Godmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs: HL 20 Jun 2007

The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the land as a public right of way.
Held: Lord Denning’s speech in Fairey was correct, and the land owner, in order to estabish that a plot of land had not been dedicated as a public right of way, had to demonstrate some overt, objective act which demonstrated that that had not been his intention. Lord Hoffmann said: ‘upon the true construction of section 31(1), ‘intention’ means what the relevant audience, namely the users of the way, would reasonably have understood the landowner’s intention to be. The test is, as Hobhouse LJ said, objective: not what the owner subjectively intended nor what particular users of the way subjectively assumed, but whether a reasonable user would have understood that the owner was intending, as Lord Blackburn put it in Mann v Brodie (1885) 10 App Cas 378, 386, to ‘disabuse [him]’ of the notion that the way was a public highway.’

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Neuberger of Abbotsbury
[2007] UKHL 28, Times 22-Jun-2007, [2007] 3 EGLR 119, [2007] NPC 74, [2007] 26 EG 163, [2007] 4 All ER 273, [2007] JPL 1691, [2007] 3 WLR 85, [2008] 1 P and CR 12, [2008] 1 AC 221
Bailii
Highways Act 1980 31(1)
England and Wales
Citing:
Appeal from – Godmanchester Town Council, Regina (on the Application Of) v Secretary of State for the Environment Food and Rural Affairs CA 19-Dec-2005
The court considered whether a pathway had become a public highway.
Held: ‘The main question for the Court is whether sufficiency of evidence of an intention not to dedicate necessary to satisfy the proviso requires, as a matter of law, that . .
Cited – Powell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘In the absence of evidence to the . .
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – Trustees of the British Museum v Finnis 1833
The jury were to be asked to find whether land had been dedicated as a public right of way. Patteson J directed them that: ‘If a man opens his land, so that the public pass over it continually, the public, after a user of very few years, would be . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – Poole v Huskinson 1843
A jury asked to uphold a public right of way has to find as a fact that there has been an act of dedication accompanied by the necessary animus dedicandi on the part of the landowner. . .
Criticised – Jacques v Secretary of State for the Environment CA 1995
The Inspector had found that the landowner had, by overt acts directed at users of the way in question, including the erection of locked gates and of fencing and of notices, disproved any intention on his part to dedicate.
Held: The . .
Cited – Regina v Broke 1859
The defendant faced an accusation of having blocked a public right of way. The defendant landowner claimed to have instructed his servants to allow only seafaring men and pilots to use the path and to turn back anyone else, and that this proved that . .
Confirmed – Fairey v Southampton City Council CA 1956
The landowner denied that a public right of way had been created over his land. Under the 1932 Act, 20 years user expiring at any time, even before the Act came into force, was capable of giving rise to a deemed dedication of a public highway under . .
Cited – Bryant v Foot 1867
It is to be presumed from a period of 20 years’ user, and the lack of evidence inconsistent with there having been immemorial user or a lost modern grant, that a right which was within grant has been established. The apparent right should lie in . .
Cited – Jones v Bates CA 1938
The court considered whether there had been an act by the landowner sufficient to amount to a dedication a path as a public right of way. Scott LJ said that actual dedication was ‘often a pure legal fiction [which] put on the affirmant of the public . .
Cited – Folkestone Corporation v Brockman HL 1914
A public right of way was claimed. It was argued that, in the absence of evidence of facts inconsistent with a dedication of the pathway, the jury were obliged to make such a finding.
Held: The House rejected this submission. User was no more . .
Cited – Regina v Secretary of State for Environment, Transport and Regions ex parte Dorset County Council Admn 22-Jun-1999
The court was asked to review a decision not to confirm a public right of way. The court considered whether the landowner had to show some overt act as evidence of his lack of intention to dedicate the land. Dyson J said: ‘On the face of it, the . .
Cited – Regina v Secretary of State for the Environment, ex parte Cowell CA 1993
The question of sufficiency of evidence for the purpose of the proviso in the subsection is a question of fact for the tribunal to determine in each case. The court rejected a broad submission from the appellant that the 1980 Act and its predecessor . .
Cited – Secretary of State for the Environment v Beresford Trustees CA 31-Jul-1996
Hobhouse LJ, adopted at least part of Denning LJ’s approach in Fairey, holding that the absence of intention to dedicate had to be ‘objectively established by overt acts of the landowner’, and that ‘This is not a subjective test. The absence of . .
Cited – Regina v Secretary of State for Environment ex parte Billson Admn 16-Feb-1998
A deed granting access to a common in accordance with the section included access by horseback as well as by foot. The court upheld the Inspector’s decision that the 20-year user of the land relied upon by the applicant for the modification was not . .
Cited – Merstham Manor Ltd v Coulsdon and Purley UDC 1937
Where a public right of way is claimed, an interruption of the user at some point during the relevant twenty year period, such as the landowner locking a gate and preventing access, will defeat an argument based on user ‘as of right’ under section . .
Cited – Lewis v Thomas CA 1950
The landowner had resisted the inference of a grant of a public right of way over his land by closing it off on one day each year.
Held: Whether this was sufficient would depend upon the facts of each case. . .
Cited – Merstham Manor Ltd v Coulsdon and Purley UDC 1937
Where a public right of way is claimed, an interruption of the user at some point during the relevant twenty year period, such as the landowner locking a gate and preventing access, will defeat an argument based on user ‘as of right’ under section . .

Cited by:
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 01 November 2021; Ref: scu.253516

Simmers v Innes: HL 16 Apr 2008

The House was asked whether an option to purchase certain land had been validly exercised. The farm assets had been transferred into a company in order to generate cash. Mr Simmers was apparently gven a right for five years to purchase the business. The landowner now appealed against a decision that it had been validly exercised, saying that time should have been held to be of the essence.
Held: The appeal was dismissed. The agreement requiring completion before a certain day was not sufficient to make time of the essence, and indeed the agreement taken as a whole supported this by permitting a notice to exercise the option to be served at any time up to the day before the date supposedly fixed.

Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Neuberger of Abbotsbury
[2008] UKHL 24, 2008 GWD 13-235, 2008 SC (HL) 137, 2008 SCLR 533, 2008 SLT 407
Bailii, HL
Scotland
Citing:
See Also – Simmers and Others, Re Petition for an Order ScS 4-Apr-2003
. .
See Also – In Petition of Arthur Simmers and others for an Order Under Sec 461 of the Companies Act 1985 In Respect of Scotpigs Limited SCS 24-Apr-2003
. .
See Also – Simmers and others vInnes for an Order Under Section 461 of the Companies Act 1985 OHCS 17-Dec-2003
. .
See Also – Arthur William Simmers v James Grigor Innes OHCS 11-Jul-2005
. .
Appeal from – Simmers v Innes OHCS 2-Feb-2007
The parties disputed whether an option to purchase land had been validly exercised after a dispute as to the means of valuing it.
Held: The option had been validly exercised. . .
Cited – Rodger (Builders) Ltd v Fawdry 1950
Where the owner of land sells it, but, knowing the purchaser not to have registered the title sells it again to a purchaser who then knowingly seeks to register the second transfer, the court will disallow the transfer: ‘offside goals are . .
Cited – United Scientific Holdings v Burnley Borough Council HL 1978
The House was asked whether a failure by a lessor to keep strictly to the timetable laid down in a rent review clause in a lease necessarily deprived the lessor of the benefit of the rent review.
Held: A stipulation as to time in an option . .
Cited – Visionhire Ltd v Britel Fund Trustees Ltd 1991
. .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 01 November 2021; Ref: scu.266936

Swales v Cox: CA 1981

Police officers had entered a house in pursuit of a suspected burglar.
Held: It is a condition of any lawful breaking of premises that the person seeking entry has demanded and been refused entry by the occupier.
Donaldson LJ said: ‘it is conceded in this case that (the trial judge) correctly analysed the position at common law . . as follows:
that there was power of entry into premises at common law and, if necessary, power to break doors to do so in four cases, but in four cases only; that is to say by a constable or a citizen in order to prevent murder; by a constable or a citizen if a felony had in fact been committed and the felon had been followed to a house; by a constable or a citizen
if a felony was about to be committed, and would be committed, unless prevented; and by a constable following an offender running away from an affray. In any other circumstances there was no power to enter premises without a warrant, and, even in the four cases where there was power not only to enter but to break in order to do so, it was an essential pre-condition that there should have been a demand and refusal by the occupier to allow entry before the doors could be broken.’

Donaldson LJ
[1981] QB 849, [1981] 1 All ER 1115, [1981] 2 WLR 814
England and Wales
Cited by:
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Lunt v Director of Public Prosecutions QBD 1993
The defendant had been in a road traffic accident. The police came to his house to investigate the accident, but he refused to unlock the door to allow them entry. Stating reliance on section 4 of the 1988 Act, the officers threatened to force . .

Lists of cited by and citing cases may be incomplete.

Police, Land, Torts – Other

Leading Case

Updated: 01 November 2021; Ref: scu.239968

Clearwater Properties Ltd, Re Land and Buildings On The West Side of New Road Burntwood, Re: UTLC 28 May 2013

UTLC RESTRICTIVE COVENANT – discharge or modification – Law of Property Act 1925, s.84(1)(b) – preliminary issue – ‘without prejudice’ correspondence – whether agreement between the parties

Sir Keith Lindblom, P
[2013] UKUT 210 (LC)
Bailii
Law of Property Act 1925 84(1)(b)
England and Wales

Land

Updated: 01 November 2021; Ref: scu.514714

Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands: PC 29 Jul 1947

Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used to provide materials to construct the air base. It used compulsory powers to do so. Compensation was to be assessed. The landowner said that the limestone was now more valuable because of the need for it for the air base.
Held: The Board set out the basis for valuation of land purchased compulsorily at common law. The 1919 Act, following the Scott Committee limited compensation payable for the ‘special suitability or adaptability’ of the land with a Rule for assessing compensation; that it should not for any purpose be be taken into account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers, or for which there is no market apart from the special needs of a particular purchaser or the requirements of any Government Department or any local or public authority.
The Act modified ‘the effect of certain decisions of the Courts relating to the quantum of compensation in cases of compulsory purchase’.
The rule did not apply to the facts of this case. The word ‘purpose’ here meant ‘a purpose to which the land can be applied. It therefore connotes ‘a use, actual or potential, of the land itself, and cannot be regarded as meaning a purpose which is only concerned with the use of the products of the land elsewhere’.
The award of andpound;15,000 ‘for special adaptability’ was disallowed because it could only relate to the additional value which was given to the quarry land by the scheme for which the land was acquired, the establishment by the United States of a naval base in Trinidad. In general, any increase or decrease in value due solely to the scheme under which the land is acquired is to be discounted.
Lord MacDermott said: ‘It is well settled that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition.’

Lord MacDermott, Lord Oaksey, Lord Morton
[1947] AC 565, (1947) 63 TLR 486, [1947] UKPC 71
Bailii
Acquisition of Land (Assessment of Compensation) Act 1919
England and Wales
Citing:
Cited – South Eastern Railway Co v London County Council 1915
Compulsory purchase – compensation assessment – ‘Increase in value consequent on the execution of the undertaking for or in connection with which the purchase is made must be disregarded.’ . .
Cited – Fraser v City of Fraserville PC 1917
One ground on which the arbitrators’ valuation award on a compulsory purchase, was set aside was that, in valuing the falls of a river and adjacent land acquired for electricity generation purposes, the arbitrators had taken into account the . .

Cited by:
Cited – Waters and others v Welsh Development Agency CA 28-Jun-2002
The claimant’s land was subject to a compulsory purchase order to make land available for a scheme to make possible a much larger and more valuable scheme. He asserted that the compensation should be calculated in accordance with the value of the . .
Cited – C F and M G Roberts v South Gloucestershire District Council LT 31-Dec-1994
LT COMPENSATION – Compulsory purchase of land for the construction of a road – value – assumed planning permission – value of minerals – planning permission for a commercial minerals operation not granted or to . .
Cited – Bolton Metropolitan Borough Council v Tudor Properties Ltd and Others CA 19-Apr-2000
The court had to consider the compensation to be awarded on the compulsory purchase of land.
Held: The appeal failed. The tribunal had not erred in ascertaining the extent of the underlying scheme. In deciding that, they were entitled to have . .
Explained – Wilson v Liverpool Corporation CA 1971
The claimants owned 74 acres of an area of 391 acres in Liverpool which the Corporation wanted to acquire for residential development. The authority acquired the land by agreement and made a compulsory purchase order in respect of the remainder.
Cited – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Applied – Rugby Joint Water Board v Shaw-Fox HL 1973
The water board obtained a compulsory purchase order to buy agricultural land adjoining a reservoir. The land was subject to protected tenancies under the 1948 Act.
Held: (Majority) Because the land subject to notices to treat was required for . .
Cited – Davy v Leeds Corporation HL 1965
The Corporation declared an area in which the appellants owned some slum houses to be a slum clearance area and made a compulsory purchase order. Compensation was to be assessed under the 1919 Act and the 1959 Act. The appellants were entitled to . .
Cited – Camrose v Basingstoke Corporation CA 1966
Basingstoke was to be expanded to receive overspill population from London and the corporation contracted to purchase about 550 acres from a landowner on terms that the price would be assessed as though the land had been compulsorily acquired under . .
Applied – Myers v Milton Keynes Development Corporation CA 1974
Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the ‘scheme’ meant that the . .
Developed – Bird and Bird v Wakefield Metropolitan Borough Council 1976
The underlying scheme to be disregarded when calculating compensation on a compulsory purchase need not, as a matter of law, be confined to the area of land compulsorily acquired or to the specific purposes of the CPO. The acquisition may be only a . .
Cited – Batchelor v Kent County Council CA 1989
The Council had compulsorily acquired land for highway improvement. It was within an area scheduled for residential development. Outline permission for development of neighbouring land had been granted but the development could not proceed until the . .
Cited – J A Pye (Oxford) Limited v Kingswood Borough Council CA 6-Apr-1998
The purchase of land which was to form the last part of a development was to be valued without taking account of the enhanced value which would be attributed to the much larger scheme of development. To ascertain what is to be ignored by the valuer . .
Cited – Batchelor v Kent County Council LT 1-Mar-1987
The tribunal was asked to determine compensation to be paid on the acquisition of two plots of land. The land-owner claimed andpound;9,000,000 and the council offered andpound;5,490. The land-owner claimed the value as ransom as necessary access to . .
Cited – Newell and others v Secretary of State for the Environment and Another; Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment and Another HL 17-Feb-2000
Where a certificate of appropriate development was issued for land to be acquired compulsorily, the land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Cited – Graham v The Council of The City of Newcastle Upon Tyne UTLC 20-Jan-2010
UTLC COMPENSATION – compulsory purchase – open storage land acquired as part of Morrisons foodstore – whether Case 2 of First Schedule to Land Compensation Act 1961 applies where other land not developed in . .
Applied – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Roberts and Another v South Gloucestershire Council CA 7-Nov-2002
The landowner appealed against the compensation awarded for the compulsory acquisition of his land for use as a road. The owners had been compensated only for its agricultural value, but said that it should have allowed for its value for minerals . .
Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .
Cited – Waters and others v Welsh Development Agency LT 3-Nov-2000
LT COMPENSATION – Compulsory purchase of land for purpose of nature reserve to compensate for loss of SSSI caused by Cardiff Bay Barrage – preliminary issues – Land Compensation Act 1961 s 5 rule (3) – Pointe . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Land

Leading Case

Updated: 01 November 2021; Ref: scu.182824

Regan v Paul Properties DPF No 1 Ltd and others: ChD 27 Jul 2006

The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an infringement of a right to light it cannot be said that refusing an injunction and leaving the claimant with an award of damages in lieu is an exceptional course . . having regard in particular to the guidance given in the decisions of the Court of Appeal in the cases of Kine v. Jolly and Fishenden, that the onus is plainly on a claimant to persuade the court that he should not be left to a remedy in damages. The damage to the claimant’s land was relatively small, it could be adequately compensated in money, and it would be oppressive to award an injunction.

Stephen Smith QC DJ
[2006] EWHC 1941 (Ch)
Bailii
England and Wales
Citing:
Cited – Colls v Home and Colonial Stores Ltd HL 2-May-1904
The courts below had concluded that the defendant had infringed the plaintiff’s right to light, and had awarded an injunction.
Held: the appeal succeeded. The House set out the requirements for establishing the existence of a right to light. . .
Cited – Deakins v Hookings CC 1994
(County Court) Judge Cooke considered a claim for an alleged breach of a right of light. The well-lit area in the living room was 51% of the floor area before the development, reduced to 41% afterwards.
Held: There had been an actionable . .
Cited – Carr-Saunders v Dick McNeill Associates 1986
The claim was for interference with the plaintiff’s right to light.
Held: There is a need to approach infringements of easements of light with flexibility. The plaintiff’s subjective views as to the loss of light were not to the point. When . .
Cited – Ough v King CA 1967
A claim was made for breach of a right to light. The defendant relied on Waldram diagrams to demonstrate that the new extensions did not reduce the amount of adequate light remaining available below the 50% threshold. The relevant room had a floor . .
Cited – Price v Hilditch 1930
The erection of a high boundary wall was established to be a nuisance. Maugham J: ‘A ground plan put in by one of the expert witnesses for the plaintiff shows the amount of floor space to which the light of the sky has access, calculated from the . .
Cited – Fishenden v Higgs and Hill Ltd CA 1935
An injunction had been refused an injunction in respect of an infringement of an easement of light and awarded damages in lieu, even though the damages would be substantial because it had been shown that the plaintiff was plainly ‘only wanting . .
Cited – Kine v Jolly CA 1905
The court refused an injunction in respect of an infringement of the right to light to a dwelling house, restricting the plaintiff to a remedy in damages. Cozens-Hardy LJ: ‘I think it is impossible to doubt that the tendency of the speeches in the . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Pugh v Howells CA 1984
The court ordered a building to be demolished were the development had been speeded up and completed over a bank holiday weekend in order to present the plaintiff with a fait-accompli, having been warned that the proposed works would infringe a . .

Cited by:
Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Cited – Watson and others v Croft Promo-Sport Ltd CA 26-Jan-2009
The claimants were neighbours of the Croft motor racing circuit. They alleged nuisance in the levels of noise emanating from the site. The defendants denied nuisance saying that the interference was deemed reasonable since they operated within the . .
Appeal from – Regan v Paul Properties Ltd and others CA 26-Oct-2006
The court considered the appropriate remedy after a finding of infringement of a right to light, and in particular: ‘whether the proper remedy for infringement in this case is damages for nuisance, as ordered by the court below, or whether a . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Land

Leading Case

Updated: 01 November 2021; Ref: scu.244231

Peters v Sinclair: 6 May 1913

Supreme Court of Canada – S. brought action against P. for trespass on a strip of land called ‘Ancroft Place’ which he claimed as his property and asked for damages and an injunction. ‘Ancroft Place’ was a cul-de-sac running east from Sherbourne Street, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or user. On the trial it was shewn that the original owners had conveyed the lots to the east and south of ‘Ancroft Place’ to different parties, each deed describing it as a street and giving a right of way over it to the grantee. The deeds to P.’s predecessors in title did not give him a similar right of way, but some of these conveyances described it as a street. The deed to one of the predecessors in title of S. had a plan annexed shewing ‘Ancroft Place’ as a street fifty feet wide and the grantee was given the right to register said plan. The evidence also established that for 22 years before the action ‘Ancroft Place’ had been entered in the assessment rolls as a public street and had not been assessed for taxes and that the city had placed a gas lamp on the end; also, that for over twenty years it had been used by the owners of the lots to the south and east, and from time to time by the owner on the north side, as a means of access to, and egress from, their respective properties. In 1909 the fee in the land in dispute was conveyed to S. who had become owner of the lots to the east and south.
Held, Idington J. dissenting, Duff J. expressing no opinion, that the evidence was not sufficient to establish that the land had been dedicated to the public, and accepted by the municipality as a street.
Held, further, Idington and Duff JJ. dissenting, that the land was not a ‘way, easement or appurtenance’ to the lot to the north ‘held, used, occupied and enjoyed, or taken or known, as part and parcel thereof’ within the meaning of sec. 12 of ‘The Law and Transfer of Property Act,’ R.S.O., [1897] ch. 119.
Held, also, that, P. had not acquired a right-of-way by a grant implied from the terms of the deeds of the adjoining lots, Duff J. dissenting; nor by prescription, Duff J. expressing no opinion.

