village council and former neighbours confirming that he had had a house and a plot of land in Gulistan.
Law
(a) Preliminary objections
(i) Exhaustion of legal remedies at domestic level – In view of the Nagorno-Karabakh conflict – having regard to the fact that there were no diplomatic relations between Armenia and Azerbaijan and that borders were closed – there could be considerable practical difficulties in the way of a person from one country in bringing legal proceedings in the other. The Government of Azerbaijan had failed to explain how the legislation on the protection of property would apply to the situation of an Armenian refugee who wished to claim restitution or compensation for the loss of property left behind in the context of the conflict. They had not provided any example of a case in which a person in the applicant’s situation had been successful before the Azerbaijani courts. The Government had thus failed to prove that a remedy capable of providing redress in respect of the applicant’s complaints was available.
Conclusion: preliminary objection dismissed (fifteen votes to two).
(ii) Jurisdiction and responsibility of Azerbaijan – Given that the village of Gulistan was situated on the internationally recognised territory of Azerbaijan – a fact which was not in dispute between the parties – under the Court’s case-law, the presumption applied that Azerbaijan had jurisdiction over the village. It was therefore for the Government to show that exceptional circumstances existed, which would limit their responsibility under Article 1 of the Convention. Gulistan and the Azerbaijani military forces were located on the north bank of a river, while the ‘NKR’ positions were located on the south bank. On the basis of the material before the Court it was not possible to establish whether there had been an Azerbaijani military presence in Gulistan – although there were a number of indications – throughout the period falling within its temporal jurisdiction, namely from April 2002, when Azerbaijan ratified the Convention, until the present. It was significant to note, however, that none of the parties had alleged that the ‘NKR’ had any troops in the village.
The Court was not convinced by the respondent Government’s argument that, since the village was located in a disputed area, surrounded by mines and encircled by opposing military positions, Azerbaijan had only limited responsibility under the Convention. In contrast to other cases in which the Court had found that a State had only limited responsibility over part of its territory due to occupation by another State or the control by a separatist regime, it had not been established that Gulistan was occupied by the armed forces of another State.
Taking into account the need to avoid a vacuum in Convention protection, the Court did not consider that the respondent Government had demonstrated the existence of exceptional circumstances of such a nature as to qualify their responsibility under the Convention. In fact, the situation at stake in the instant case was more akin to the situation in Assanidze v. Georgia (71503/01, 8 April 2004, Information Note 63) in that, from a legal point of view the Government of Azerbaijan had jurisdiction as the territorial state and full responsibility under the Convention, while they might encounter difficulties at a practical level in exercising their authority in the area of Gulistan. Such difficulties would have to be taken into account when it came to assessing the proportionality of the acts or omissions complained of by the applicant.
Conclusion: preliminary objection dismissed (fifteen votes to two).
(b) Merits
Article 1 of Protocol No. 1: The Court’s case-law had developed a flexible approach regarding the evidence to be provided by applicants who claimed to have lost their property and home in situations of international or internal armed conflict. A similar approach was reflected in the UN ‘Principles on Housing and Property Restitution for Refugees and Displaced Persons’ (Pinheiro Principles).
In the instant case, the applicant had submitted a technical passport established in his name and relating to a house and land in Gulistan, including a detailed plan of the house. It was not contested that a technical passport was, as a rule, only issued to the person entitled to the house and thus constituted, in the Court’s view, prima facie evidence that he had held title to the house and the land, which had not convincingly been rebutted by the Government. Moreover, the applicant’s submissions as to how he had obtained the land and permission to build a house were supported by statements from a number of family members and former villagers. While those statements had not been tested in cross-examination, they were rich in detail and demonstrated that the people concerned had lived through the events described. Last but not least, the Court had regard to the circumstances in which the applicant had been compelled to leave when the village had come under military attack. It is hardly astonishing that he had been unable to take complete documentation with him. Accordingly, taking into account the totality of the evidence presented, the Court found that the applicant has sufficiently substantiated his claim that he had a house and a plot of land in Gulistan at the time of his flight in 1992.
In the absence of conclusive evidence that the applicant’s house had been completely destroyed before the entry into force of the Convention in respect of Azerbaijan, the Court proceeded from the assumption that it still existed though in a badly damaged state. In conclusion, there was no factual basis for the Government’s objection ratione temporis.
Under the Soviet legal system, there was no private ownership of land, but citizens could own residential houses. Plots of land could be allocated to citizens for special purposes such as farming or the construction of individual houses. In such cases, the citizen had a ‘right of use’, limited to the specific purpose, which was protected by law and could be inherited. There was therefore no doubt that the applicants’ rights in respect of the houses and land represented a substantive economic interest. Having regard to the autonomous meaning of Article 1 of Protocol No. 1, the applicant’s right to personal property of the house and his ‘right of use’ in respect of the land constituted ‘possessions’ under that provision.
While the applicant’s forced displacement from Gulistan fell outside the Court’s temporal jurisdiction, the Court had to examine whether the respondent Government had breached his rights in the ensuing situation, which continued after the entry into force of the Convention in respect of Azerbaijan.