Sir Charles Fitzpatrick CJ and Davies, Idington, Duff and Anglin JJ
1913 CanLII 8 (SCC), 48 SCR 57
Canlii
Citing:
Cited – Attorney-General v Antrobus ChD 1905
The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
Held: The court rejected a suggestion that . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Land

Leading Case

Updated: 01 November 2021; Ref: scu.540228

London County Council v Wilkins (Valuation Officer): HL 1957

Four builders’ moveable huts, which had been erected as temporary structures on a site for 18 months, only one of which was moved from one part of the site to the other during that period, were claimed chattels and therefore not rateable.
Held: Whether or not the structures had lost their character as chattels was not decisive as the test of rateability, nor was the conscious intention of the contractors to attach or not to attach them to the soil. These were factors to be considered and the test of rateability was whether there was evidence that the structures, occupied for a period which was not transient, were enjoyed with the land and enhanced its value. The test of rateability is whether there is evidence that the structures were enjoyed with the land and enhanced its value. In considering this, the intention of the erector and the other elements of annexation, period, size, quality, amenities and purpose are all material. All these factors are important, but intention, the ‘conscious element’ in intention, is no more than one factor and its importance is not overriding. The question is eminently one of fact.
Viscount Kilmuir set out what he regarded as the appropriate legal test for rateability: ‘I think that the Respondent’s submission was right, namely, that the test of rateability is whether there is evidence that the structures were enjoyed with the land and enhanced its value. In considering this, the intention of the erector and the other elements of annexation, period, size, quality, amenities and purpose are all material. All these factors are important, but intention, and certainly what I may call the ‘conscious element’ in intention, is no more than one factor and its importance is not overriding. The question is eminently one of fact.’
Lord Oaksey said: ‘A consideration of the authorities leads me to the conclusion that an occupier who makes any beneficial use of land is rateable if he does so for a period which is not transient.’
Lord Radcliffe said: ‘In my opinion, the present case really centres round the question whether the sheds, created on a building site by a building contractor for the purpose of his operations, involves such a degree of permanency in his occupation as to make it a rateable one. I have no doubt that, in considering this, it is at any rate relevant to ascertain to what extent and in what way these constructions have been made a fixed part of the site on which they stand, for the more casually they are attached the less likely it is that the occupation of them will be found to be a permanent one. In this sense it may be of some importance to enquire whether they are chattels or not. But to make the whole issue of rateability depends on the bare issue, for instance, whether a particular structure has or has not foundations in the ground which give it a measure of lateral as well as subjacent support would be to use a legal distinction for a purpose for which it was never intended . .
Certainly it is true that the law demands that an occupation to be rateable should be permanent. But then it is equally certain that permanence does not connote what it might appear to in this connexion. It is rather easier to say what it does not mean than what it does. An occupation is not the less permanent because it is that of a lessee who holds under a lease for a fixed term. In other words, there is permanent occupation however clearly the end might be in sight. More than that, an occupation can be permanent even though the structure or other chattel which is the means of occupation is removable on notice . . it may be that ‘permanent’ signifies no more than continuous, as opposed to intermittent, physical possession of the soil, as is suggested by the learned editors of Ryde on Rating (see 10th ed., p. 39). However that may be, it is well settled that a tenant at will has an occupation that is sufficiently permanent to carry rateability. If so, I see no reason why the contractor’s occupation of his huts during the pendency of the building contract should not produce a similar result. . .
But, in my opinion, within very wide limits, which are not overstepped in the present case, the question whether there is sufficient permanency of occupation is essentially a question of degree and as such is a proper question for the final determination of the Lands Tribunal. If the evidence had been, as it was not, that the huts or sheds were constantly being moved from one site to another, so that there was no real appropriation of any particular area of soil to the purposes of occupation, I can see that it might be necessary to say that the law did not admit so transient an occupation to be a rateable one. But all that we know is that one structure was once moved in the course of the operations and I do not think that we ought to assume that the occupation was in fact more transient than the evidence suggests. If so, 18 months on the site does not present itself to me as something inherently too brief for rateability. The rate is an annual impost on the occupier in respect of his profitable occupation of land; it is not a capital charge on the owner in respect of the property interest in the soil. If such an occupation in fact endures for a year or more I do not see why the occupier should not contribute to the current fund of the rating area for that period. The mere brevity of his occupation will be itself the cure of any hardship in his liability.’
Lord Tucker said: ‘A hereditament only becomes a subject of rateability if there is a sufficient element of ‘permanence’ in its occupation. This is essentially a question of fact and degree. It has long been settled that occupation for a defined period of time or even under a tenancy at will or by virtue of licence subject to revocation at any time may not be too transient to be regarded as ‘permanent’. See, for example, Cory v Bristow, where the moorings were subject to removal at a week’s notice from the conservators. If, therefore, the sites on which these huts stood, apart altogether from the huts themselves, were exclusively and beneficially occupied by the contractors for a sufficient length of time, they would become rateable hereditaments. The presence of the huts thereon would merely be an element enhancing the value of their occupation. In this case their presence is also a factor to be taken into consideration in deciding whether there has been a sufficient ‘carving out’ or appropriation of a particular portion of the site to amount to exclusive occupation by the contractors.’
Earl Jowitt thought it would not have been in the least surprising if the Lands Tribunal had come to a conclusion of fact that the structures in that case were ‘of such a transient nature’ as to justify their exclusion from the valuation bill; ‘they might be of such an unsubstantial and ephemeral character as to make it obvious that they should not be included’ on the valuation roll.

Viscount Kilmuir LC, Tucker, Oaksey, Radcliffe LL, Earl Jowitt
[1957] AC 362
England and Wales
Citing:
Approved – John Laing and Son Ltd v Kingswood Assessment Committee KBD 1949
The appellant building contractors had been engaged by the Air Ministry to execute works at an aerodrome. They erected on the site, for the purpose of carrying out the contract, offices, garages, canteen for workmen and other structures. Although . .

Cited by:
Cited – Field Place Caravan Park Ltd v Harding CA 1966
The Court considered the rateability of a residential caravan site. The caravans were on wheels and retained their mobility although they were jacked up to keep them stable.
Held: Although a chattel is not a rateable hereditament by itself, it . .
Cited – Cinderella Rockerfellas Ltd v Rudd (Valuation Officer) CA 11-Apr-2003
The taxpayer appealed against a rating assessment on a barge permanently moored at a riverbank. He claimed that as a chattel, it should not be rated.
Held: The vessel was a chattel, but its occupation could be an occupation of the riverbed. . .
Cited – Reeves (Listing Officer) v Northrop Admn 6-Mar-2012
The respondent occupied a tugboat with his family as his home. The appellant authority had sought to charge council tax, saying that it was a dwelling. The boat was not a houseboat but a live-aboard seagoing vessel, registered in the Small Ships . .
Cited – Reeves (Listing Officer) v Northrop CA 17-Apr-2013
The taxpayer had successfully challenged the entry of his houseboat in the rating list at the Valuation Tribunal, but this had been re-instated at first instance. He said that the boat, as a registered seagoing vessel was not a houseboat, and that . .

Lists of cited by and citing cases may be incomplete.

Rating, Land

Leading Case

Updated: 01 November 2021; Ref: scu.181043

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 claimant’s claim under Rylands had been rejected, but he appealed his claim in nuisance. The defendants sought a declaration of an easement of drainage. The land had previously been in one ownership. Various deeds had provided for mutual rights and arbitration. Changes in water flow had lead to dykes becoming silted up.
Held: If a Leakey duty arose on the defendants, it had been discharged. Also the earlier deeds had done enough to resreve implied easements of drainage.

Lord Justice Jonathan Parker Lord Justice Schiemann Sir Christopher Staughton
[2003] EWCA Civ 198, Gazette 13-Mar-2003
Bailii
England and Wales
Citing:
Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .
Cited – Honey v Sliversprings Bleaching and Dyeing Co Ltd ChD 1992
. .
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 – Thomas and Evans Ltd v Mid-Rhondda Co-operative Society CA 1941
The defendants set out to re-construct a wall along the side of the river to protect their land and an adjacent highway from flooding. In doing so they pulled down the wall, leaving gaps which they intended to fill by a new building. The river . .
Cited – L E Jones (Insurance Brokers) Ltd v Portsmouth City Council CA 7-Nov-2002
The claimant sought compensation for damage caused to his property by the roots of trees on the verge outside his premises.
Held: The respondent did exercise lawful control over the trees, even though it did not own the land on which they . .
Cited – Pwllbach Colliery Co v Woodman HL 1915
Whether an easement may be created by implication depends on the circumstances under which it is said to have been made. The law implies a grant of such easements as may be necessary to give effect to the common intention of the parties to a grant . .

Cited by:
Cited – Lambert and Others v Barratt Homes Ltd (Manchester Division) and Another QBD 17-Feb-2009
The claimant sought damages in nuisance and negligence saying that in constructing a new housing estate, they had altered the land in such a way as to lead to the repeated flooding of their home.
Held: Both the developer and the council were . .
Cited – Lambert and Others v Barratt Homes Ltd and Another CA 16-Jun-2010
The claimants had bought houses from the first defendants, who in turn had bought the land from Rochdale, the second defendants. In preparing the land for construction the first defendants were said to have negligently filled in a drainage culvert . .

Lists of cited by and citing cases may be incomplete.

Land, Nuisance

Updated: 01 November 2021; Ref: scu.179560

Littlejohns and Another v Devon County Council and Another: CA 6 May 2016

Appeal against rejection of request for registration of land as a common: ‘At the heart of the appeal lies the question of law whether it is possible to acquire a right of common by virtue of an express grant or (as in the present case) user after 2 January 1970 over land registered under the Commons Registration Act 1965 on or before 31 July 1970.’
Held: The appeal failed (Sir Terence Etherton C dissenting). Section 1(2)(a) of the 1965 Act operated to ensure that if land might have been registered under the 1965 Act but had not been, then on 31 July 1970 it ceased to be common land, or a town or village green, and it could no longer be asserted that even though it was not ‘deemed’ to be common land, in fact it was. Registration was conclusive evidence that the land was common land, and non-registration was conclusive evidence that it was not.

Sir Terence Etherton C, Tomlinson, Lewison LJJ
[2016] EWCA Civ 446, [2016] WLR(D) 242
Bailii, WLRD
Commons Act 2006, Commons Registration Act 1965
England and Wales
Citing:
Appeal from – Littlejohns, Regina (on The Application of) v Devon County Council and Another Admn 24-Mar-2015
The claimants sought judicial review of the refusal by the defendants to register rights of common in certain lands under the 2006 Act. The defendants said that the rights asserted did not fall within the scope of transitional provisions in the 2006 . .
Cited – Central Electricity Generating Board v Clwyd County Council 1976
The owner of a farm applied late for the registration of a right of common over the Dee Marsh Saltings which had been provisionally registered as common land. After an inquiry the Commons Commissioner, Hugh Francis QC, confirmed the registration of . .
Cited – Corpus Christi College Oxford v Gloucestershire County Council CA 1983
The court considered the result where the freehold of what had formerly been waste of the manor became severed from the lordship.
Held: It ceased to be part of the manor. Lord Denning MR described the historical basis of the ownership of land . .
Cited – Hampshire County Council v Milburn HL 1991
The 1965 Act ‘was passed to give effect to the recommendations of the Royal Commission so far as registration was concerned. The Act of 1965 did not confer any general public right of access over common land and did not set up the machinery for the . .
Cited – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 November 2021; Ref: scu.563142

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 side of the ditch transferred land only up to the middle of the hedge, whereas the application of the hedge and ditch rule suggested that the seller owned the strip between the hedge and the other side of the ditch.
Held: The reference to boundaries on an Ordnance Survey plan in a conveyance showing the boundary along the hedge did not displace the assumption that the hedge and ditch were formed within the boundaries of the property. There had been no previous common ownership. The rule in Vowles assumes the boundary exists first, and then the ditch is dug. If either is untrue the rule is displaced. The hedge and ditch presumption, far from being a touchstone of last resort is the best guide to the line of the boundary. Having referred to Land Registry maps based upon the Ordnance Survey, the House added that ‘the precise boundary must, if the question arises, be established by topographical and other evidence’.
‘Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras’s army.’ Appeal allowed.
Lord Hoffmann explained the hedge and ditch rule as follows: ‘There are certain presumptions which assist the inferences which may be drawn from the topographical features. Perhaps the best known is the one which is drawn from the existence along the boundary of a hedge and a ditch. In such a case, it is presumed that the boundary likes along the edge of the ditch on the far side from the hedge. The basis of this presumption was explained by Laurence J. in Vowles v. Miller (1810) 3 Taunt. 137 . . It should be noticed that this rule involves two successive presumptions. First, it is presumed that the ditch was dug after the boundary was drawn. Secondly, it is the presumed that the ditch was dug and the hedge grown in the manner described by Laurence J. If the first presumption is displaced by evidence which shows that the ditch was in existence before the boundary was drawn, for example, as an internal drainage ditch which was later used as a boundary when part of the land was sold, then there is obviously no room for the reasoning of Laurence J. to operate.’
He doubted the correctness of the concession made.

Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde
Times 30-Apr-1999, Gazette 26-May-1999, [1999] UKHL 15, [1999] 1 WLR 894, [1999] 24 EG 160, [1999] NPC 54, (1999) 78 P and CR D19, (1999) 78 P and CR 327, [1999] EG 66, [1999] 2 EGLR 89, [1999] 2 All ER 897
House of Lords, Bailii
Land Registration Rules 1925 278
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 – Asher v Whitlock CEC 3-Nov-1865
Possession of land is in itself a good title against anyone who cannot show a prior and therefore better right to possession. A possession which is wrongful against the true owner can found an action for trespass or nuisance against someone else. A . .
Disapplied – Fisher v Winch CA 1939
The land of both parties had been in common ownership. The first plot to be conveyed was sold by a conveyance which set out by reference to the numbers on an Ordnance map the different parcels with their description and acreage. The second . .
Appeal from – 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 by:
Cited – Kupfer Kupfer v Dunne CA 7-Nov-2003
Neighbours disputed the exact boundary between their houses. An extension and fence had been built. The judge had declared the boundary, and ordered the removal of fence posts.
Held: Such a dispute should be resolved by reference to . .
Cited – Geoffrey Allan Chadwick, Sylvia Joyce Chadwick, Edward James Chadwick v Abbotswood Properties Ltd, Gordon Leonard Hauser, Pamela Ann Hauser, Rectory Pump Ltd ChD 18-May-2004
Between to new houses was a steep bank. Who owned it? Before the transfer there had been different plans and much correspondence.
Held: Where there was doubt as to the extent of land transferred, the court could look to the physical boundaries . .
Leading Authority – Pennock and Another v Hodgson CA 27-Jul-2010
In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
Cited – Taylor v Lambert and Another CA 18-Jan-2012
The court heard an appeal against a judgment in a boundary dispute, the losing party having latterly dicovered aerial photopgraphs. There appeared to be a difference between the total area as specified in a 1974 conveyance off of part and the area . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Land, Registered Land

Leading Case

Updated: 01 November 2021; Ref: scu.77706

Director of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith: HL 12 Jul 1990

Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when seeking to sever the valid from the invalid where part of subordinate legislation, the RAF Greenham Common Byelaws, was held to be ultra vires the enabling statute.
The fact that the invalid feature of the byelaw could not be excised with a blue pen did not preclude severance. What precluded it was that, if the byelaw was so construed as to allow the 62 commoners to enter the land, the legislative purpose behind it would be undermined.
The House set out a test of ‘substantial severability’ which the byelaws failed. Lord Bridge said: ‘When a legislative instrument made by a law-maker with limited powers is challenged, the only function of the court is to determine whether there has been a valid exercise of that limited legislative power in relation to the matter which is the subject of disputed enforcement. If a law-maker has validly exercised his power, the court may give effect to the law validly made. But if the court sees only an invalid law made in excess of the law-maker’s power, it has no jurisdiction to modify or adapt the law to bring it within the scope of the law-maker’s power. These, I believe, are the basic principles which have always to be borne in mind in deciding whether legislative provisions which on their face exceed the law-maker’s power may be severed so as to be upheld and enforced in part.
The application of these principles leads naturally and logically to what has traditionally been regarded as the test of severability. It is often referred to inelegantly as the ‘blue pencil’ test. Taking the simplest case of a single legislative instrument containing a number of separate clauses of which one exceeds the law-maker’s power, if the remaining clauses enact free-standing provisions which were intended to operate and are capable of operating independently of the offending clause, there is no reason why those clauses should not be upheld and enforced. The law-maker has validly exercised his power by making the valid clauses. The invalid clause may be disregarded as unrelated to, and having no effect upon, the operation of the valid clauses, which accordingly may be allowed to take effect without the necessity of any modification or adaptation by the court. What is involved is in truth a double test. I shall refer to the two aspects of the test as textual severability and substantial severability. A legislative instrument is textually severable if a clause, a sentence, a phrase or a single word may be disregarded, as exceeding the law-maker’s power, and what remains of the text is still grammatical and coherent. A legislative instrument is substantially severable if the substance of what remains after severance is essentially unchanged in legislative purpose, operation and effect. ‘ and ‘The test of textual severability has the great merit of simplicity and certainty. When it is satisfied the court can readily see whether the omission from the legislative text of so much as exceeds the law-maker’s power leaves in place a valid text which is capable of operating and was evidently intended to operate independently of the invalid text. But I have reached the conclusion, though not without hesitation, that a rigid insistence that the test of textual severability must always be satisfied if a provision is to be upheld and enforced as partially valid will in some cases . . have the unreasonable consequence of defeating subordinate legislation of which the substantial purpose and effect was clearly within the law-maker’s power when, by some oversight or misapprehension of the scope of that power, the text, as written, has a range of application which exceeds that scope. It is important, however, that in all cases an appropriate test of substantial severability should be applied. When textual severance is possible, the test of substantial severability will be satisfied when the valid text is unaffected by, and independent of, the invalid. The law which the court may then uphold and enforce is the very law which the legislator has enacted, not a different law. But when the court must modify the text in order to achieve severance, this can only be done when the court is satisfied that it is effecting no change in the substantial purpose and effect of the impugned provision.’

Lord Bridge, Lord Griffiths, Lord Oliver and Lord Goff
[1990] 2 AC 783, Times 13-Jul-1990, [1988] UKHL 11
Bailii
Military Lands Act 1892
England and Wales
Citing:
Cited – Rex v Company of Fishermen of Faversham 1799
Lord Kenyon CJ discussed the validity of a byelaw: ‘With regard to the form of the byelaw indeed, though a byelaw may be good in part and bad in part, yet it can be so only where the two parts are entire and distinct from each other.’ . .
Cited – Rex v Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow and Co 1910
The court considered the ability to sever void sections of statutes from other sections.
Held: Griffiths CJ said: ‘It is contended, on the authority of decisions of the Supreme Court of the United States, which are entitled to the greatest . .
Cited – The Employers’ Liability Cases 1908
(US Supreme Court) The court heard together two appeals regarding the range of federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was . .
Cited – Illinois Central Railroad Co v McKendree 1906
(US Supreme Court) An order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that . .
Cited – Strickland v Hayes CA 12-Feb-1896
A by-law made by a county council under s 16 of the 1888 Act, was in the following terms: ‘No person shall in any street or public place, or on land adjacent thereto, sing or recite any profane or obscene song or ballad, or use any profane or . .
Cited – Regina v Lundie QBD 1862
A byelaw provided: ‘if any person shall stock or depasture, inter alia, a vicious horse on any part of the common pastures, then, and in every such case, the person or persons so offending, and the owner or owners of the said stock and cattle, shall . .

Cited by:
Cited – Pilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
Cited – Commissioner of Police v Davis PC 1994
(Bahamas) Certain statutory provisions relating to drug offences infringed the Constitution of The Bahamas. A question then arose on the severability of one of the offending statutory provisions, section 22(8) of the Dangerous Drugs Act. This . .
Cited – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Cited – National Association of Health Stores and Another, Regina (on the Application of) v Department of Health CA 22-Feb-2005
Applications were made to strike down regulations governing the use of the herbal product kava-kava.
Held: The omission of any transtitional provisions had not affected anyone. Nor was the failure to consult as to the possibility of dealing . .
Cited – Regina v Warwickshire County Council ex parte Powergen Plc CA 31-Jul-1997
The council as highway authority had objected to a development on the grounds of road safety. The application was subsequently approved by the Secretary of State, but the Council sought to maintain its safety objection.
Held: The highway . .
Cited – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – Hemming (T/A Simply Pleasure) and Others, Regina (on The Application of) v Westminster City Council SC 19-Jul-2017
The claimant challenged fees which were charged to the respondents on applying to Westminster City Council for sex shop licences for the three years ended 31 January 2011, 2012 and 2013 and which included the council’s costs of enforcing the . .