Currently, more than one thousand individual applications lodged by persons who had been displaced during the conflict were pending before the Court, slightly more than half of them being directed against Armenia and the remainder against Azerbaijan. While the issues raised fell within the Court’s jurisdiction as defined in Article 32 of the Convention, it was the responsibility of the two States involved to find a political settlement of the conflict. Comprehensive solutions to such questions as the return of refugees to their former places of residence, repossession of their property and/or payment of compensation could only be achieved through a peace agreement. Indeed, prior to their accession to the Council of Europe, Armenia and Azerbaijan had given undertakings to resolve the Nagorno-Karabakh conflict through peaceful means. The Court could not but note that compliance with the above accession commitment was still outstanding.
The instant case was the first in which the Court had had to rule on the merits of a complaint against a State which had lost control over part of its territory as a result of war and occupation, but which at the same time was alleged to be responsible for refusing a displaced person access to property in an area remaining under its control.
The Court examined the applicant’s complaint with a view to establishing whether the respondent Government had complied with their positive obligations under Article 1 of Protocol No. 1 and whether a fair balance between the demands of the public interest and the applicant’s fundamental right of property had been struck. The applicant’s complaint raised two issues, firstly whether the respondent Government were under an obligation to grant him access to his house and land in Gulistan, and secondly whether they were under a duty to take any other measures to protect the applicant’s property right and/or to compensate him for the loss of its use.
International humanitarian law did not appear to provide a conclusive answer to the question whether the Government were justified in refusing the applicant access to Gulistan. Having regard to the fact that Gulistan was situated in an area of military activity and at least the area around it was mined, the Court accepted the Government’s argument that refusing civilians, including the applicant, access to the village was justified by safety considerations. However, as long as access to the property was not possible, the State had a duty to take alternative measures in order to secure property rights – and thus to strike a fair balance between the competing public and individual interests concerned – as was acknowledged by the relevant international standards issued by the United Nations (Pinheiro Principles) and the Council of Europe. The Court would underline that the obligation to take alternative measures did not depend on whether or not the State could be held responsible for the displacement itself.
The fact that peace negotiations under the auspices of the OSCE were ongoing – which included issues relating to displaced persons – did not free the respondent Government from their duty to take other measures, especially having regard to the fact that the negotiations had been ongoing for over twenty years. It would therefore be important to establish a property claims mechanism which would be easily accessible and provide procedures operating with flexible evidentiary standards to allow the applicant and others in his situation to have their property rights restored and to obtain compensation for the loss of the enjoyment of their rights. While the Government of Azerbaijan had had to provide assistance to hundreds of thousands of internally displaced persons – namely those Azerbaijanis who had had to flee from Armenia and from Nagorno-Karabakh and the surrounding districts – the protection of that group did not exempt the Government entirely from its obligations towards Armenians such as the applicant who had had to flee as a result of the conflict. In that connection, the Court referred to the principle of non-discrimination laid down in Article 3 of the above-mentioned Pinheiro Principles.
In conclusion, the impossibility for the applicant to have access to his property in Gulistan without the Government taking any alternative measures in order to restore his property rights or to provide him with compensation had placed an excessive burden on him. There had accordingly been a continuing violation of his rights under Article 1 of Protocol No. 1.
Conclusion: violation (fifteen votes to two).
Article 8 of the Convention: The applicant’s complaint encompassed two aspects: lack of access to his home in Gulistan and lack of access to the graves of his relatives. Having regard to the evidence submitted by Mr Sargsyan (namely a copy of his former Soviet passport and his marriage certificate, and a number of witness statements), the Court found it established that he had lived in Gulistan for the major part of his life until being forced to leave; he thus had had a ‘home’ there. His prolonged absence could not be considered to have broken the continuous link with his home. Furthermore, as the applicant must have developed most of his social ties in Gulistan, his inability to return to the village also affected his ‘private life’. Finally, the applicant’s cultural and religious attachment with his late relatives’ graves in Gulistan might also fall within the notion of ‘private and family life’.
The Court referred to its findings under Article 1 of Protocol No. 1 and held that the same considerations applied in respect of the applicant’s complaint under Article 8. The impossibility for him to have access to his home and to his relatives’ graves in Gulistan without the Government taking any measures in order to address his rights or to provide him at least with compensation, had placed a disproportionate burden on him. There had accordingly been a continuing violation of Article 8 of the Convention.
Conclusion: violation (fifteen votes to two).
Article 13 of the Convention: The respondent Government had failed to prove that a remedy capable of providing redress to the applicant in respect of his Convention complaints and offering reasonable prospects of success was available. Moreover, the Court’s findings under Article 1 of Protocol No. 1 and Article 8 of the Convention related to the State’s failure to create a mechanism which would allow him to have his rights in respect of property and home restored and to obtain compensation for the losses suffered. There was therefore a close link between the violations found under Article 1 of Protocol No. 1 and Article 8 on the one hand and the requirements of Article 13 on the other. There had accordingly been a continuing breach of Article 13 of the Convention.
Conclusion: violation (fifteen votes to two).
Article 41: reserved.