Lists of cited by and citing cases may be incomplete.

Land, Constitutional, Armed Forces

Leading Case

Updated: 01 November 2021; Ref: scu.187749

Young v The Bristol Aeroplane Co Ltd: CA 28 Jul 1944

Court of Appeal must follow Own Decisions

The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered the circumstances in which it could depart from a previous decision of the same court, on the basis that the decision had been reached per incuriam because an applicable statute or rule had not been referred to.
Lord Greene MR said: ‘In considering the question whether or not this court is bound by its previous decisions and those of courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely, cases where this court finds itself confronted with one or more decisions of its own or of a court of co-ordinate jurisdiction which cover the question before it and there is no conflicting decision of this court or of a court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is where this court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this court comes to the conclusion that a previous decision was given per incuriam. In the second and third classes of case it is beyond question that the previous decision is open to examination. In the second class, the court is unquestionably entitled to choose between the two conflicting decisions. In the third class of case the court is merely giving effect to what it considers to have been a decision of the House of Lords by which it is bound. The fourth class requires more detailed examination and we will refer to it again later in this judgment.’
Lord Greene MR: ‘Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts.’

Lord Greene MR, Scott, MacKinnon, Luxmoore, Goddard and du Parcq LJJ
[1944] KB 718, 60 TLR 536, [1944] 2 All ER 293, (1945) 78 Ll L Rep 6, [1944] EWCA Civ 1
Hamlyn, Bailii, Bailii
England and Wales
Cited by:
Cited – Bakewell Management Ltd v Brandwood and Others ChD 21-Mar-2002
The claimant sought a declaration that he had acquired an easement over land by driving over it, over several years. The land owner denied the easement, saying that section 193 made the claimant’s activity a crime, and that, following Hanning, . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Cited – Roland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
Cited – Simpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .
Cited – Regina v Gould CACD 1968
Diplock LJ said: ‘In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If upon due consideration . .
Cited – Ferrishurst Ltd v Wallcite Ltd CA 30-Nov-1998
A person in actual occupation of registered land at time of transfer can enforce his rights against the transferee. A sub-underlessee in occupation of part could enforce an option to purchase against the freeholder acquiring intermediate registered . .
Affirmed – Davis v Johnson HL 2-Jan-1978
The court was asked to interpret the 1976 Act to see whether its protection extended to cohabitees as well as to wives. In doing so it had to look at practice in the Court of Appeal in having to follow precedent.
Held: The operation of the . .
Cited – Sorrell v Sorrell FD 29-Jul-2005
The parties contested ancillary relief on their divorce. The marriage had been very long, and the assets were very substantial. The husband contended that these assets represented an exceptional contribution on his part.
Held: In this case an . .
Applied – Wilson v Chatterton CA 1946
The court considered the circumstances under which it could depart from its previous decision. Scott LJ said that it might be allowed on the basis of the earlier decision ‘being inconsistent with general principles laid down by the House of Lords . .
Cited – Woodward v Abbey National Plc CA 22-Jun-2006
The claimant appealed refusal to award damages after an alleged failure to give a proper reference, saying that the decision in Fadipe could not stand with the later decision in Rhys-Harper. She said that she had suffered victimisation after making . .
Cited – Miliangos v George Frank (Textiles) Ltd CA 1975
The court looked at what makes a case decided per incuriam: ‘a case is not decided per incuriam because counsel have not cited all the relevant authorities or referred to this or that rule of court or statutory provision.’ (Lord Denning MR) . .
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
Cited – Department for Transport, Environment and the Regions v Mott Macdonald Ltd and others CA 27-Jul-2006
Claims arose from accidents caused by standing water on roadway surfaces after drains had not been cleared by the defendants over a long period of time. The Department appealed a decision giving it responsibility under a breach of statutory duty . .
Cited – Smith v Leicestershire Health Authority CA 29-Jan-1998
The plaintiff appealed a finding that she had sufficient knowledge of her possible claim for medical negligence against the defendants, and that she was out of time. She had known of her condition, but said she had no sufficient reason to see that . .
Cited – Tan and Another v Sitkowski CA 1-Feb-2007
The tenant claimed Rent Act protection for his tenancy. He had been rehoused and began his tenancy in 1970 with the ground floor used as a shop, and the first floor as living accomodation. He later abandoned the business use. He appealed a finding . .
Cited – Symbian Ltd v Comptroller General of Patents CA 8-Oct-2008
No Pattern Established to Patent Computer Systems
The Comptroller appealed against the decision in Chancery to grant a patent to the clamant for an invention which the comptroller said should have been excluded from protection under section 1(2) as a computer program. It was argued that the UK was . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Singh v The Members of The Management Committe of The Bristol Sikh Temple and Others EAT 14-Feb-2012
EAT WORKING TIME REGULATIONS – Worker
NATIONAL MINIMUM WAGE ACT – Worker
The issue was whether the Priest at a Sikh Temple was a ‘worker’ within section 54(3)(b) of the National Minimum Wage Act 1998. . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
Cited – Baxendale Ltd and Another v Revenue and Customs FTTTx 4-Jul-2013
FTTTx PROCEDURE – striking out of proceedings – whether appellants’ case had a reasonable prospect of succeeding – abuse of process – whether Court of Appeal decision in David Baxendale was per incuriam or . .
Cited – Morelle Ltd v Wakeling CA 1955
The plaintiff asserted ownership of leasehold land. A similar situation had arisen in an earlier case befoe the Court of appeal, and the court was asked to decide that that case had been decided per incuriam.
Held: The per incuriam principle . .
Cited – Henderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .

Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.179844

Albany Home Loans Ltd v Massey: CA 1997

It is generally not appropriate to order possession against one of two mortgagors where the order would be of no benefit to the mortgagee, particularly where the joint mortgagors were husband and wife. An ordinary order for possession might be pointless if immediately it was complied with it, the joint mortgagor, who was allowed to remain in possession, simply granted the other joint mortgagor a licence to retake possession.
Although the Convention was not yet part of UK law, Schiemann felt able to use it as a clue to the problems faced here.

Schiemann LJ
[1997] 2 All ER 609
European Convention on Human Rights 8
England and Wales
Cited by:
Cited – The Co-Operative Bank Plc v Phillips ChD 21-Aug-2014
coop_phillipsChD1408
The bank had brought possession proceedings against the defendant under two legal charges securing personal guarantees. The proceedings had been abandoned, but the court now was asked whether costs for the defendant should be on the standard or . .

Lists of cited by and citing cases may be incomplete.

Land, Human Rights

Updated: 01 November 2021; Ref: scu.536056

Gold Group Properties Ltd v BDW Trading Ltd: TCC 3 Mar 2010

The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called on to purchase the properrties at the price stated because they would be unable to sell without making substantial losses.
Held: The minimum prices scheduled were not a condition precedent to the carrying out by Barratt of the building works themselves. There was no express term to that effect anywhere in the agreement, and none was identified during the course of argument. Neither can the other terms of the agreement be read so as to give rise to such a condition. The possibility that prices would drop was within the anticipation of the parties, and not having made provision for it, they undertook the associated risk, and nor was there any identifiable supervening event.
However the request for summary judgment was refused because of the lack of clarity in the possibility that the claimant had accepted the defendant’s repudiatory conduct.

Coulson J
[2010] EWHC 323 (TCC), [2010] BLR 235
Bailii
England and Wales
Citing:
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – International Finance Corporation v Utexafrica SPRL ComC 9-May-2001
The defendant applied to have set aside judgement entered against him in default of acknowledgment of service.
Held: The authorities make it plain that, in order to satisfy the test for resisting a summary claim for for wrongful repudiation . .
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Nelson Line (Liverpool) Ltd v James Nelson and Sons Ltd HL 1908
Where there is in a contract an absolute promise with an exception engrafted upon it, the exception is to be construed strictly, and extends only so far as it is expressed with clearness and certainty. The parties to an agreement may contract . .
Cited – British Movietone News Limited v London and District Cinemas Limited HL 26-Jul-1951
Film distributors contracted to supply newsreels at a cinematic theatre. The contract was for a minimum of 26 weeks, and after on termination by the distributors on four weeks notice thereafter, but by the cinema on four weeks after the first month. . .
Cited – Smallman v Smallman CA 1972
An order was sought under the 1882 Act to decide the shares in which the family home was to be held. An overall agreement had been negotiated in correspondence between solicitors that W should have a half share in the proceeds of sale of the . .
Cited – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
Cited – Krell v Henry CA 1903
Mr Henry contracted to rent a flat located on Pall Mall from the plaintiff, Paul Krell for the daytime and on the days of the forthcoming cornation procession.. He was told that he would have an excellent view of, but this was not written down. He . .
Cited – Maritime National Fish Ltd v Ocean Trawlers Ltd PC 12-Apr-1935
(Nova Scotia En Banco) The parties contracted for a charter of a fishing ship. It then became unlawful for a ship to use otter trawl, the only equipment available to the ship, without a licence, but the number of licences was restricted and did not . .
Cited – CTI Group Inc v Transclear Sa CA 22-Jul-2008
The court rejected a claim for frustration. Numerous authorities showed that the fact that a supplier chose not to make goods available for shipment, thus rendering performance by the seller impossible, was not of itself sufficient to frustrate a . .
Cited – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
Cited – Edwinton Commercial Corporation and Another v Tsavliris Russ (Worldwide Salvage and Towage) Ltd (the Sea Angel) CA 12-Jun-2007
The court considered whether a delay of some three or so months towards the end of a short (20 day) time charter, caused by reason of the unlawful detention of the vessel by port authorities, in a salvage context, has frustrated that charter. . .
Cited – McAlpine Humberoak Limited v McDermott International Inc 1992
The fact that the parties have foreseen the event but not made any provision for it in their contract will usually, but not necessarily, prevent the doctrine of frustration from applying when the event occurs. . .
Cited – Lauritzen A/A v Wijsmuller BV;( ‘The Super Servant Two’) CA 12-Oct-1989
Bingham LJ discussed the nature of frustration of contract: ‘The essence of frustration is that it is caused by some unforeseen supervening event over which the parties to the contract have no control and for which they are therefore not . .
Cited – National Carriers Ltd v Panalpina (Northern) Ltd HL 11-Dec-1980
No Frustration of Lease through loss of access
The tenant’s access to the premises was closed by the local authority because it passed by a derelict and dangerous building. The tenant argued that its tenancy was frustrated.
Held: The lease was not frustrated. The lease had a term of ten . .
Cited – Pioneer Shipping Ltd v BTP Tioxide Ltd (‘The Nema’) HL 1982
There is no fetter on the judicial discretion to refuse leave under Section 1(3)(b) to appeal against an arbitration award.
Frustration of a contract is ‘not likely to be invoked to relieve contracting parties of the normal consequences of . .
Cited – Suisse Atlantique Societe d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale HL 1966
No magic in the words “fundamental breach”
There is no rule of law which prevents parties to a contract agreeing to limit their respective liabilities. It is a question of the construction of the particular clause as to whether it applies to a fundamental breach or not. The court doubted the . .
Cited – Federal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
Cited – Latvian Shipping Company and Others v Stocznia Gdanska Sa CA 21-Jun-2002
A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by . .
Cited – State Trading Corporation of India Ltd v M Golodetz Ltd CA 1989
Kerr LJ said: ‘What is commonly referred to as an acceptance of a repudiation must be communicated to the party in breach or at least overtly evinced. . An unequivocal act which is inconsistent with the subsistence of the contract may be sufficient, . .
Cited – Federal Commerce Ltd v Molena Alpha Inc (The Nanfri) HL 1979
The charterers of three ships on time charter had made deductions from time charter hire payments which the shipowners regarded as unjustified. In retaliation the shipowners purported to revoke the authority of the Charterers (to be implied under . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 01 November 2021; Ref: scu.402487

Royal Bank of Scotland Plc v Wilson and Another: SC 24 Nov 2010

(Scotland) Neighbours had each granted a standard security over their respective properties to the bank. The charge agreements contained personal covenants to repay the sums borrowed on demand. The land-owners appealed against an order for ejectment.
Held: The borrowers’ appeal succeeded. The 1970 Act created the standard security but it was a very technical Act. The chargors said that the notice given by the bank was defective under the Act having failed to state that it was exercising its powers under the charge, and failing to give notice to each chargor. Instead of applying under the notice, the bank applied under section 24. However, section 24 could not be used in substitution for a calling up notice. A certificate of default is an item of evidence created for use in proceedings and is not a ‘formal requisition’ under section 5, since that requisition has to be made before any proceedings are begun.
Section 19(1) imposes mandatory requirements, and is not merely permissive.

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Clarke
[2010] UKSC 50, UKSC 2009/0228, 2010 SLT 1227, 2010 GWD 39-792, 2010 Hous LR 88, 2010 SLT 1227
Bailii, SC Summary, SC, Bailii Summary
Conveyancing and Feudal Reform (Scotland) Act 1970 5 19(1) 24, Heritable Securities (Scotland) Act 1894 5
Scotland
Citing:
Cited – AIB Group (UK) Plc (Formerly Allied Irish Banks Plc and AIB Finance Limited) v Martin and Another HL 13-Dec-2001
Where a mortgage was taken out by business partners, their liability was joint and several. Partners had taken out a loan, but the terms of the mortgage appeared to make each debtor liable for all sums due from either of them, including for debts to . .
See Also – The Royal Bank of Scotland Plc v Wilson and Wilson (Ap) Wilson and Wilson OHCS 9-Jul-2003
. .
Appeal from – Royal Bank of Scotland Plc v Wilson and Others SCS 5-May-2009
The bank appealed against refusal of ejectment under a charge.
Held: The appeal failed. . .
Cited – Multi-Link Leisure Developments v North Lanarkshire Council SCS 30-Dec-2009
Landlords appealed against a ruling that the ‘full market value’ of the presents to be paid by the tenants on exercising an option contained in their lease was to be set by reference to its intended use.
Held: The appeal succeeded. The words . .

Lists of cited by and citing cases may be incomplete.

Banking, Land

Updated: 01 November 2021; Ref: scu.426474

Transport for London (London Underground Ltd) v Spirerose Ltd: HL 30 Jul 2009

Compulsory Purchase Compensation – Land As it Is

The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as equal to certainty.
Held: The appeal succeeded. The land should not be valued on the basis that it actually had planning permission for residential development. The CA had ‘assumed that a case in which the owner was unable to take advantage of any statutory assumption (whether under section 16 of the 1961 Act, or under a certificate of appropriate alternative development issued under section 17) was an anomaly to be remedied in the interests of fairness. But Parliament has enacted a statutory code of some complexity demonstrating that it does not regard all these cases as ‘materially similar.’ For the Court to try to correct the code in accordance with its perception of what is fair would amount to judicial legislation. It would upset the balance of the code which Parliament must be supposed to have considered carefully. ‘
Lord Collins said: ‘there is no basis in authority or in principle for the conclusion that it is open to the court in effect to establish an assumption that planning permission would be obtained, by analogy with the specific statutory rules which create the assumption.’
Lord Walker observed that the Pointe Gourde principle ‘is essentially concerned with statutory construction . . not . . with the meaning of a particular word or phrase which has appeared in a succession of statutes dealing with the same subject-matter, but with the general attitude and expectation with which the Court should approach a statute dealing with compensation for the compulsory acquisition of land operating, as it is put in Bennion, Statutory Interpretation, 5th ed (2008), p442, as a ‘special interpretative convention’.’

Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Mance, Lord Neuberger of Abbotsbury, Lord Collins of Mapesbury
[2009] UKHL 44, Times 17-Aug-2009, [2009] NPC 104, [2009] 4 All ER 810, [2009] PTSR 1371, [2009] RVR 225, [2009] 1 WLR 1797
Bailii
Land Compensation Act 1961 5(2)
England and Wales
Citing:
Cited – Stebbing v Metropolitan Board of Works 1870
In compensation for compulsory purchase (in this case, of graveyards), ‘value’ means value to the owner, not value to the purchaser. The graveyards were therefore of little or no value to the rector.
Cockburn CJ said: ‘When Parliament gives . .
Cited – In re Lucas and Chesterfield Gas and Water Board CA 1909
Land suitable for construction of a reservoir was the subject of a compulsory purchase for that purpose. The circumstances made it very unlikely that anyone other than the Water Board would have wanted, or been able, to construct the reservoir and . .
Appeal from – Transport for London v Spirerose Ltd (In Administration) CA 13-Nov-2008
The parties disputed the compensation to be awarded on the compulsory acquisition of land and in particular as to whether ‘the site should be valued on the basis (a) (as the tribunal held) of its full value with planning permission for a mixed use . .
At LT – Spirerose Ltd v Transport for London LT 16-Nov-2007
LT COMPENSATION – compulsory purchase – acquisition of former industrial premises – claim for loss of development value – valuation – planning permission in no-scheme world – whether planning permission that . .
Cited – Horn v Sunderland Corporation CA 1941
Compulsory Purchase Damages limited to Actual Loss
Rule (6) was designed to preserve the effect of the 19th Century case-law under the 1845 Act, by which personal loss caused by the compulsory acquisition was treated as part of the value to the owner of the land: ‘the owner in a proper case – that . .
Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Cited – Inland Revenue Commissioners v Clay CA 1914
The court considered the market value of a private residence. The evidence was that its value to persons wishing to use it as a private residence was 750 pounds. However, the house adjoined a nurses’ home the trustees of which wanted to extend their . .
Cited – Barras v Aberdeen Steam Trawling and Fishing Co HL 17-Mar-1933
The court looked at the inference that a statute’s draughtsman could be assumed when using a phrase to rely on a known interpretation of that phrase.
Viscount Buckmaster said: ‘It has long been a well established principle to be applied in the . .
Cited – Raza Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatan (The Indian Case) PC 1939
Land was to be acquired for anti-malarial works relating to a harbour development. Lord Romer rejected the suggestion in a compulsory purchase valuation that it would be possible to ascertain the potential special value of land to a ‘special . .
Cited – Camrose v Basingstoke Corporation CA 1966
Basingstoke was to be expanded to receive overspill population from London and the corporation contracted to purchase about 550 acres from a landowner on terms that the price would be assessed as though the land had been compulsorily acquired under . .
Cited – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Cited – Wildtree Hotels Ltd and others v Harrow London Borough Council HL 22-Jun-2000
The compensation which was payable for disturbance, when works were carried out on land acquired compulsorily, did not extend to the damage caused by noise dust and vibration arising from the works. Where however damage could be brought within the . .
Cited – Rugby Joint Water Board v Shaw-Fox HL 1973
The water board obtained a compulsory purchase order to buy agricultural land adjoining a reservoir. The land was subject to protected tenancies under the 1948 Act.
Held: (Majority) Because the land subject to notices to treat was required for . .
Cited – Wilson v Liverpool Corporation CA 1971
The claimants owned 74 acres of an area of 391 acres in Liverpool which the Corporation wanted to acquire for residential development. The authority acquired the land by agreement and made a compulsory purchase order in respect of the remainder.
Cited – Jelson Ltd v Blaby District Council CA 1977
A strip of land had been originally reserved for a road, and was subsequently sold to the council under a purchase notice. A claim for compensation was made. On appeal the Minister issued a nil certificate on the basis that the correct time at which . .
Cited – Waters and others v Welsh Development Agency CA 28-Jun-2002
The claimant’s land was subject to a compulsory purchase order to make land available for a scheme to make possible a much larger and more valuable scheme. He asserted that the compensation should be calculated in accordance with the value of the . .
Cited – Porter v Secretary of State for Transport CA 1996
Land had been compulsorily acquired for a road. The plaintiff was granted on appeal under section 18 of the 1961 Act a certificate of appropriate alternative development in respect of the land acquired, namely that the land acquired would have been . .

Cited by:
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – J S Bloor (Wilmslow) Ltd v Homes and Communities Agency CA 22-May-2015
The land owner challenged the amount awarded on the compulsory purchase of land. Although agricultural, it had substantial hope value with possible residential development.
Held: The assessment of compensation should be remitted to the Upper . .
Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .

Lists of cited by and citing cases may be incomplete.

Land, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.368932

Regan v Paul Properties Ltd and others: CA 26 Oct 2006

The court considered the appropriate remedy after a finding of infringement of a right to light, and in particular: ‘whether the proper remedy for infringement in this case is damages for nuisance, as ordered by the court below, or whether a mandatory injunction should be granted requiring part of a building in the course of construction to be pulled down. ‘
The court rejected the trial judge’s view that, where the defendant’s building interfered with the claimant’s right to light, the onus was on the claimant to show that damages were not an adequate remedy.
Mummery LJ said: ‘Shelfer is the best known case. It is a decision of the Court of Appeal. It has never been overruled and it is binding on this court. The cause of action was nuisance, as in this case, though in the form of noise and vibration rather than interference with a right of light.
36 Shelfer has, for over a century, been the leading case on the power of the court to award damages instead of an injunction. It is authority for the following propositions which I derive from the judgments of Lord Halsbury and Lindley and A L Smith LJJ. (1) A claimant is prima facie entitled to an injunction against a person committing a wrongful act, such as continuing nuisance, which invades the claimant’s legal right. (2) The wrongdoer is not entitled to ask the court to sanction his wrongdoing by purchasing the claimant’s rights on payment of damages assessed by the court. (3) The court has jurisdiction to award damages instead of an injunction, even in cases of a continuing nuisance; but the jurisdiction does not mean that the court is ‘a tribunal for legalising wrongful acts’ by a defendant, who is able and willing to pay damages: per Lindley LJ at pp 315 and 316. (4) The judicial discretion to award damages in lieu should pay attention to well settled principles and should not be exercised to deprive a claimant of his prima facie right ‘except under very special circumstances’: per Lindley LJ at pp 315 and 316. (5) Although it is not possible to specify all the circumstances relevant to the exercise of the discretion or to lay down rules for its exercise, the judgments indicated that it was relevant to consider the following factors: whether the injury to the claimant’s legal rights was small; whether it could be adequately compensated by a small money payment; whether it would be oppressive to grant an injunction; whether the claimant had shown that he only wanted money; whether the conduct of the claimant rendered it unjust to grant him more than pecuniary relief; and whether there were any other circumstances which justified the refusal of an injunction: see A L Smith at pp 322 and 323, and Lindley LJ at p 317.
In my judgment, none of the above propositions has been overruled by later decisions of any higher court or of this court.’

Mummery, Tuckey, Wilson LJJ
[2007] Ch 135, [2006] EWCA Civ 1391, [2007] 4 All ER 48
Bailii
England and Wales
Citing:
Appeal from – Regan v Paul Properties DPF No 1 Ltd and others ChD 27-Jul-2006
The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .

Cited by:
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Cited – HKRUK II (CHC) Ltd v Heaney ChD 3-Sep-2010
The claimant sought a declaration that its property was free of a suggested right of light in favour of its neighbour . .

Lists of cited by and citing cases may be incomplete.

Land, Nuisance, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.270197

Dixon and Another v Hodgson and Others: CA 20 Dec 2011

The parties were in a boundary dispute. The court warned of the danger of deciding where a boundary is by simply relying on the physical appearance of the ground features to the neglect or exclusion of the title documents. The Recorder had found that the boundary ran alongside a low wall.
Held: In so finding, he had wrongly discarded the transfer plan completely because of its lack of clarity and had construed: ‘the Transfer by looking at the physical features on the ground as at the date of the Transfer without the plan in his hand. A reasonable layman without the plan no doubt would have concluded as the Recorder did that the low wall was the boundary but he would have been engaged in the exercise of construction without one of the most important pieces of evidence.’
Black LJ, with whom Sir David Keene and Longmore LJ agreed, added: ‘I differ from the Recorder reluctantly as he went about his task with conspicuous care and he had the great advantage of being able to visit the site itself. I have not found the issues here at all easy to determine as the sight of an obvious boundary structure, such as the low wall, in place at the time of the Transfer, naturally gives rise to the assumption that that is indeed the boundary. However, as Beale v.Harvey shows, that natural assumption is not the end of the matter and I would allow the appeal. ‘

Longmore, Black LJJ, Sir D Keene
[2011] EWCA Civ 1612
Bailii
England and Wales
Citing:
Cited – Scarfe v Adams CA 1981
Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .
Cited – Beale v Harvey CA 28-Nov-2003
Land had been divided into three lots on its development, but the site plan did not match the line of a fence actually erected.
Held: The court was not bound by the Watcham case, and would not follow it to allow reference to the later . .

Cited by:
Cited – Cameron v Boggiano and Another CA 21-Feb-2012
The parties disputed the boundary between their neighbouring properties. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 November 2021; Ref: scu.450105

Hunt v Luck: CA 1902

Dr Hunt owned properties for which the rents were collected by his agent. The land were conveyed to a Mr Gilbert, who then mortgaged them. After the doctor’s death, his personal representatives challenged the validity of the conveyance. When the court rejected a challenge to the validity of the deed of conveyance, the claimants said that the mortgagee had notice of the tenancies, and through that, constructive notice of the interest of the claimants as receiver of the rents.
Held: The representative’s appeal failed. A purchaser will have constructive notice of any rights reasonably discoverable by inspection of the property, and, in particular, from enquiry of any occupier as to his interets and those of which he holds it. This does not extend to the rights of a landlord.
Vaughan Williams LJ said that: ‘if a purchaser or mortgageee has notice that the vendor or mortgagor is not in possession of the property, he must make enquiries of the person in possession, of the tenant who is in possession, and find out from him what his rights are, and if he does not choose to do that then whatever title he acquires as purchaser or mortgagee, will be subject to the title or right of the tenant in possession. I do not think that there is, for the purpose of ascertaining the title of the vendor, any obligation on the purchaser to make enquiries of a tenant with reference to anything but the possession and interest of the tenant.’

Vaughan Williams LJ
[1902] 1 Ch 428
England and Wales
Citing:
Appeal from – Hunt v Luck 1901
The court considered the nature of constructive notice. Farwell J said: ‘Constructive notice is the knowledge which the courts impute to a person upon presumption so strong of the existence of the knowledge that it cannot be allowed to be rebutted, . .

Cited by:
Cited – Hodgson v Marks CA 12-Mar-1971
The plaintiff had transferred her house to her lodger, expressing it to be for her love and affection for him. The judge at first instance had held that the true intention of the plaintiff had been that she would continue to live there as before and . .
Cited – CS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 01 November 2021; Ref: scu.252427

Ex parte Lewis (The Trafalgar Square Case): QBD 2 Jul 1888

L sought to assert a right to hold public meetings in Trafalgar Square.
Held: (obiter) There was no public right to occupy Trafalgar Square for the purpose of holding public meetings. The Commissioners of Works and Public Buildings (in whom the care, control, management and regulations of the Square was vested) had power to prohibit the holding of such meetings there.
The Commissioners of Works and Public Buildings (in whom the care, control, management and regulations of Trafalgar Square is vested) have power to prohibit the holding of meetings on it, and there was no general right on the part of the public to occupy Trafalgar Square for the purpose of holding public meetings.
Wills J said that an assembly ‘to the detriment of others having equal rights [is] in its nature irreconcilable with the right of free passage.’ and ‘The only ‘dedication’ in the legal sense that we are aware of is that of a public right of passage, of which the legal description is a ‘right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance.’ A claim on the part of persons so minded to assemble in any numbers, and for so long a time as they please to remain assembled, upon a highway, to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage, and there is, so far as we have been able to ascertain, no authority whatever in favour of it . . Things are done every day, in every part of the kingdom, without let or hindrance, which there is not and cannot be a legal right to do, and not unfrequently are submitted to with a good grace because they are in their nature incapable, by whatever amount of user, of growing into a right’.
As to the issue of a summons by the magistrates: ”Nothing can be clearer or more settled than that if the justices have really and bona fide exercised their discretion, and brought their minds to bear upon the question whether they ought to grant the summons or not, this court is no court of appeal from the justices, and has no jurisdiction to compel them to exercise their judgment in a particular way.’

Wills J, Grantham J
(1888) 21 QBD 191, [1888] UKLawRpKQB 135
Commonlii
England and Wales
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 . .
Cited – Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs and Another Admn 19-Jul-2012
The court was asked: ‘can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?’ A path had been registered over part of te claimant’s land, but with no . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – Other, Magistrates

Leading Case

Updated: 01 November 2021; Ref: scu.192187

Re Stirrup’s Contract: 1961

The parties disputed whether good title had been shown when an assent under seal had been used where a conveyance ordinarily should have been used.
Held: Good title had been shown. Though the law is concerned with substance rather than form, it would not be consistent with the orderly development of the common law if the court could, as a matter of construction, produce the result that it believed the parties to the contract wanted by rewriting the contract.
Wilberforce J said that a purchaser of land is entitled to be satisfied ‘that his vendor is seized of the estate which he is purporting to sell, in this case the fee simple, and that he is in a position, without the possibility of dispute or litigation, to pass that fee simple to the purchaser.’ and
‘Section 63 states that every conveyance is effectual to pass all the estate which the conveying party has or which is intended to be so passed; and if that is read in conjunction with the definition section, Section 205 (1) (ii), by which the expression ‘conveyance’ includes an assent, that produces the result that an assent, provided that it is under seal, is effective to pass whatever estate the conveying party has.
I would be reluctant to decide this case on the basis of a mechanical argument of that kind alone, but I think on the broad framework of the Act, provided that the sole form of requirement of being under seal is complied with, any document, since 1925, at any rate, is effective to pass a legal estate, provided that the intention so to pass it can be ascertained.
I therefore feel on both those branches of the argument that the vendor here is correct in saying that, although the document is described as an assent, and although admittedly the case was not one for which an assent should be used, yet, nevertheless, on the intention to be ascertained from it and having regard to the statutory provisions, it was perfectly effective to pass the fee simple to the purchaser, and I propose so to declare.’ and
Where the title shown is less than perfect, the question is whether the risk is ‘so remote or so shadowy as to be one to which no serious attention need be paid . . the test must always be, would the court, in an action for specific performance at the instance of the vendors, force a title containing the alleged defect upon a reluctant purchaser ?’

Wilberforce J
[1961] 1 WLR 449
Law of Property Act 1925 63 20(91)
Cited by:
Cited – PW and Co v Milton Gate Investments Ltd (BT Property Ltd and another, Part 20 defendants) ChD 8-Aug-2003
The parties, head lessor and sub-lessess, had assumed that following Brown -v- Wilson the sub-lease would continue upon the determination of the head lease, and had overlooked Pennell which overruled Brown v Wilson. However the lease made express . .
Cited – Barclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co CA 21-May-1998
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .
Cited – Harbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .
Cited – Barclays Bank Plc v Weeks Legg and Dean ChD 26-Feb-1996
The failure by a conveyancer to disclose a right of way either to his lay client or to the lender was not a breach of his undertaking to acquire a good and marketable title. The Solicitor had applied the money in accordance with the undertaking even . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Leading Case

Updated: 01 November 2021; Ref: scu.190576

Peacock and Another v Custins and Another: CA 14 Nov 2000

The conveyance of a field constituting the dominant land to the claimants was expressed to be subject to the benefit of a right of way over land owned by the defendants, enabling the claimants to reach the dominant land ‘at all times and for all purposes in connection with the use and enjoyment of the property hereby conveyed’. The purchaser came to farm the purchased field as one unit with another field, and sought a declaration that the right of way was for the benefit of both fields.
Held: In construing such a grant the court was concerned with the identity of the land, and purpose of the grant, not with the extent of its use. Nevertheless, the declaration sought to identify different land and must not be granted.
Schiemann LJ said: ‘where a court is being asked to declare whether the right to use a way comprises a right to use it to facilitate the cultivation of land other than the dominant tenement, the court is not concerned with any comparison between the amount of use made or to be made of the servient tenement and the amount of use made or that might lawfully be made within the scope of the grant. It is concerned with declaring the scope of the grant, having regard to its purposes and the identity of the dominant tenement. The authorities indicate that the burden on the owner of the servient tenement is not to be increased without his consent. But burden in this context does not refer to the number of journeys or the weight of the vehicles. Any use of the way is, in contemplation of law, a burden and one must ask whether the grantor agreed to the grantee making use of the way for that purpose all three judges (in Harris) were addressing not the question of additional user, but the different question: whether the white land was being used for purposes which were not merely adjuncts to the honest use of the pink land (the dominant tenement); or, rephrasing the same question, whether the way was being used for the purposes of the white land as well as the dominant tenement.
It is in our judgment clear that the grantor did not authorise the use of the way for the purpose of cultivating the blue land. This can not sensibly be described as ancillary to the cultivation of [Whiteacre].’

Schiemann, Mance LJJ, Smith J
Gazette 15-Dec-2000, Times 15-Dec-2000, [2000] EWCA Civ 1958, [2001] 2 All ER 827, [2002] 1 WLR 1815
Bailii
England and Wales
Citing:
Affirmed – Harris v Flower CA 1904
The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way . .
Cited – Skull And Another v Glenister And Others 1864
A right of way appurtenant to land passes to the tenant by a parol demise of the land, though nothiiig is said about it at the time of the demise. – A, having a right of way to D close, demised the close to B. The latter, being possessed of an . .
Cited – Inverugie Investments Ltd v Hackett PC 1995
The plaintiff was the lessee of 30 apartments within a hotel complex. The defendants ejected the plaintiff and for some years used the apartments as part of the hotel with an average occupancy rate of not more than 40%.
Held: The defendants . .
Cited – Stoke-on-Trent City Council v W and J Wass Ltd CA 1988
The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council . .

Cited by:
Cited – Sargeant and Another v Macepark (Whittlebury) Ltd ChD 5-Mar-2003
The servient owner granted a lease of easements to the dominant owner, to provide a means of access to the dominant land, and from the dominant land (an hotel) to the Silverstone racing circuit. Subsequently the hotel owner negotiated a more direct . .
Cited – Wall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 01 November 2021; Ref: scu.145437

London County Council v Allen: 1914

A landowner applied to the plaintiffs for their sanction to a new street scheme. It was given but subject to his covenant to keep certain land unbuilt upon. He gave the covenant. The plaintiffs themselves had no land in the area capable of benefitting, and it was conceded that the covenant did not run with the land at law. The land was sold to the defendant who had notice of the restrictive covenant, but built upon the land. The plaintiffs sought to enforce the covenant.
Held: The purchaser was not bound at law or in equity despite notice if the covenantee is not in possession of or interested in the land which was intended to benefit. Scrutton J described the mischief arising on the sale of land by local authorities: ‘For I regard it as very regrettable that a public body should be prevented from enforcing a restriction on the use of property imposed for the public benefit against persons who bought the property knowing of the restriction, by the apparently immaterial circumstance that the public body does not own any land in the immediate neighbourhood. But, after a careful consideration of the authorities, I am forced to the view that the later decisions of this Court compel me so to hold.’

Scrutton J
[1914] 3 KB 642
England and Wales
Citing:
Criticised – Tulk v Moxhay 22-Dec-1848
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .

Cited by:
Cited – Half Moon Bay Limited v Crown Eagle Hotels Limited PC 20-May-2002
Strips of land lay between the two hotels operated by the parties. Restrictive covenants had been entered into by the respondent’s predecessors in title. The claimant brought proceedings to enforce the restrictions on the use of the land. An earlier . .
Cited – Cantrell v Wycombe District Council CA 29-Jul-2008
The appellant had bought a house at auction. It had previously been sold by a local authority subject to a covenant by the buyer allowing the authority to nominate tenants. The covenant was said to be binding on successors in title, and was . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 01 November 2021; Ref: scu.180910

Neilson v Poole: ChD 1969

Significance of Boundary agreements

The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where the land is situated and to prevent the plan from controlling the parcels in the body of the conveyance.’ The words ‘for the purpose of identification only more particularly delineated on the plan’ were a form of words that might ‘appear to the literalist to amalgamate conventional forms of expression and tend towards ‘a mutually stultifying’ conclusion. Nevertheless: ‘Certainly I do not think that they give the plan any predominance over the parcels.’
‘Now a boundary agreement may constitute a contract to convey land. The parties may agree that in return for a concession by A in one place, straightening the line of division, B will make a concession in another place; and the agreement may thus be one for the conveyance of land. But there is another type of boundary agreement. This does no more than identify on the ground what the documents describe in words or delineate on plans. Nothing is transferred, at any rate consciously; the agreement is to identify and not to convey. In such a case, I do not see how the agreement can be said to constitute a contract to convey land.
In general, I think that a boundary agreement will be presumed to fall into this latter category. ‘

Megarry J discussed the effect of the earlier oral settlement of the parties’ boundary dispute: ‘I must too bear in mind that a boundary agreement is in its nature an act of peace, quieting strife and averting litigation and so is to be favoured in the law. I also bear in mind that many boundary agreements are of the most informal nature.’ and ‘The law ought not to encourage people to be aggressive about their rights by a fear that in granting any indulgence they will be treated as having yielded up their rights. A man who puts in garden canes short of the point that he considers to be the true, although unmarked boundary, in order to serve as a warning to himself and others against any arguable trespass onto his neighbour’s land ought not to be treated as having thereby represented that the canes show the true boundary.’
And: ‘Now a boundary agreement may constitute a contract to convey land. The parties may agree that in return for a concession by A in one place, straightening the line of division, B will make a concession in another place; and the agreement may thus be one for the conveyance of land. But there is another type of boundary agreement. This does no more than identify on the ground what the documents describe in words or delineate on plans. Nothing is transferred, at any rate consciously; the agreement is to identify and not to convey. In such a case, I do not see how the agreement can be said to constitute a contract to convey land . . In general, I think that a boundary agreement will be presumed to fall into this latter category. In short, in my judgment, a boundary agreement is presumed not to convey land: the presumption may be rebutted, but unless it is, the agreement is not registerable; and to point to circumstances of doubt or uncertainty is not to rebut the presumption.’

Megarry J considered how parcels clauses were to be construed: ‘in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result. The prime function of a conveyance is to convey. As to any particular parcel of land, either the conveyance conveys it, or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed. The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were. Yet modern conveyances are all too often indefinite or contradictory in their parcels. In such circumstances, to reject any evidence afforded by what the common vendor has done in subsequent conveyances seems to me to require justification by some convincing ground of judicial policy; and I have heard none.’

Megarry J
[1969] 20 P and CR 909
England and Wales
Citing:
Applied – Watcham v Attorney-General of the East Africa Protectorate PC 1919
The Watchams held land along the bank of the Nairobi River. It had been conveyed to them by the Crown by a certificate under the East African Land Regulations. The certificate gave the area transferred as ’66 3/4 acres, or thereabouts’, but included . .

Cited by:
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 – Stephenson and Another v Johnson and Another CA 12-Jul-2000
There had been a dispute as to the correct boundary between two properties in North Yorkshire. The land had been in common ownership until 1973. The 1973 conveyance showed the boundary in a position which the claimants said was determinative. The . .
Cited – Druce v Druce CA 11-Feb-2003
The parties disputed the extent of land conveyed. The conveyance described the plan as for identification purposes only but the decsription went on to say that it was ‘more particularly delineated on’.
Held: In the circumstances the plan would . .
Explained – Wigginton and Milner Ltd v Winster Engineering Ltd CA 7-Dec-1977
Various conveyances had dealt with land. By mistake, certain land was excluded from the plans.
Held: The plan had been included ‘for identification purposes only’, but that did not mean that the plan was to be disregarded. It could not . .
Followed – Burns and Burns v Morton CA 27-May-1999
The parties disputed the line of the boundary between their neighbouring properties.
Held: The appeal failed: ‘the conveyance in respect of each property refers to the wall between the properties as being a division or dividing wall. That . .
Cited – Flack v Lanzante CA 28-Aug-2002
Renewed application for leave to appeal. Boundary dispute. Boundary agreement shown – leave refused. . .
Cited – Scarfe v Adams CA 1981
Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .
Cited – Ali v Lane and Another CA 21-Nov-2006
The parties disputed the boundary between their neighbouring plots of land.
Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it . .
Cited – Hawkes v Howe CA 29-Jul-2002
The parties were neighbours. One asserted that the other had trespassed in a building by 2.5 inches. The defendant appealed an award of damages. A garage had been built over the boundary by a previous occupier but by agreement. The new owner . .
Cited – Piper and Another v Wakeford and Another CA 17-Dec-2008
The parties disputed the boundary between their land.
Held: The judge had been entitled to rely on the evidence he had accepted, and had been entitled to find on the factual basis asserted. . .
Cited – Pennock and Another v Hodgson CA 27-Jul-2010
In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
Cited – ACCO Properties Ltd v Severn and Another ChD 1-Apr-2011
The parties disputed the boundary between their respective plots.
Held: Simon Barker QC J set out (and then applied) the principles for resolving boundary lines: ‘1 Where, as in this case, the property in question is registered land, the file . .
Cited – Bradley and Another v Heslin and Another ChD 9-Oct-2014
The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 01 November 2021; Ref: scu.183680

Jaggard v Sawyer and Another: CA 18 Jul 1994

Recovery of damages after Refusal of Injunction

The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
A court may substitute damages for the grant of an injunction if an injunction would be oppressive. Referring to Wrotham Park, Sir Thomas Bingham MR said: ‘I cannot, however, accept that Brightman J’s assessment of damages in the Wrotham Park case was based on other than compensatory principles. The defendants had committed a breach of covenant, the effects of which continued. The judge was not willing to order the defendants to undo the continuing effects of that breach. He had therefore to assess the damages necessary to compensate the plaintiffs for this continuing invasion of their right. He paid attention to the profits earned by the defendants, as it seemed to me, not in order to strip the defendants of their unjust gains, but because of the obvious relationship between the profits earned by the defendants and the sum which the defendants could reasonably have been willing to pay to secure a release from the covenant. I am reassured to find that this is the view taken of the Wrotham Park case by Sir Robert Megarry V-C in Tito v Waddell (No.2) [1977] Ch 106, 335.’
CS Millett LJ: ‘It has always been recognised that the practical consequence of withholding injunctive relief is to authorise the continuance of an unlawful state of affairs. If, for example, the defendant threatens to build in such a way that the plaintiff’s light will be obstructed and he is not restrained, then the plaintiff will inevitably be deprived of his legal right. This was the very basis upon which before 1858 the Court of Chancery had made the remedy of injunction available in such cases. After the passing of Lord Cairns’s Act many of the judges warned that the jurisdiction to award damages instead of an injunction should not be exercised as a matter of course so as to legalise the commission of a tort by any defendant who was willing and able to pay compensation.’ Damages awarded under section 50 may relate not only to extant breaches of obligation, but also to future breaches.
He also said: ‘Reported cases are merely illustrations of circumstances in which particular judges have exercised their discretion, in some cases by granting an injunction, and in others by awarding damages instead Since they are all cases on the exercise of a discretion, none of them is a binding authority on how the discretion should be exercised The most that any of them can demonstrate is that in similar circumstances it would not be wrong to exercise the discretion in the same way But it does not follow that it would be wrong to exercise it differently’

Sir Thomas Bingham MR, Millett LJ
Ind Summary 22-Aug-1994, [1995] 1 WLR 269, [1994] EWCA Civ 1, [1995] 13 EG 132, [1995] 2 All ER 189, [1995] 1 EGLR 146, [1994] EGCS 139
Bailii
Supreme Court Act 1981 50, Chancery Amendment Act 1858 5
England and Wales
Citing:
Approved – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Not the last word – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Cowper v Laidler ChD 1903
Buckley J said: ‘The court has affirmed over and over again that the jurisdiction to give damages where it exists is not so to be used as in fact to enable the defendant to purchase from the plaintiff against his will his legal right to the . .
Cited – Isenberg v East India House Estate Co Ltd 1863
The court refused a mandatory injunction to compel the defendant to pull down part of a new building which interfered with the plaintiff’s light and exercised instead the Court of Chancery’s recently-acquired jurisdiction under the 1858 Act to order . .
Not supported – Anchor Brewhouse Developments -v Berkley House (Docklands) Developments 1987
A crane which passes its boom over private land without permission creates an actionable nuisance. Damages could not be awarded so as to remove the plaintiff’s right to bring actions for trespass in the future if the trespass continued: ‘I find some . .
Appeal from – Jaggard v Sawyer CC 1993
(Weymouth County Court) The court refused an injunction to a land owner who complained that a neighbour had erected a building over a right of way. The court awarded damages of andpound;694.44, being a proportionate part of the the sum he might be . .

Cited by:
Cited – Severn Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – Regan v Paul Properties DPF No 1 Ltd and others ChD 27-Jul-2006
The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – Harris v Williams-Wynne ChD 11-Feb-2005
The parties agreed in sale agreement for a plot of land that the buyer would not erect any additional building. He did so, and when he came to try to sell it the original vendor objected. The purchaser’s solicitors registered the agreement for sale. . .
Cited – Winter and Another v Traditional and Contemporary Contracts Ltd CA 7-Nov-2007
The land-owners applied for a variation of a restrictive covenant to allow them to put a second house on their plot. They had bought out the right of the original builder, but a neighbour also had the benefit of the covenant. They now appealed the . .
Cited – Jacklin and Another v Chief Constable of West Yorkshire CA 16-Feb-2007
The claimants asserted a vehicular right of way over land belonging to the defendant poilce authority. The defendant said that it had been abandoned. The judge found that it had not been and granted an injunction to prevent the defendants . .
Cited – Ludlow Music Inc v Williams and others ChD 2-Oct-2000
The claimant sought damages for copyright infringement in respect of two works which parodied a song to which they owned the rights.
Held: The amount copied, being as much as a quarter of the original work, meant that the claim was . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – Watson and others v Croft Promo-Sport Ltd CA 26-Jan-2009
The claimants were neighbours of the Croft motor racing circuit. They alleged nuisance in the levels of noise emanating from the site. The defendants denied nuisance saying that the interference was deemed reasonable since they operated within the . .
Cited – Fisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
Cited – Jones and Another v Ruth and Another CA 12-Jul-2011
The parties were neighbours. The claimants succeeded in their assertion of trespass and nuisance in building works carried out by the defendant. The claimant appealed against the judge’s failure to award damages for harassment, saying that though . .
Approved – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Cited – HKRUK II (CHC) Ltd v Heaney ChD 3-Sep-2010
The claimant sought a declaration that its property was free of a suggested right of light in favour of its neighbour . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Damages, Land

Leading Case

Updated: 01 November 2021; Ref: scu.82468

London Borough of Haringey v Hines: CA 20 Oct 2010

The authority sought rescission of a lease granted to the defendant under the right to buy scheme, saying that she had misrepresented her occupation when applying. The tenant replied that no adequate evidence had been brought that she was not a secure tenant. The authority had set out several statements as to her occupation by her of a different property. It also argued that the grant had been void as ultra vires.
Held: The statements did not amount to a deceit in the way found, containing no direct assertion of the untruth claimed, and nor had the allegation been put to the appellant directly in cross examination. Mrs Hines’ appeal against the award of damages for deceit succeeded. The court below had declined toorder any rectification, and therefore associated claims as to the grant being ultra vires had no purpose. Any potential claim for innocent misrepresentation had not been pleaded or pursued at trial. The council had pushed singularly for fraudulent misrepresentation, and it was not now right to ask what migfht have happened if the trial had been conducted differently.

Pill, Rimer LJJ, Peter Smith J
[2010] EWCA Civ 1111
Bailii
Housing Act 1985 118, Misrepresentation Act 1967 2(1)
England and Wales
Citing:
Cited – London Borough of Sutton v Swann 30-Nov-1985
The defendant had applied to buy his council property, but lost his secure tenancy before completion of the purchase.
Held: He had lost the right to buy the property. . .
Cited – Muir Group Housing Association Ltd v Thornley and Another CA 25-Nov-1992
The tenant’s right to buy the property held under a secure tenancy was lost when, even after the start of the procedure for purchase, the Tenant had let out the house to another, and so ceased to be a secure tenant. . .
Cited – Mary Rushton, Michael Rushton v Worcester City Council CA 16-Mar-2001
The claimants had purchased the first tenant’s council property under the right to buy scheme. The council had failed to disclose facts about its condition which rendered it valueless, but now appealed against the award of damages for . .
Cited – Abbey Forwarding Ltd v Hone and Others ChD 30-Jul-2010
. .
Cited – Vogon International Ltd v Serious Fraud Office CA 4-Feb-2004
The defendant appealed a finding in which the judge had inferred against it serious imputations where neither party had made such an allegation, and the defendant had not been given forewarning of such a finding.
Held: The judge had correctly . .
Cited – Revenue and Customs v Dempster (T/A Boulevard) ChD 24-Jan-2008
The revenue wished to refuse a claim to set off input tax for two transactions involving the alleged purchase of software. They said the transactions were a sham.
Held: The revenue’s appeal failed.
Briggs J said: ‘the critical question . .
Cited – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 November 2021; Ref: scu.425354

Greatorex v Newman and Another: CA 2 Dec 2008

Use at time of grant was determinative

The parties disputed the use of a covered right of way between their properties. One property had been converted to use as a bar, and opened the rear as a beer garden with customers using the passage. The neighbours said that the right of was was limited with the words ‘as now used by her tenant’ to non business use. The bar owner appealed a decision that it was so limited. The bar had been formerly used as a fishmongers.
Held: The issue was not as to construction of the conveyance but as to the use at the time when the right was granted. As such and given the difficulties in establishing the details from such a long time ago, it could not be shown as required by the rules, that the judge’s finding that customers would not have used the passageway was wrong. The appeal failed.
Sedley LJ: ‘Judge O’Brien had simply to consider the probable usage, shortly after the First World War, of a fishmonger’s shop with its frontage on a shopping street of an English market town and with rear access through a side alley. Was it even remotely likely that customers would use, or be expected to use, the rear access? No respectable tradesman would have asked or encouraged them to do so, and no respectable customer would have expected to do so or wanted to be seen doing so. The overwhelming likelihood was that the rear access was used only by suppliers, by Mr Collinson’s own delivery cart and possibly by trade customers.’

Mummery LJ, Sedley LJ, Wilson LJ
[2008] EWCA Civ 1318
Bailii
Civil Procedure Rules 52.11(3)
England and Wales

Land

Updated: 01 November 2021; Ref: scu.278348

Reynolds v Ashby and Son: HL 1904

Machines had been affixed to the premises. The court was asked whether they were caught by a fixed charge over the company’s land and fixed assets.
Held: The machines were fixed by bolts only and no damage would be caused to the building by their removal. Nevertheless, the machines were part of the mortgaged property. In Hobson v Gorringe, Blackburn J ‘was contemplating and referring to circumstances which shewed the degree of annexation and the object of such annexation which were patent for all to see, and not to the circumstances of a chance agreement that might or might not exist between the owner of a chattel and a hirer thereof.’
Lord Lindley observed that: ‘The purpose for which the machines were obtained and fixed seems to me unmistakable; it was to complete and use the buildings as a factory. It is true that the machines could be removed if necessary, but the concrete beds and bolts prepared for them negative any idea of treating the machines when fixed as movable chattels.’

James, Lindley LL
[1904] AC 466, [1904-7] All ER Rep 401
England and Wales
Citing:
Approved – Hobson v Gorringe CA 1897
The intention of the parties in affixing an object to land is only relevant to the extent that it can be derived from the degree and object of the annexation: ‘the intention of the parties as to the ownership of the chattel fixed to the land is only . .

Cited by:
Cited – Elitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .
Cited – Re Hi-Fi Equipment (Cabinets) Limited ChD 11-Jun-1987
The company had charged by way of a first fixed charge all future freehold and leasehold property together with trade fixtures and otherwise. The company used heavy machinery which rested on the floor of its premises. The chargee claimed a fixed . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 01 November 2021; Ref: scu.240415

Rowland v The Environment Agency: CA 19 Dec 2003

The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now private. She appealed an order declaring the continued public rights.
Held: The applicant had not established anything to say that public rights of navigation could be lost by disuse, and no agreement to the contrary. The right of the conservators to erect obstructions did not equate to a private right right. It was clear that for many years the officers of the Authority had acted on the basis that the public rights had been extinguished, and the consequent behaviour did create an expectation that the public rights of way had been extinguished, but that expectation could only be legitimate if the promise could be based in law. Unless the HRA had changed the situation, it could not. Mrs. Rowland’s expectation was a possession entitled to protection under Art. 1 unless the interference by the Defendant with that possession was justified and proportionate.
Peter Gibson LJ set out the principles for claiming legitimate expectation as against a public authority, saying: ‘The public law concept on which Mrs. Rowland relies is that of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power. Lord Lester accepted the judge’s summary of the general principles of English law on this subject as correct . .
By a representation (a term which embraces a regular practice and a course of dealing) a public body does not give rise to an estoppel but may create an expectation in another (‘the citizen’) from which it would be an abuse of power to resile: R v. East Sussex County Council ex parte Reprotech Pebsham Ltd [2002] 4 All ER 58. The principle of good administration prima facie requires adherence by public authorities to their promises. Whether it does so require must be determined in the light of all the circumstances. The public body can only be bound by acts and statements of its employees and agents if and to the extent that they had actual or ostensible authority to bind the public body by their acts and statements: South Bucks District Council v. Flanagan [2002] 1 WLR 2601 at 2607 para 18 per Keene LJ. The relevant representation must be unequivocal and lack any relevant qualification: see R v. Inland Revenue ex parte MFK Underwriting [1990] 1 WLR 1545. The citizen must place all his cards on the table, making full disclosure and his expectation must be objectively reasonable: R v. Secretary of State for Education ex parte Begbie [2000] 1 WLR 1118 (‘Begbie’) per Peter Gibson LJ at p.1124 and Laws LJ at p.1130. Where the expectation relates to matters of substantive law as to which both parties are ignorant or in error, it is relevant both to reasonableness and fairness that the citizen had access to legal advice had he wished to take it: see Henry Boot Homes Ltd v. Bassetlaw DC 28.11.02 CA per Keene LJ at para 58 (‘Boot’). The expectation may be substantive or procedural and the categories of legitimate expectation are not closed: Begbie. Once the claimant has established the legitimate expectation, he must show that it would be unfair of the public body to resile from giving effect to the legitimate expectation.’
Mance LJ said: ‘In R v Secretary of State for Education and Employment, ex p. Begbie . . Laws LJ commented . . that ‘abuse of power has become, or is fast becoming, the root concept which governs and conditions our general principles of public law’ and that ‘it informs all three categories of legitimate expectation case as they have been expounded by this court’ in Coughlan. Later . . he identified as the correct test whether an authority’s change of attitude ‘would be so unfair as to amount to an abuse of power’. He went on . . : ‘As it seems to me the first and third categories in the Coughlan case . . are not hermetically sealed. The facts of the case, viewed always in their proper statutory context, will steer the court to a more or less intrusive quality of review. In some cases a change of tack by a public authority, though unfair from the applicant’s stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear . . In other cases the act or omission complained of may take place on a smaller stage, with far fewer players. Here . . lies the importance of the fact in the Coughlan case . . that few individuals were affected by the promise in question. The case’s facts may be discrete and limited, having no implications for an innominate class of person. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court’s condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power. There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies within what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision . . ‘

Lord Justice Mance Lord Justice May Lord Justice Peter Gibson
[2003] EWCA Civ 1885, Times 20-Jan-2004, Gazette 26-Feb-2004, [2004] 3 WLR 249, [2005] Ch 1
Bailii
Human Rights Act 1998
England and Wales
Citing:
Cited – Regina v The Commissioners of the Thames and Isis 1837
In 1833 Lord Boston complained to the Commissioners about the construction of the Cut above Hedsor Water on the Thames. The Commissioners did not act on the complaint. Accordingly Lord Boston claimed compensation from the Commissioners for the loss . .
Appeal from – Rowland v The Environment Agency ChD 19-Dec-2002
Public rights of Navigation have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The claimant sought a declaration that rights of navigation over that . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Wills Trustees v Cairngorm Canoeing and Sailing School HL 1976
The public right of navigation (PRN) is a right to public use of the river. The river may be used by the public for purposes of exercise and recreation as well as transport and commerce. At common law PRN cannot be lost by lack of use over time. ‘A . .
Cited – Todd v Adams and Chope (Trading as Trelawney Fishing Co) (The ‘Margaretha Maria’) CA 2002
Where the correctness of a finding of primary fact or of inference is in issue (on appeal), it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission . .
Cited – Cory v Bristow HL 1877
The owner of a vessel used for commercial purposes while fixed in position on a long-term basis over moorings on the riverbed could for rating purposes be treated as the occupier of those moorings and the part of the riverbed in which they were . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Regina v Commissioners of Inland Revenue, ex parte Unilever plc CA 1996
The Revenue had refused to exercise a discretion in favour of the taxpayer in the same form it had granted for over twenty years. The taxpayer complained that this was unfair.
Held: The new approach to late applications, brought in without any . .
Cited – Beyeler v Italy ECHR 5-Jan-2000
The concept of ‘possessions’ in Art. 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law, and requires the examination of the question whether the . .
Cited – Pine Valley Developments Ltd And Others v Ireland ECHR 29-Nov-1991
ECHR Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); No violation of P1-1; No violation of Art. 14+P1-1; Violation of Art. 14+P1-1; No violation of Art. 13; Just . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Regina v London Borough of Newham and Manik Bibi and Ataya Al-Nashed CA 26-Apr-2001
CS The housing authority had mistakenly thought that it was obliged to re-house the applicants under the Act with secure accommodation, and promised them accordingly.
Held: That promise had created a . .
Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Regina (Reprotech (Pebsham) Ltd) v East Sussex County Council Reprotech (Pebsham) Ltd v Same HL 28-Feb-2002
The respondent company had asserted that the local authority had made a determination of the issue of whether electricity could be generated on a waste treatment site without further planning permission. The council said that without a formal . .
Cited – Henry Boot Homes Limited v Bassetlaw District Council CA 28-Nov-2002
The claimant asserted that the behaviour of the local authority gave rise to a legitimate expectation such as to allow them to commence works in breach of a planning condition.
Held: The circumstances under which a claimant might rely upon a . .
See also – Rowland v Environment Agency CA 22-Jan-2004
. .

Cited by:
See also – Rowland v Environment Agency CA 22-Jan-2004
. .
Cited – Jones, Regina (on the Application Of) v The Environment Agency Admn 13-Jul-2005
The Environment Agency sought to persuade the claimants that they must pay for licences for their moorings for craft on the Thames. The boat owners said that they had placed poles in the banks for many years, and that because the moorings were not . .
Cited – Begum and others v Returning Officer for London Borough of Tower Hamlets CA 2-May-2006
Keith J had countermanded a forthcoming local election, and made an order under section 39(1) for a new election. The claimants had sought to stand but had not been allowed to do so, the returning officer having rejected their nomination papers. The . .

Lists of cited by and citing cases may be incomplete.

Land, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.188903

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 her enjoyment of her land.
Held: The interference with TV reception by an adjoining development is not capable of being nuisance to land in law. An action in private nuisance will only lie at the suit of a person who has a right to the land affected. When assessing damages for nuisance, loss of amenity was an appropriate measure where no capital loss was established and loss of use was an additional head. Nuisance is a tort directed at protection of interests in land only.
Lord Hoffmann said: ‘The general principle is that at common law anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbour, that is his misfortune. The owner’s right to build can be restrained only by covenant or the acquisition (by grant or prescription) of an easement of light or air for the benefit of windows or apertures on adjoining land . . In the absence of agreement, therefore, the English common law allows the rights of a landlord to build as he pleases to be restricted only in carefully limited cases and then only after the period of prescription has elapsed’. And ‘In the case of nuisances ‘productive of sensible personal discomfort’ the action is not for causing discomfort to the person, but as in the case of the first category, for causing injury to the land. True it is that the land has not suffered ‘sensible’ injury, but its utility has been diminished by the existence of the nuisance. It is for the unlawful threat to the utility of his land that the possessor and occupier is entitled to an injunction and it is for the diminution in such utility that he is entitled to compensation.’
Lord Goff said: ‘As a general rule, a man is entitled to build on his own land, though nowadays this right is inevitably subject to our system of planning controls. Moreover, as a general rule, a man’s right to build on his land is not restricted by the fact that the presence of the building may of itself interfere with his neighbour’s enjoyment of his land . . [H]is neighbour generally cannot complain of the presence of the building, though this may seriously detract from the enjoyment of his land.’
Lord Lloyd of Berwick said: ‘Private nuisances are of three kinds. They are (1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land’.
Lord Hope of Craighead said that only certain kinds of rights over the use of land by others are known to law: ‘The presumption also affects the kinds of easement which the law will recognise. When the easements are negative in character – where they restrain the owners’ freedom in the occupation and use of his property – they belong to certain well known categories. As they represent an anomaly in the law because they restrict the owners’ freedom, the law takes care not to extend them beyond the categories which are well known to the law. It is one thing if what one is concerned with is a restriction which has been constituted by express grant or by agreement. Some elasticity in the recognised categories may be permitted in such a case, as the owner has agreed to restrict his own freedom. But it is another matter if what is being suggested is the acquisition of an easement by prescription. Where the easement is of a purely negative character, requiring no action to be taken by the other proprietor and effecting no change on the owner’s property which might reveal its existence, it is important to keep to the recognised categories. A very strong case would require to be made out if they were to be extended. I do not think that that has been demonstrated in the present case.’

Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Hoffmann, Lord Cooke of Thorndon, Lord Hope of Craighead
Gazette 14-May-1997, Times 25-Apr-1997, [1997] UKHL 14, [1997] AC 655, [1997] Fam Law 601, [1997] 2 All ER 426, [1997] 2 FLR 342, [1997] 2 WLR 684, [1997] Env LR 488, [1997] 54 Con LR 12, [1997] 84 BLR 1, [1997] CLC 1045, (1998) 30 HLR 409
Bailii
England and Wales
Citing:
Appeal from – 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 – Bridlington Relay Ltd v Yorkshire Electricity Board ChD 1965
The case concerned electrical interference with TV signals caused by the activities of the defendant Electricity Board.
Held: Such interference did not constitute a legal nuisance, because it was interference with a purely recreational . .
Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .
Cited – Bland v Moseley 1587
The court distinguished the elements of an easement of light and an easement of air. In the absence of an easement, a building may be erected so as to restrict the flow of air onto his neighbour’s land. . .
Cited – Aldred’s Case 1619
An action would lie where a pig-stye was erected so close to the plaintiff’s house as to corrupt the air in the house, and also and similarly for a lime-kiln with smoke, or where filth from a dye house runs into a fish pond. Where the plaintiff . .
Cited – Attorney-General v Doughty 1752
As to any right of prospect, a building erected so as to spoil a view cannot at common law be a nuisance for that reason.
Lord Hardwicke LC said: ‘I know no general rule of common law, which warrants that, or says, that building so as to stop . .
Cited – Chastey v Ackland CA 1895
The two properties were in a terrace backing onto an area popularly used as a urinal. The defendant raised his wall by sixteen feet causing a stagnation of the air in the yard, making the other houses less healthy. The court at first instance . .
Cited – Thompson-Schwab v Costaki CA 1956
The sight of prostitutes entering and leaving the defendant’s premises was so offensive as to be actionable in nuisance by a neighbouring owner. . .
Cited – Bank of New Zealand v Greenwood 14-Dec-1983
High Court – New Zealand. The glass roof of a verandah which deflected the sun’s rays so that a dazzling glare was thrown on to neighbouring buildings was held, prima facie, to create a nuisance. Hardie Boys J said: ‘To the extent that this is an . .
Cited – Dalton v Henry Angus and Co HL 14-Jun-1881
The court explained the doctrine of lost modern grant. Where there has been more than 20 years’ uninterrupted enjoyment of an easement, and that enjoyment has the necessary qualities to fulfil the requirements of prescription, then unless, for some . .
Cited – Sedleigh-Denfield v O’Callaghan HL 24-Jun-1940
Occupier Responsible for Nuisance in adopting it
A trespasser laid a drain along a ditch on the defendant’s land. Later the defendants came to use the drain themselves. A grate was misplaced by them so that in a heavy rainstorm, it became clogged with leaves, and water flowed over into the . .
Cited – Tate and Lyle Industries Ltd v Greater London Council HL 24-Mar-1983
The plaintiff had constructed and used two jetties, and dredged a channel down to the Thames for their use. The Council constructed two terminals nearby, the result of which was to cause a build up of silt blocking the channel.
Held: 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 . .
Cited – Foster v Warblington Urban District Council CA 1906
A nuisance was caused by the discharge of sewage by the defendant council into oyster beds. The plaintiff was an oyster merchant who had for many years been in occupation of the oyster beds which had been artificially constructed on the foreshore, . .
Cited – Newcastle-under-Lyme Corporation v Wolstanton Ltd 1947
The tort of nuisance is directed against the plaintiff’s enjoyment of his rights over land, and an action of private nuisance will usually be brought by the person in actual possession of the land affected, either as the freeholder or tenant of the . .
Cited – Malone v Laskey CA 1907
A company’s manager resided in a house as its licensee. His wife was injured when a bracket fell from a wall in the house. She claimed damages from the defendants in nuisance and negligence. The claim in nuisance alleged that the fall of the bracket . .
Cited – Paxhaven Holdings Ltd v Attorney-General 1974
(New Zealand) The court considered what interest in land was required to found an action in private nuisance: ‘In my opinion, however, the matter is clear in principle. In an action for nuisance the defence of jus tertii is excluded, and it is no . .
Mentioned – Cunard v Antifyre Ltd 1933
Talbot J defined private nuisance as an interference by owners or occupiers of property with the use or enjoyment of neighbouring property. . .
Overruled – Khorasandjian v Bush CA 16-Feb-1993
The plaintiff was an eighteen year old girl who had had a friendship with the defendant, aged 28. The friendship broke down and the plaintiff said she would have no more to do with him, but the defendant did not accept this. There were many . .
Doubted – Motherwell v Motherwell 1976
(Appellate Division of the Alberta Supreme Court) The court recognised that not only the legal owner of property could obtain an injunction, on the ground of private nuisance, to restrain persistent harassment by unwanted telephone calls to his . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – Asher v Whitlock CEC 3-Nov-1865
Possession of land is in itself a good title against anyone who cannot show a prior and therefore better right to possession. A possession which is wrongful against the true owner can found an action for trespass or nuisance against someone else. A . .
Cited – Allan v The Overseers of Liverpool 1874
The plaintiff (or joint plaintiffs) must be enjoying or asserting exclusive possession of the land to assert a claim in nuisance. . .
Cited – Rust v Victoria Graving Dock Co and London and St Katharine Dock Co 1887
Damages in nuisance are not to be increased by any subdivision of interests. . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth CA 7-Jan-1994
In 1986, the defendant, wanted a swimming pool adjoining his house. He contracted with the plaintiffs. The contract price for the pool, with certain extras, was 17,797.40 pounds including VAT. The depth of the pool was to be 6 ft 6 in at the deep . .
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 – Bone v Seale CA 1975
The plaintiffs were the owners and occupiers of two adjoining properties. They claimed damages for nuisance by smell. The judge awarded over 6,000 pounds to each of the plaintiffs. The Court of Appeal reduced the sum to 1,000 pounds.
Held: the . .
Cited – Billings (AC) and Sons Ltd v Riden HL 1957
A building contractor may assume a duty of care to a visitor, though the contractor was not viewed as the occupier, the occupier being separately liable to the injured plaintiff. However, ‘if the Plaintiff knew the danger, either because he was . .
Doubted – Metropolitan Properties v Jones 1939
The defendant had been tenant of one of the plaintiffs’ flats but had assigned his lease. The assignee disappeared and the tenant, who as original lessee remained liable for the rent, went back into possession. In response to an action for rent, he . .
Cited – St Helen’s Smelting Co v Tipping HL 1865
The defendant built a factory, from which the escaping chemical fumes damaged local trees.
Held: The defendant was liable even though the smelting was an ordinary business carried on properly, and even though the district surrounding was . .
Cited – Wilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .
Cited – Janvier v Sweeney 1919
During the First World War Mlle Janvier lived as a paid companion in a house in Mayfair and corresponded with her German lover who was interned as an enemy alien on the Isle of Man. Sweeney was a private detective who wanted secretly to obtain some . .
Cited – Bury v Pope 1587
The owner of land was held entitled to erect a house against his neighbour’s windows even though they had enjoyed light for over 30 years. ‘And lastly, the earth hath in law a great extent upwards, not only of water as hath been said, but of aire, . .
Cited – Lopez Ostra v Spain ECHR 9-Dec-1994
A waste treatment plant was built close to the applicant’s home in an urban location and the plant released fumes and smells which caused health problems to local residents.
Held: A duty exists to take reasonable and appropriate measures to . .
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 – Webb v Bird 1861
The use of prescription for the acquisition of an an easement of light is anomalous. The owner of the land over which the easement is claimed can do nothing to prevent the installation of windows in a neighbour’s house. . .
Cited – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .
Cited – Bryant v Lefever 1879
A right of uninterrupted but undefined flow of air to a chimney is not capable of becoming an easement acquired by prescription. . .
Cited – Paterson v Gas Light and Coke Co. 1896
. .
Cited – Arrondelle v United Kingdom ECHR 1982
Article 8 of the Convention is aimed, in part, at protecting the home and are construed to give protection against nuisances including aircraft noise. . .
Cited – Midwood v Manchester Corporation 1905
A plaintiff with standing to sue should be entitled to recover in nuisance for damage to chattels. . .
Cited – Moss v Christchurch Rural District Council 1925
Damage caused to a house may result in an award of the diminution of the value of the house only. . .
Cited – Regina v Tao 1977
. .
Cited – Jacobs v London County Council HL 1950
The House considered the operation of the doctrine of precedent: ‘there is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision because he has given another reason also. If it were a proper test to . .
Cited – British Celanese Ltd v A H Hunt (Capacitors) Ltd QBD 1969
Metal foil had been blown from the defendant’s factory premises on to an electricity sub-station, which in turn brought the plaintiff’s machines to a halt.
Held: The meaning Lawton J would give to the phrase ‘direct victim’ was a person whose . .
Cited – Halsey v Esso Petroleum Co Ltd 1961
A plaintiff who has standing to sue, including a member of the household of the landowner, should be entitled to recover in nuisance for damage to chattels.
Veale J started from the position of the ‘ordinary man’ in considering whether an . .
Cited – Christie v Davey 1893
A music teacher gave lessons at home and from time to time held noisy parties. He complained of nuisance when his neighbour retaliated by blowing whistles, banging trays and trying to disturb the music.
Held: The defendant’s actions were . .
Cited – Wheeler and Another v JJ Saunders Ltd and Others CA 19-Dec-1994
The existence of a planning permission did not excuse the causing of a nuisance by the erection of a pighouse. The permission was not a statutory authority, and particularly so where it was possible it had been procured by the supply of inaccurate . .
Cited – Harvie v Robertson 1903
The pursuer sought an interdict against the defender from carrying on the operation of lime-burning on his land: ‘the question whether a proprietor complaining of such injury has a title and interest to interfere does not depend exclusively upon . .
Cited – Gillingham Borough Council v Medway (Chatham) Dock Co Ltd CA 1992
Neighbours complained at the development of a new commercial port on the site of a disused naval dockyard. Heavy vehicle traffic at night had a seriously deleterious effect on the comfort of local residents.
Held: Although a planning consent . .
Cited – Newcastle-under-Lyme Corporation v Wolstanton Ltd 1947
The tort of nuisance is directed against the plaintiff’s enjoyment of his rights over land, and an action of private nuisance will usually be brought by the person in actual possession of the land affected, either as the freeholder or tenant of the . .
Cited – Hollywood Silver Fox Farm v Emmett 1936
The plaintiffs farmed silver foxes for their fur. During the breeding season, they were nervous, but the neighbour defendant farmer deliberately encouraged his son to fire guns near the pens in order to disturb the breeding and cause economic loss. . .
At first Instance – 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 by:
Cited – Jan De Nul (Uk) Limited v NV Royale Belge CA 10-Oct-2001
The contractor undertook to dredge a stretch of river. Due to its failure to investigate properly, the result was the release of substantial volumes of silt into the estuary, to the damage of other river users and frontagers. The act amounted to a . .
Cited – Dennis and Dennis v Ministry of Defence QBD 16-Apr-2003
The applicants owned a substantial property near an airbase. They complained that changes in the patterns of flying by the respondents were a nuisance and sought damages. Walcot Hall was subjected to very high noise levels from military aircraft. . .
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
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 – Regina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Corby Group v Corby Borough Council CA 8-May-2008
The claimants sought damages alleging that land owned by the defendant was so contaminated as to have caused their children to be born with deformities. The authority appealed against refusal of the court to strike out the claim in response to their . .
Cited – Watson and others v Croft Promo-Sport Ltd CA 26-Jan-2009
The claimants were neighbours of the Croft motor racing circuit. They alleged nuisance in the levels of noise emanating from the site. The defendants denied nuisance saying that the interference was deemed reasonable since they operated within the . .
Cited – Dobson and others v Thames Water Utilities Ltd and Another CA 29-Jan-2009
The claimants complained of odours and mosquitoes affecting their properties from the activities of the defendants in the conduct of their adjoining Sewage Treatment plant. The issue was as to the rights of non title holders to damages in nuisance . .
Cited – Dennis and Another v Davies (B20 (Ch)) ChD 21-Nov-2008
The claimants sought to enforce a restrictive covenant to restrain a neighbour building an extension.
Held: A building could be a source of annoyance and therefore a breach of the particular covenant. The requirement for the builder’s . .
Cited – Davies v Dennis and Others CA 22-Oct-2009
The land owner appealed against an injunction given to prevent him carrying out building works which the neighbours said would breach a restrictive covenant. The covenants negatived a building scheme.
Held: The appeal failed. Covenants of the . .
Cited – Arscott and others v Coal Authority and Another CA 13-Jul-2004
The defendant had deposited coal wastes. When the river Taff flooded, the spoil heaps diverted the floods to damage the claimants’ homes. They appealed refusal of their claims in nuisance. The judge applied the common enemy rule: ‘an owner or . .
Cited – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
Cited – Thornhill and Others v Nationwide Metal Recycling Ltd and Another CA 29-Jul-2011
The appellants challenged a decision that the defendants had ceased to be committing an actionable nuisance after erecting a sound barrier between their metal scrap yard and the claimants’ properties.
Held: The judge had correcly applied the . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Cited – OPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Cited – Network Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Land, Nuisance, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.81542

Bain v Fothergill: HL 1874

The defendants intended to sell to the plaintiffs their leasehold interests in mining royalties, but were under a covenant not to sell without the consent of the lessors. A condition of the sale provided for ‘ the usual covenant for our protection as standing between you and our lessors’. A deposit was paid, but the lessors refused consent. The plaintiffs sought return of their deposit, their costs and expenses of investigating title, and for loss of bargain.
Held: The case fell within Flureau -v- Thornhill, and damages were limited to the recovery of the deposit and expenses of investigating title. ‘It is recognised on all hands that the purchaser is not to be held entitled to recover any loss on the bargain he may have made, if in effect it should turn out that the vendor is incapable of completing his contract in consequence of his defective title.

Hatherley L
(1874) LR 7 HL 158, 43 LJ Ex 243, 31 LT 387, 39 JP 228, 23 WR 261
England and Wales
Citing:
Approved – Flureau v Thornhill 1746
A person who contracts to purchase land, but where the title is, without collusion, defective cannot claim for his loss of bargain. ‘These contracts are merely upon condition, frequently expressed, but always implied, that the vendor has good title. . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.183266

Stynes v Western Power (East Midlands) Plc: UTLC 19 Jul 2013

UTLC COMPENSATION – electricity – grant of necessary wayleave under Schedule 4 of Electricity Act 1989 – overhead line – injurious affection – whether section 44 of the Land Compensation Act 1973 applies – application of the principle of equivalence

Sir Keith Lindblom, P, AJ Trott FRICS
[2013] UKUT 214 (LC)
Bailii
Land Compensation Act 1973 44, Electricity Act 1989 Sch 4
England and Wales

Land, Utilities

Updated: 01 November 2021; Ref: scu.517586

Wilkinson and The Estate of Brian Wilkinson v Farmer: CA 22 Oct 2010

The court considered whether there was a compelling reason to allow a second application for leave to appeal against an order settling the width of a right of way.
Held: The appeal was allowed. Very limited facts could be established from the 1898 conveyance creating the right of way. It could however be shown that buildings at one point limited the maximum size of any cart to the space between them, and that maximum width should be reflected in the maximum width of the existing road and the right now. There had been suffcient evidence to support the land adjudicator’s decision to that effect, and insufficient to allow the court at first instance to set aside his decision. It was to be restored. The court expressed its regret at the cost of the proceedings.

Mummery, Aikens, Gross LJJ
[2010] EWCA Civ 1148
Bailii
England and Wales
Citing:
Cited – St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA 1973
When looking at a contract ‘one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.’
The contra preferetem rule can only come into play . .
Cited – White v Richards CA 1993
A right had been granted to ‘pass or repass on foot and with or without motor vehicles over and along the track coloured brown on the plan so far as the said right may be necessary for the use and enjoyment of the retained land.’ The county court . .
Cited – West v Sharp CA 1999
Mummery LJ set out the test to be applied when asking whether there had been a substantial interference in the exercise of an easement so as to be actionable: ‘Not every interference with an easement, such as a right of way, is actionable. There . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 November 2021; Ref: scu.425470

Bretherton v Paton: CA 1986

The parties intended to sell and buy a property. The defendant was allowed into possession pending the arrangement of a mortgage and exchange of contracts. The sale fell through and the owner sought possession. The defendant had paid outgoings and a small amount of rent and claimed a tenancy following Street v Mountford.
Held: The court refused the owner’s appeal against the finding that a tenancy had been created. There existed an enforceable contract giving exclusive possession for a rent for a periodic term. The possibility of a contract for the sale of the property was not enough to displace the found intention to create a tenancy.

[1986] 1 EGLR 172, (1986) 278 EG 615
England and Wales

Land, Landlord and Tenant

Leading Case

Updated: 01 November 2021; Ref: scu.259633

Adamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council: CA 18 Feb 2020

Appropriation was not in sufficient form

The claimants had challenged an order supporting the decision of the Council to use their allotments for a new primary school, saying that the land had be appropriated as allotment land, and that therefore the consent of the minister was needed.
Held: The appeal failed. The use of the word appropriation in the Council minutes had not had the effect of a full statutory appropriation to the sole purpose claimed, and was not accompanied by expected accounting records. While ‘it is not necessary for an appropriation to be recorded in a resolution which uses that very word. But when all the various points are taken together, particularly the contrast between what happened in the 1930s and what happened in the 1950s, I come to the reluctant conclusion that the judge’s decision cannot stand . . the minute of 9 December 1935 was not an appropriation in the sense in which that expression is used in local government law (and in particular in section 8 of the Allotments Act 1925). It follows that the consent of the Secretary of State was not needed before the council took its decision to appropriate the land for educational purposes.