40167/06 – Grand Chamber Judgment, [2015] ECHR 588, 40167/06 – Legal Summary, [2015] ECHR 652
Bailii, Bailii
European Convention on Human Rights

Human Rights, Family, Land

Updated: 01 January 2022; Ref: scu.549227

Ives v Brown: 1919

Covenants restraining nuisance are ‘Framed for the very purpose of securing a much more adequate protection than that given by the ordinary law of nuisance’

[1919] 2 Ch 314
England and Wales
Cited by:
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 January 2022; Ref: scu.670643

Five Oaks Land Ltd v London Borough of Redbridge (Compensation – Limitation): UTLC 2 Dec 2021

Claim included in statement of case covering multiple references filed within time – notice of reference filed after expiry of limitation period – whether claim referred to Tribunal within time – s.1, Land Compensation Act 1961 – s.9, Limitation Act 1980 – rr.7 and 28, Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010

Martin Rodger, Deputy Chamber President
[2021] UKUT 304 (LC)
Bailii
England and Wales

Land

Updated: 01 January 2022; Ref: scu.670305

G and B Compressor Hire Ltd v The Greater London Authority: UTLC 18 May 2015

UTLC COMPENSATION – Compulsory purchase of 0.49 acre waste transfer station required pursuant to the London 2012 Olympic Park development – disturbance – loss of opportunity to expand business – temporary loss of profits – additional costs of new site not providing value for money – increased costs due to temporary relocation – professional fees – Land Compensation Act 1961 section 5, Rule (6) – compensation determined at andpound;671,004

[2015] UKUT 253 (LC
Bailii
Land Compensation Act 1961 5
England and Wales

Land

Updated: 30 December 2021; Ref: scu.547134

Hall v Maritek Bahamas Ltd: PC 18 May 2015

The Bahamas – the court was asked whether negotiations had concluded in a binding contract for the sale of land where the buyer had not yet required the necessary permission, as a non-resident, to acquire land, and the contract was conditional upon such.

Lord Mance, Lord Kerr, Lord Clarke, Lord Carnwath, Lord Gill (Scotland)
[2015] UKPC 23
Bailii

Commonwealth, Contract, Land

Updated: 30 December 2021; Ref: scu.546863

Tansley v Turner And Another: 15 Jun 1835

Plaintiff sold to J. trees lying on land occupied by B., and J. was to have power of removing them when he pleased. The trees having been marked by the purchaser, the cubical contents of each ascertained, and some of them having been taken away. Held, that the transfer of the whole was complete, and that upon J.’s bankruptcy the Plaintiff could not enforce any lien on the trees notwithstanding they remained on the land of B, and the sum total of the cubical contents had not been ascertained.

[1835] EngR 824, (1835) 2 Bing NC 151, (1835) 132 ER 60
Commonlii
England and Wales

Torts – Other, Land

Updated: 30 December 2021; Ref: scu.316332

Da Silva v The London Borough of Brent: UTLC 31 Mar 2015

UTLC COMPENSATION – disturbance – surveyor’s and legal fees – claimant’s personal time and costs – rule 6 losses – need for evidence to justify claim – lack of direct evidence from claimant – unexplained estimates insufficient – summary assessment of routine items

[2015] UKUT 120 (LC)
Bailii
England and Wales

Land

Updated: 29 December 2021; Ref: scu.546176

Birdlip Ltd v Hunter and Another: UTLC 24 Mar 2015

UTLC RESTRICTIVE COVENANTS – Entitlement to benefit – Enforceability – right to object

[2015] UKUT 115 (LC)
Bailii
England and Wales
Cited by:
See Also – Birdlip Ltd v Hunter and Another ChD 24-Mar-2015
The claimant had bought land it wished to develop. The defendant owners of neighbouring land said that they had the benefit of restrictive covenants whch would restrict such development. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 29 December 2021; Ref: scu.546173

Rapose and Others v London Borough of Wandsworth: UTLC 22 Apr 2015

UTLC COMPENSATION – compulsory purchase – whether any reasonable prospect of claim succeeding -direction to file all evidence relied on – whether evidence sufficient to support a claim – rule 8(3)(a) and (c), Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 – claim struck out

[2015] UKUT 172 (LC)
Bailii
England and Wales

Land

Updated: 29 December 2021; Ref: scu.546181