Lord Justice Lewison
[2020] EWCA Civ 154
Bailii
Allotments Act 1925 8, Land Settlement (Facilities) Act 1919, Local Government Act 1972 122(1), Small Holdings and Allotments Act 1908 25, Local Government Act 1933 163
England and Wales
Citing:
Cited – Attorney-General v Hanwell Urban District Council 1900
Where a local authority acquires land for one purpose, it cannot use the land for a different purpose unless authorised to do so by statute. The property had actually been conveyed to the council but the council was restrained from using the . .
Cited – Dowty Boulton Paul Ltd v Wolverhampton Corporation (No 2) 1976
The right to take-off and land airplanes on an airfield enabled the dominant owners to step in and mow the field sufficient to create and maintain runways when the servient owners discontinued its use as an airfield. This was held not to amount to . .
Cited – Regina v Leeds City Council 1997
The Court was asked whether land had been appropriated for planning purposes.
McCullough J said: ‘I do not find the concept of ‘appropriation’ easy to grasp, since land which is ‘appropriated’ is already in the council’s ownership. More must . .
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – Malpass, Regina (on The Application of) v The County Council of Durham Admn 25-Jul-2012
The question was whether the council held land as open space, either under the Public Health Act 1875 or under the Open Spaces Act 1908. The title deeds under which the council acquired the land in 1936 did not state the purpose for which it had . .
Cited – Barkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
Cited – Snelling and Another v Burstow Parish Council CA 12-Nov-2013
Appeal by allotment holders against rejection of objection to proposed sale of allotments for development.
Held: The requirement under section 8 of the 1925 Act to obtain the Minister’s consent does not apply to all land which is in fact used . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Appeal From – Adamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council Admn 9-May-2019
The Court was asked whether the defendant local authority (the council) was obliged to obtain the consent of the minister before deciding to dispose of certain land in its area currently in use as allotments by the claimant, Mr Adamson, and others. . .
Cited – Goodman, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs Admn 30-Jul-2015
The local council had acquired land for open space purposes. It subsequently appropriated the land for industrial and employment purposes. But the land continued to be used for recreation. On an application to register the land as a town or village . .
Cited – Lancashire County Council v The Secretary of State for The Environment, Food and Rural Affairs and Another Admn 27-May-2016
Ouseley J he said that he would have arrived at a different conclusion from the Inspector as to the purpose for which the Authority had acquired the land at issue; but considered that that did not entitle him to interfere with the inspector’s . .
Cited – Lancashire County Council, Regina (on The Application of) v Secretary of State for Environment, Food and Rural Affairs and Another CA 12-Apr-2018
The court was asked: ‘Did the concept of ‘statutory incompatibility’ defeat an application for the registration of land as a town or village green under section 15 of the Commons Act 2006? ‘ At first instance, the judge had held that he could not . .
Cited – Ramsgate Town Council v Thanet District Council ChD 9-Nov-2018
The question at the heart of this matter is what is needed to constitute an effective appropriation of land from one designated use to another, and in particular from designated use as allotment land to land able to be used for other purposes. The . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
‘The principal issue in these two appeals relates to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for . .
Cited – In Re Edis’ Declaration of Trust 1972
The Artists’ Rifles took a building lease of land in 1888, on which they constructed a drill hall financed at least in part by public subscription. They acquired the freehold 10 years later. The drill hall remained in use for some 70 years, and . .
Cited – Day, Regina (on The Application of) v Shrewsbury Town Counci and Another Admn 19-Dec-2019
The court was asked whether the council held land as public open space. Its predecessor had acquired the land for that purpose in 1926, and had used it as such. During the war, part of the land had been temporarily appropriated for allotment . .
Cited – DB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .

Lists of cited by and citing cases may be incomplete.

Land, Local Government

Updated: 01 November 2021; Ref: scu.648241

Stagecoach South Western Trains Ltd v Hind and Another: TCC 11 Jun 2014

A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or preliminary observations/inspections of the tree. She was capable of performing that duty and that she complied with that duty. There was nothing that should have alerted her, or put her on notice, that the Tree was anything other than healthy, or required a closer inspection by an arboriculturalist. The claim in tort against her therefore failed.
The principles suggested by the authorities are: ‘(a) The owner of a tree owes a duty to act as a reasonable and prudent landowner (Caminer);
(b) Such a duty must not amount to an unreasonable burden (Lambourn) or force the landowner to act as the insurer of nature (Noble). But he has a duty to act where there is a danger which is apparent to him and which he can see with his own eyes (Brown);
(c) A reasonable and prudent landowner should carry out preliminary/informal inspections or observations on a regular basis (Micklewright and the first instance cases noted in paragraph 66 above);
(d) In certain circumstances, the landowner should arrange for fuller inspections by arboriculturalists (Caminer, Quinn). This will usually be because preliminary/informal inspections or observations have revealed a potential problem (Micklewright, Charlesworth and Percy), although it could also arise because of a lack of knowledge or capacity on the part of the landowner to carry out preliminary/informal inspections (Caminer). A general approach that requires a close/formal inspection only if there is some form of ‘trigger’ is also in accordance with the published guidance referred to in paragraphs 53-55 above.
(e) The resources available to the householder may have a relevance (Leakey) to the way in which the duty is discharged.’

Coulson J
[2014] EWHC 1891 (TCC)
Bailii
England and Wales
Citing:
Cited – Caminer v Northern and London Investment Trust Ltd HL 1951
An elm tree, standing on land adjoining a busy London highway, fell, injuring the plaintiffs, who were using the thoroughfare. The House considered the duty of a land owner to inspect trees on his land adjoining the highway.
Held: Lord Normand . .
Cited – Noble v Harrison CA 1926
A tree shed a limb onto a passer-by, causing personal injury. The Court of Appeal reversed the original finding in favour of the claimant because the defect could not have been discovered by inspection. A land-owner may become liable for a naturally . .
Cited – Brown v Harrison CA 1947
Somervell LJ reiterated the relevant test (formulated by the judge at first instance) in these terms: ‘If there is a danger which is apparent, not only to the expert but to the ordinary layman which the ordinary layman can see with his own eyes, if . .
Cited – Micklewright v Surrey County Council CA 28-Jul-2011
A branch overhanging the road, fell off causing a death. His PR claimed damages, but failed in the County Court. The death of an individual killed by a branch falling from a tree overhanging the highway was not attributable to the negligence of the . .
Cited – Lambourn v London Brick Co Ltd 28-Jul-1950
Finnemore J stated that an unreasonable burden must not be placed on the reasonable owner: ‘the standard to be taken should be that of an ordinary landowner and not an expert. It was neither the duty nor the practice of the ordinary prudent . .
Cited – Qinn v Scott QBD 1965
A tree fell across the highway, injuring the plaintiff.
Held: The claim succeeded. he decay of the tree (which was owned by the National Trust), was there to be seen and the tree should have been felled. Glyn-Jones J said: ‘The duty of the . .
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 – Corker v Wilson 10-Nov-2006
Mayor’s and City of London Court – the defendant was an ordinary landowner who owned a tree by a road. A heavy branch fell onto a passing car. There was a crack at the junction of the stem of the branch, and the claimant’s case was that this should . .
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 – Selwyn-Smith v Gompels 22-Dec-2009
Swindon County Court. A tree fell over from the defendant’s land onto the claimant’s garage.
Held: The claim failed. The law did not require the landowner to engage an expert ‘unless and until reasonable inspection by the standards of that . .

Cited by:
Applied – Witley Parish Council v Cavanagh CA 11-Oct-2018
The claimant bus driver was injured when a tree fell across the road onto his bus. A tree survey had not recorded any defect in the tree, but the report became out of date, and the re-examination was cursory. At the time it ell there was evidence of . .

Lists of cited by and citing cases may be incomplete.

Land, Negligence

Updated: 01 November 2021; Ref: scu.526443

Ezekiel and Another v Kohali and Another: CA 30 Jan 2009

Each side sought specific performance of a contract set out in a Heads of Agreement document, but one sought an abatement in the price, saying that the seller was unable to deliver the title promised. The seller replied that the document did not impose any obligation to make a particular title.
Held: The appeal and cross appeal failed. The purchasers went ahead based on their own judgment and despite strong advice to the contrary from their solicitors. The judge had properly considered the documents and her conclusions were not to be disturbed.

Mummery LJ, Wall LJ, Stanley Burnton LJ
[2009] EWCA Civ 35
Bailii
England and Wales
Citing:
Cited – McGrory v Alderdale Estate Co HL 1918
Lord Finlay LC discussed the evidence required in an enquiry as to the vendor’s title to be made on an order for specific performance: ‘if the contract is open, the obligation which the law would import into it to make a good title in every respect . .
Appeal from – Ezekiel and Another v Kohali and Another ChD 11-Apr-2008
. .
Cited – Hofer v Strawson ChD 31-Mar-1999
The debtor had agreed to buy a company from the petitioner, the price to be payable in instalments by means of post-dated cheques. The debtor alleged misrepresentation and stopped one of the cheques. The petitioner served a statutory demand based on . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 01 November 2021; Ref: scu.280253

Sisters of the Sacred Heart of Mary Ltd and others v Royal Borough of Kingston Upon Thames: ChD 14 Mar 2008

The defendant proposed an unmanned barrier across a private right of way. Many residents agreed, but the claimants did not. They operated schools requiring access and said that the gates would substantially interfere with their right of way. The council said that it had the required power under the 1933 Act. There had previously been a manned barrier, but the new system involving the use of codes would create difficulties for the many visitors to the school.
Held: The Act unequivocally gave powers to the Authority to install and manage gates. Any prior private rights over the roadways were subsumed in the rights given by the 1933 Act, and were not recovered by prescription or under the doctrine of lost modern grant. The proposed gate would in any event create a very substantial interference by the authority in the statutory rights of access of the claimants and of their licensees. The availability of alternative routes was no answer, and ‘a code-operated barrier is a recipe for chaos in many circumstances. ‘If an attended gate was installed, the council was entitled to charge the residents accordingly under the Act.

John L Powell QC
[2008] EWHC 563 (Ch), Times 18-Apr-2008
Bailii
Maldens and Coombe Urban District Council Act 1933 11(1), Prescription Act 1832 2
England and Wales

Land, Local Government

Updated: 01 November 2021; Ref: scu.268728

Elliston v Reacher: CA 2 Jan 1908

Lord Cozens Hardy MR said: ‘It is laid down in Co. Litt. 230b, that a man who takes the benefit of a deed, is bound by a condition contained in it, though he does not execute it.’
Farwell J referred to Osborne v Bradley, and said: ‘With reference to the power of the vendor to vary the conditions, I pointed out in Osborne v. Bradley that it was one element to consider and assist the Court in arriving at the conclusion of fact whether there was or was not a scheme, and nothing more than that. I never intended to suggest that it was fatal to the existence of a scheme.’

Lord Cozens Hardy MR, Farwell J
[1908] 2 Ch 665
England and Wales
Citing:
Appeal from (approved) – Elliston v Reacher ChD 1908
The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same . .
Cited – Osborne v Bradley ChD 1903
The plaintiff had sold land to the purchaser, subject to covenants restricting the development on the land to private dwellings and prohibiting manufacture, trade or business on the land. The purchaser built two houses and subsequently sold the land . .

Cited by:
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 01 November 2021; Ref: scu.219175

Ansari v Ansari and others: CA 19 Dec 2008

The wife had registered her right of occupation under the 1996 Act, but the husband sold the house subject to the registered right, and the purchaser had charged the property. She now sought an order restricting the use of the proceeds of sale, and challenged the new mortgage.
Held: The wife’s appeal failed. The subsection should not be used to set aside a subsequent disposition where the party was not party to any conspiracy or had notice of any intention to defeat the wife’s rights: ‘The discretion conferred by sub-section (3), even if it can be used to set aside dispositions subsequent to the first disposition in a case where the parties acted in bad faith, should certainly not be used to set aside a subsequent disposition for valuable consideration to a person who acted in relation to it in good faith and without such notice.’

Longmore LJ, Wilson LJ, Lawrence Collins LJ
[2008] EWCA Civ 1456
Bailii, Times
Family Law Act 1996 30
England and Wales
Citing:
Not applied – Green v Green 1981
Section section 37(3) of the 1983 Act was not wide enough in its terms to enable a judge to set aside a disposition granted by someone other than the husband or wife. That was because sub-section 3 only enabled a judge to give directions . .

Lists of cited by and citing cases may be incomplete.

Family, Land

Updated: 31 October 2021; Ref: scu.278972

Davill v Pull and Another: CA 10 Dec 2009

The court was asked to interpret grants of rights of way over land. The claimant intended to increase the use of the right. The servient owners objected. The claimant appealed against refusal of relief.
Held: The appeal succeeded. There was nothing in the context and background to justify the inference that the original parties intended that the easement over the track could only ever be used in connection with the use of the dominant plot as garden land.
Rimer LJ said: ‘The question is . . whether the phrase ‘for all reasonable and usual purposes’, interpreted against the background in which the conveyances were executed, imports the limitation on the grants that the judge derived from them. In my judgment, they do not. Moreover, and with respect, I regard the judge’s interpretation of that phrase as an unnatural one. It is, it seems to me, obvious that no draftsman intent upon limiting the use of the track to a use for the purposes of the garden (or like) use of the plot would have limited its use to ‘all reasonable and usual purposes’.’
Rimer LJ set out the correct approach to the interpretation of an written grant of a right of way: ‘The task of interpretation with which the court is faced requires the intention of the parties to the original conveyances to be ascertained from the words of the grants read in the light of the background circumstances which would have been known to the parties. As I observed in Young v Brooks [2008] EWCA Civ 816, [2008] 3 EGLR 27 at [12] Lord Hoffmann’s five principles of interpretation in the Investors Compensation Scheme case, supra, apply as much to the interpretation of an express grant of an easement as to that of a contract. The context, as the judge rightly said, is all; and [counsel] was correct to emphasise the background scheme against which the grants came to be made.’

Sir Mark Potter P, Rimer LJ
[2009] EWCA Civ 1309, [2010] 1 PandCR 23
Bailii
England and Wales
Citing:
Cited – Finch v Great Western Railway Company 1879
The extent of the right of way acquired by prescription must be measured by the extent of user during the period of time relied upon. . .
Cited – Keefe v Amor CA 1965
The Court declined to limit the extent of a right of way 20 feet wide by reference to the bottleneck at its entrance from the road of 4 feet 6 inches, consisting of a pair of gate pillars and a gate of that width. The grant was over the whole 20 . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – McKay Securities Ltd v Surrey County Council ChD 9-Dec-1998
Where a grant of a right of way is ‘for all purposes’ its use will not be limited by the purposes for which the dominant land was used at the date of the grant. The very general expression was to be given its ordinary unvarnished meaning, as a . .
Cited – Todrick v Western National Omnibus Co Ltd ChD 1934
The grant of a right of way was in unrestricted language, but the roadway in question was very narrow and was contained by a retaining wall to prevent it slipping down the valley. It was argued that ‘Here is a reservation of a right of way in . .
Cited – Young and Another v Brooks and Another CA 22-May-2008
Appeal from order as to extent of right of way. Lord Hoffmann’s five principles of interpretation in the Investors Compensation Scheme case apply as much to the interpretation of an express grant of an easement as to that of a contract. . .
Cited – Jelbert v Davies CA 1968
Lord Denning MR explained that even a right granted in wide terms like ‘at all times and for all purposes’ is not a sole right, if it is used in common with others, and it does not authorise unlimited use. . .
Cited – Partridge and others v Lawrence and others CA 8-Jul-2003
The appellants challenged a finding as to the width of a right of way over their land as exercised by the respondents.
Held: The appeal was allowed in part. Peter Gibson LJ said: ‘The claimants now have the security that this court is . .

Cited by:
Cited – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD 13-May-2010
The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 October 2021; Ref: scu.383820

Yeoman’s Row Management Ltd and Another v Cobbe: HL 30 Jul 2008

The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding that Mrs Lisle-Mainwaring’s behaviour in repudiating, and seeking an improvement on, the core financial terms of the second agreement was unconscionable and sufficient to justify the creation of a ‘proprietary estoppel equity’. . But to leap from there to a conclusion that a proprietary estoppel case was made out was not justified.
Even without attempting to vary the terms of the agreement, the company could not have been obliged to go ahead: ‘Proprietary estoppel requires, in my opinion, clarity as to what it is that the object of the estoppel is to be estopped from denying, or asserting, and clarity as to the interest in the property in question that that denial, or assertion, would otherwise defeat. If these requirements are not recognised, proprietary estoppel will lose contact with its roots and risk becoming unprincipled and therefore unpredictable, if it has not already become so. ‘ The claimant was entitled to a quantum meruit payment for his services, and te value of that should represent the extent of the unjust enrichment obtained by the plaintiff.

Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance
[2008] UKHL 55, [2008] 35 EG 142, [2008] 31 EG 88, [2008] WTLR 1461, [2008] 1 WLR 1752
Bailii, Times, HL
Law of Property (Miscellaneous Provisions) Act 19892
England and Wales
Citing:
Appeal from – Yeoman’s Row Management Ltd and Another v Cobbe CA 31-Jul-2006
The defendants orally agreed to sell the claimant a block of flats for andpound;12 million if he first obtained planning permission for it on terms as to a sharing of subsequent development profits. The claimant spent over andpound;100,000 and . .
At First Instance – Yeoman’s Row Management Ltd v London Rent Assessment Committee Chairman QBD 25-Feb-2005
The parties agreed in principle that there would be an application for planning permission, and that if granted the land would be bought and the profits shared. Considerable work was undertaken and permission achieved, but the seller then sought to . .
Cited – Laird v Birkenhead Railway Co 22-Nov-1859
The plaintiff applied to the defendant railway company for permission to construct and use a private branch line connecting with the railway company’s main line. Agreement was reached for the plaintiff to do so ‘on reasonable terms, which were to be . .
Cited – Attorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd PC 1987
An agreement in principle was marked ‘subject to contract’. The Government would acquire some flats owned the plaintiff Group of companies in return for the Government granting, inter alia, a lease to the Group of some Crown lands. The Government . .
Cited – Muschinski v Dodds 1985
(High Court of Australia) The idea of conscience is too vague a notion to found the principles of equity, it would open the door to ‘idiosyncratic notions of fairness and justice’ and ‘That property was acquired, in pursuance of the consensual . .
Cited – Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .
Cited – Ramsden v Dyson HL 1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
Cited – Plimmer v Mayor, Councillors and Citizens of the City of Wellington PC 1884
(New Zealand) Mr Plimmer had occupied land under a revocable licence from the Corporation’s predecessor-in-title and at their request had made extensive improvements to it. He sought compensation when the land was to be vested in the defendant. The . .
Cited – Inwards v Baker CA 13-Jan-1965
An indulgent father had encouraged his son to build a bungalow on his, the father’s, land. The son had done so in the expectation, encouraged by the father, that he would be permitted to remain in occupation.
Held: The court formulated the . .
Cited – Holiday Inns Inc v Broadhead 1974
The parties negotiated for a lease, but never signed a contract. The plaintiff expended considerable sums to try to get planning, and once acquired it sought to buy the land, and claimed that Mr Broadhead had taken an unconscionable advantage, . .
Cited – Crabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .
Cited – British Steel Corporation v Cleveland Bridge and Engineering Co Ltd 1983
An ‘if contract’ is where one party makes an offer capable of acceptance on the basis that ‘if you do this for us, we will do that for you’. Often used in the construction industry.
Goff J said: ‘the question whether . . any contract has come . .
Cited – Pallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .
Cited – Time Products Ltd v Combined English Stores 2-Dec-1974
The plaintiff and the defendant were each interested in buying a property and had agreed that one of them would make an offer, the other refraining from doing so, and that if the offer were to be accepted the purchaser would deal with the property . .
Cited – Walton Stores (Interstate) Limited v Maher 1988
(High Court of Australia) It would be unconscionable for a party to stand by in silence when it must have known that the other party was proceeding on an assumption that they had a binding agreement. . .
Cited – Pridean Limited v Forest Taverns Limited; Hipwell and Marshall CA 28-Nov-1996
The claimant owned a public house. It set out with the defendant to to acquire the premises or to take a lease of them. The defendant went into occupation, and carried out works. Negotiations continued, but broke down over the form of protection to . .
Cited – London and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
Cited – Banner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd and Another CA 16-Nov-2005
The defendant had brought in the claimant in order to assist in satisfying its own obligations under a lease. The joint venture was not recorded in a formal agreement. The appellant asserted that a constructive trust had been created. The judge had . .
Cited – Dann v Spurrier 1802
The tenant had carried out improvements to the property. It was uncertain whether the length of the term (7, 14 or 21 years) was at the option of the lessee alone.
Held: The case was decided on construction of the lease. Lord Eldon made it . .
Cited – Rochdale Canal Company v King 1853
Sir John Romilly MR said: ‘The principle on which the Defendants rely is one often recognised by this Court, namely, that if one man stand by and encourage another, though but passively, to lay out money, under an erroneous opinion of title, or . .
Cited – Dillwyn v Llewelyn ChD 12-Jul-1862
The father thought he had given his younger son land in Wales, in signing a memorandum and presenting it to him ‘for the purpose of furnishing himself with a dwelling-house’. The memorandum was not by deed. The son built his home on the land. When . .
Cited – Regina (Reprotech (Pebsham) Ltd) v East Sussex County Council Reprotech (Pebsham) Ltd v Same HL 28-Feb-2002
The respondent company had asserted that the local authority had made a determination of the issue of whether electricity could be generated on a waste treatment site without further planning permission. The council said that without a formal . .
Cited – Willmott v Barber ChD 19-Jun-1880
In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a . .
Cited – Pascoe v Turner CA 1-Dec-1978
The defendant had been assured by the plaintiff that ‘the house is yours and everything in it.’ In reliance on that assurance she carried out improvements to the house. Although the improvements were modest, their cost represented a large part of . .
Cited – Grundy v Ottey CA 31-Jul-2003
The deceased left his estate within a discretionary trust. The claimant sought to assert an interest in it, claiming an estoppel and, under the 1975 Act, as his partner. They had lived together for four years. She had been dependent upon him . .
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 – Windeler v Whitehall 1990
The plaintiff and defendant lived together but were not married. The plaintiff spent some of a legacy she received on living expenses and supervised minor building works to the family home. She claimed an interest in it.
Held: Millett J said: . .
Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Gillett v Holt and Another ChD 18-Jun-1998
To establish a proprietary estoppel against the testator’s promise to leave items in his will, some overt act over and above a promise, and reliance upon that promise, must be shown in order to displace the testator’s right to change his will. . .
Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – JT Developments v Quinn and Another CA 1990
The plaintiff told the defendant it was willing to grant a lease on the same terms as those contained in a new tenancy that the plaintiff had recently granted to the tenant of a nearby shop, also owned by the plaintiff. The defendant carried out . .
Cited – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .

Cited by:
Cited – Brightlingsea Haven Ltd and Another v Morris and others QBD 30-Oct-2008
The caravan park operated under planning consents requiring the caravans to be occupied only during certain months. The defendants had bought their mobile homes from the claimants to occupy full time, and said that the claimants knew of this. The . .
Cited – St Pancras and Humanist Housing Association Ltd v Leonard CA 17-Dec-2008
The claimant sought possession of a garage. The defendant claimed adverse possession.
Held: The defendant’s appeal against an order for possession failed. The defendant had attended a meeting where his behaviour had allowed other parties to . .
Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Cited – Clarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Cited – Clarke and Another v Corless and Another CA 31-Mar-2010
The claimants appealed against refusal of a declaration that a neighbouring access road and land was held on a constructive trust. They said that an agreement bewteeen the parties should have been effective to impose a trust on the defendants. The . .
Cited – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Cited – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .

Lists of cited by and citing cases may be incomplete.

Contract, Land, Estoppel

Leading Case

Updated: 31 October 2021; Ref: scu.271281

William Sindall Plc v Cambridgeshire County Council: CA 21 May 1993

Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: Under the National Conditions of Sale, it is the purchaser who takes the risk of there being easements unknown to the seller. A seller was not liable for damages for misrepresentation if he had taken reasonable steps to make known to the purchaser what he himself knew. Clause 14 of the Conditions is not an exclusion clause, but rather qualifies the vendor’s obligations. It did not therefore fall to be tested for reasonableness. In replies to preliminary enquiries, the phrase ‘not so far as the vendor is aware’ represents that the solicitor and client have each made appropriate enquiries to support the statement, and: ‘knowledge may go beyond what is in somebody’s head, that it requires a solicitor to read his file and to read it properly and to make . . reasonable and prudent investigation of the grounds upon which the belief is based . .’

Lord Justice Russell Lord Justice Evans and Lord Justice Hoffmann
Ind Summary 28-Jun-1993, Times 08-Jun-1993, [1993] NPC 82 CA, [1994] 1 WLR 1016, [1994] 3 All ER 932, [1993] EWCA Civ 14
Bailii
Misrepresentation Act 1967 2, Law of Property Act 1925 76
England and Wales
Citing:
Cited – Wheeldon v Burrows CA 17-Jun-1879
Quasi-Easements granted on sale of part of Estate
S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the . .
Cited – Heywood v Mallalieu 1883
A house was sold at auction by a mortgagee ‘subject to any easements.’ It turned out to be subject to an easement in favour of a neighbour entitling her to come and wash her clothes in the kitchen. The vendor’s solicitor had been told that the . .
Cited – Littledale v Liverpool College CA 1900
The mere storage of items in a property was insufficient to demonstrate the necessary intention to dispossess the rightful owner. It was a mere exercise of the rights under an easement. Enclosure of land is not necessarily decisive. Lord Lindley MR . .
Cited – Brown v Raphael 1958
This was a sale of an absolute reversion in a trust fund. The particulars stated that: ‘Estate duty will be payable on the death of the annuitant who is believed to have no aggregable estate’ and the name of the solicitors who prepared the . .
Cited – Cremdean Properties Ltd v Nash CA 1977
The defendant had relied on a non-reliance clause in the special conditions of a tender: ‘Messrs. Lalonde Bros and Parham for themselves, for the vendors or landlord whose agents they are give notice that (a) These particulars are prepared for the . .
Cited – Leeds Industrial Co-operative Society Ltd v Slack HL 1924
The plaintiff complained of a threatened interference with ancient lights.
Held: Damages may be awarded in lieu of an injunction even where the injunction sought is a quia timet injunction, but that power imports a further power to give an . .
Cited – Associated Japanese Bank (International) Ltd v Credit du Nord SA 1988
A contract of guarantee was made, but based upon a term of fundamental importance which was mistaken as to the existence of certain machines.
Held: The court must first look to the nature of the purported agreement. Steyn J said: ‘Logically, . .
Cited – Hill v Harris CA 1965
A lessor or vendor does not impliedly warrant that the premises are fit for any particular purpose. It is the contract which allocates the risk of the premises being unfit for such a purpose to the lessee. The lessee has duties to investigate the . .
Cited – Walters v Babergh District Council 1983
An action was brought for for negligence and/or breach of statutory duty under the 1936 Act. The plaintiff alleged that Melford Rural District Council (‘Melford’: the Defendant Council’s predecessor) had failed to inspect with reasonable care the . .
Cited – Grist v Bailey 1966
The parties believed that the property to be sold was occupied by a ‘protected tenant’. This was not so since the property could have been sold with vacant possession. It was argued that the contract could be set aside for common mistake.
Cited – Johnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Cited – Laurence v Lexcourt Holdings Ltd ChD 1978
The purchasers sought rescission of a 15 year lease of business premises. Unknown to either party, the planning permission restricted their use as offices to a period of no more than two years.
Held: There had been a misrepresentation by the . .
Cited – Bell v Lever Brothers Ltd HL 15-Dec-1931
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying andpound;30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could . .
Cited – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
Cited – Kemp Properties (UK) Ltd v Dentsply Research and Development Corporation 1991
The measure of damages is the same as for fraudulent misrepresentation i.e. all loss caused by the plaintiff having been induced to enter into the contract. . .
Cited – Jackson v Union Marine Insurance Co Ltd CCP 1874
The plaintiff ship owner, contracted under a charterparty to proceed with all possible dispatch to Newport. He insured the cargo. The ship ran aground before the cargo could be collected, and was delayed. The charterers threw up the charterparty and . .
Cited – Solle v Butcher CA 1949
Fundamental Mistake Needed to Allow Rescission
The court set out the circumstances in which the equitable remedy of rescission of a contract is available for mutual mistake. The mistake has to be as to some fundamental element of the contract. What is ‘fundamental’ is a wider category of event . .

Cited by:
Cited – MCI Worldcom International Inc v Primus Telecommunications Inc ComC 25-Sep-2003
The claimant sought judgment, and the defendant leave to amend its defence. The question was whether the proposed defence had any reasonable prospect of success.
Held: The misrepresentation alleged was made by the claimant’s in-house . .
Cited – Sykes and Another v Taylor-Rose and Another CA 27-Feb-2004
The appellants purchased a property from the respondents. The house had been the site of a partiularly horrendous murder in 1980, but the respondents did not disclose the fact.
Held: The doctrine of caveat emptor still had application. As . .
Cited – First National Commercial Bank Plc v Loxleys (a Firm) CA 6-Nov-1996
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
Cited – Graves v Graves and others CA 3-Jul-2007
The parties had divorced and settled financial provision, but the former wife and her children came to need a house and one of the claimant’s properties became vacant, and she was allowed to occupy it as a tenant, with the majority of the rent being . .
Cited – Morgan and Another v Pooley and Another QBD 7-Oct-2010
morgan_pooleyQBD10
The claimants had bought a property from the defendants and now sought damages in misrepresentation saying that the defendants had failed to disclose a planning application for an adjacent farm as regards a track bordering the property.
Held: . .

Lists of cited by and citing cases may be incomplete.

Land, Professional Negligence, Contract, Legal Professions

Leading Case

Updated: 31 October 2021; Ref: scu.90518

McCausland and Another v Duncan Lawrie Ltd and Another: CA 18 Jun 1996

The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. Time was not initially of the essence of the contract.
Held: The variation was invalid, but the original contract, as unvaried, remained in force. A variation of a contract for the sale of land under the new Act must itself comply with the formalities of the Act if it is to be applied. Section 2 is an entirely new provision which marks a radical change in the law.
Morritt LJ said that estoppel may be available. The contractual date for completion was a material term, if only because it specified the time from which one or other party was entitled to serve a notice to complete and make time of the essence: ‘the choice lies between permitting a variation, however fundamental, to be made without any formality at all and requiring it to satisfy Section 2. In my view it is evident that Parliament intended the latter. There would be little point in requiring that the original contract comply with Section 2 if it might be varied wholly informally. Further the respect in which the Act differs from the Bill proposed by the Law Commission indicates that Parliament intended more, rather than less, formality than that recommended by the Law Commission.’ and ‘The reasons for the recommendation were to avoid the uncertainties arising from the doctrine of part performance, to ensure mutuality between both parties to the contract and to avoid the continuing uncertainty surrounding the operation of Section 40 Law of Property Act 1925 notwithstanding its long history’
Neill LJ said: ‘It seems to me to be clear that Parliament intended to introduce new and strict requirements as to the formalities to be observed for the creation of a valid disposition of an interest in land. Under Section 2 all the terms of the contract have to be incorporated in the signed document. Counsel for the plaintiffs was correct when he submitted that the formalities prescribed by Section 2 have to be applied to the contract as varied. ‘

Neill LJ, Morritt LJ
Times 18-Jun-1996, Gazette 10-Jul-1996, [1996] 4 All ER 995, [1997] 1 WLR 38
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
Applied – Morris v Baron and Co HL 1918
The House drew a distinction between a variation of a contract required to be evidenced in writing, and the rescission (or discharge) of such a contract. The former was itself required to be evidenced in writing; the latter was not.
Lord . .
Cited – Williams v Moss Empires Ltd ChD 1915
The court considered what was necessary to achieve a variation of a contract. Shearman J: ‘The principle . . is that where there is alleged to have been a variation of a written contract by a new parol contract, which incorporates some of the terms . .

Cited by:
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Bankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Cited – Jelson Ltd v Derby City Council ChD 30-Jun-1999
Agreements under the planning acts remained subject to the general law requiring formalities for contracts for the sale of land. Where two landowners had an understanding as to the expectations for the division of responsibility for provision of . .
Cited – Nweze and Another v Nwoko CA 29-Mar-2004
The parties had settled their dispute in an oral compromise agreement under which it was agreed that land would be sold at the best price reasonably obtainable. One now argued this was unenforceable as an agreement for the disposal of land requiring . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – Courtney v Corp Ltd CA 1-Mar-2006
The claimants sought to enforce an offer of finance to support a land purchase. The defendants argued that the offer failed to meet the characteristics required under section 2 of the 1989 Act.
Held: The judge had been correct to say that the . .
Cited – Eyestorm Ltd v Hoptonacre Homes Ltd CA 19-Dec-2007
The appellant had agreed to take leases on a development of the defendant, hoping to sell the apartments on at a profit. After difficulties, the appellant refused to complete, and the defendant forfeited the deposits.
Held: Eyestorm’s appeal . .
Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Cited – Rudra v Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited CA 26-Feb-1998
The parties disputed whether a contract had been entered into for the sale of land, and whether new evidence could be entered on an appeal against a strike out. The estate agents had signed a contract as agents for the mortgagee in possession, but . .
Cited – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD 13-May-2010
The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .
Cited – H L Estates Limited, Wynford Newman Dore v Parker-Lake Homes Limited ChD 20-Mar-2003
. .
Cited – Graham and others v Mayrick ChD 23-Mar-2006
The claimants sought specific performance of a compromise agreement with the defendant after a dispute over a strip of land. The defendant appealed a finding that the claimants had shown satisfactory title.
Held: ‘It has long been established . .
Cited – Urban Manor Limited v Sadiq CA 20-Feb-1997
Appeal by prospective purchaser of property from order that contract rescinded, and deposit forfeited. . .
Cited – Yaxley v Gotts and Gotts CA 20-Mar-1998
The defendants were granted leave to appeal out of time. . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Leading Case

Updated: 31 October 2021; Ref: scu.83509

Star Energy Weald Basin Ltd and Another v Bocardo Sa: SC 28 Jul 2010

The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now appealed against an order reducing its damages to andpound;1,000.
Held: The appeal by Bocardo failed (Lord Hope DPSC and Lord Clarke JSC dissenting). The statute did not displace the owners rights by implication: ‘ In the context of a statute which is concerned with the right to search for and bore for and extract petroleum existing in its natural condition in strata below ground, the words ‘enter on’ in that subsection are apt to apply to underground workings as well as workings on the surface itself. The words ‘interfere with’ are not restricted, as was suggested, to interfering with the owner’s use and enjoyment of the land for the time being. The owner of the subsurface is entitled to say that his land is being interfered with when it is bored into by someone else. His right to object is inherent in his right of ownership of the land.’ The drilling was a trespass.
Lord Brown said: ‘the compensation – and the only compensation – contemplated by Parliament in enacting the 1934 Act was for ‘any loss of amenity value’ consequent on interference ‘with actual rights that exist’, in particular ‘the surface rights’. For any such loss ‘full compensation in the sense of the full market value’ was to be paid, plus 10% because ‘the owner may not necessarily desire to realise that asset.’ Compensation was to be for interference with ‘any valuable right’. Landowners, however, had no right at all in the oil or ‘in the chances of finding oil under the soil.’ It seems clear that Parliament in 1934 was not contemplating the boring of deep wells diagonally beneath land but that, had they done so, they would not have regarded that as an interference with any actual existing right or as involving any loss of amenity value or at any rate not such an interference as required more than essentially nominal compensation.’ and ‘ by this Act, Parliament in terms (a) vested the property in all petroleum in the Crown, (b) gave the Crown ‘the exclusive right of searching and boring for and getting such petroleum’ (a right that could be licensed to others, as here to Star) and (c) enabled any licencee compulsorily to acquire any necessary ancillary right (as here to access the petroleum through Bocardo’s land). The correct analysis seems to me to be this: that by these provisions Parliament was at one and the same time extinguishing whatever pre-existing key value Bocardo’s land might be thought to have had in the open market and creating a new world in which only the Crown and its licencees had any interest in accessing the oilfield and in which they had been empowered to do so (to turn the key if one wants to persist in the metaphor) compulsorily and thus on terms subject to the Pointe Gourde approach to compensation.’

Lord Hope, Deputy President, Lord Walker, Lord Brown, Lord Collins, Lord Clarke
[2010] UKSC 35, [2010] WLR (D) 204, [2010] NPC 88, [2010] 3 WLR 654, [2011] AC 380, [2010] 31 EG 63, [2010] 3 All ER 975
Bailii, SC, WLRD, Bailii Summary, SC Summary
Petroleum (Production) Act 1934, Mines (Working Facilities and Support) Act 1966 3(2)(d) 8(2), Pipe-lines Act 1962
England and Wales
Citing:
At First Instance – Bocardo Sa v Star Energy UK Onshore Ltd and Another ChD 24-Jul-2008
The defendant had obtained a licence under the Act to extract oil from beneath its land. To do so, it had to drill at a deep level under the claimant’s land. It did so without the claimant’s permission. The claimant sought damages in trespass.
Appeal from – Star Energy UK Onshore Ltd and Another v Bocardo Sa CA 15-Jun-2009
The appellant had taken out a licence to drill for oil on its land. To maximise its return it drilled at a deep level out under the claimant’s land. It now appealed against a finding that this was a trespass, and that it should pay damages on a . .
Applied – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Cited – Henry Rowbotham, And Others v William Wilson HL 19-Jun-1860
Prima facie, the owner of land is entitled to the surface itself, and all below it, ex jure naturae; those who seek to derogate from that right must do so by virtue of some grant or conveyance. The rights of the grantee of the minerals depend on the . .
Cited – Daniel Rowbotham v William Wilson 30-May-1856
Action for injuririg the plainitiff’s reversion, by removing the minerals without leaving support to the surface, on which were houses more than twenty years old; whereby the houses were injured. On a special case it appeared that, ninety years . .
Cited – Bowser v Maclean 21-Nov-1860
The lord may drive carriages along a tramway under copyholds of the manor, for the purpose of working mines within the manor, but not of working mines beyond its limits, and a bill will lie for an injunction at the suit of a copyholder to restrain . .
Cited – Corbett v Hill 1870
The court considered a conveyance on sale which created an underground flying freehold. Sir William James VC said that the owner of land owns ‘everything up to the sky’. . .
Cited – National Carriers Ltd v Panalpina (Northern) Ltd HL 11-Dec-1980
No Frustration of Lease through loss of access
The tenant’s access to the premises was closed by the local authority because it passed by a derelict and dangerous building. The tenant argued that its tenancy was frustrated.
Held: The lease was not frustrated. The lease had a term of ten . .
Cited – Bury v Pope 1587
The owner of land was held entitled to erect a house against his neighbour’s windows even though they had enjoyed light for over 30 years. ‘And lastly, the earth hath in law a great extent upwards, not only of water as hath been said, but of aire, . .
Cited – Pickering v Rudd KBD 20-Jun-1815
Trespass into Air Space
The plaintiff had erected a board which extended over into his neighbour’s garden. The neighbour cut that down and a tree grown against his wall.
Held: Lord Ellenborough said: ‘I do not think it is a trespass to interfere with the column of . .
Cited – Commissioner for Railways v Valuer-General PC 1974
(New South Wales – Court of Appeal) The parties disputed the value of a property in the centre of Sydney beneath which there had been extensive excavations to a depth of 40 feet or more. The question was how the property was to be valued for rating . .
Cited – Ellis v Loftus Iron Co 1874
The pasturing of cattle must be one of the most ordinary uses of land, and strict liability for damage done by cattle enclosed on one man’s land if they escape thence into the land of another, is one of the most ancient propositions of our law. It . .
Cited – Pountney v Clayton CA 1883
Bowen LJ was asked as to rights of support to land. He said: ‘Prima facie the owner of the land has everything under the sky down to the centre of the earth.’ . .
Cited – Elwes v Brigg Gas Co 1886
. .
Cited – Mitchell v Mosley CA 1914
Where a plot of land sold has the boundaries identified, prima facie, the conveyance will also include all the land within and below the boundaries.
Lord Cozens-Hardy MR said: ‘In my opinion we should be going contrary to perfectly well . .
Cited – Bernstein of Leigh (Baron) v Skyview and General Ltd (Summary) QBD 9-Feb-1977
The plaintiff complained that the defendant had flown over his and neighbouring properties and taken aerial photographs, and said that this was a gross invasion of his privacy, and that the defendant had invaded his airspace to do so. The plaintiff . .
Cited – Kelson v Imperial Tobacco Company 1957
The defendant erected a sign which extended some 8ft into the plaintiff’s property.
Held: The plaintiff was entitled to a mandatory injunction requiring the defendant to remove the sign. The intrusion was a trespass. . .
Cited – Edwards v Minister of Transport 1964
The landowner claimed for injurious affection of the remainder of his land after part was acquired by compulsory purchase.
Held: The claim for injurious affection was confined to the effects of works and uses on the land taken. . .
Cited – Stebbing v Metropolitan Board of Works 1870
In compensation for compulsory purchase (in this case, of graveyards), ‘value’ means value to the owner, not value to the purchaser. The graveyards were therefore of little or no value to the rector.
Cockburn CJ said: ‘When Parliament gives . .
Cited – Raja Vyricherla Narayana Gajapathiraju v Revenue Divisional Officer, Vizagapatam PC 23-Feb-1939
Land adjoining a harbour at Vizagapatam which at that time was malarial was to be valued for compulsory purchase. The land contained a spring of clean water. The only potential purchaser of the special adaptability of the land as a water supply was . .
Cited – Logan v Scottish Water OHCS 1-Nov-2005
. .
Cited – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – East End Dwelling Co Ltd v Finsbury Borough Council HL 1952
The house was asked whether a hypothetically rebuilt block of flats would have been subject to the Rent Restriction Acts.
Held: Lord Asquith said: ‘If you are bidden to treat an imaginary state of affairs as real, you must surely, unless . .
Cited – Powell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘In the absence of evidence to the . .
Cited – Porter and Another v Secretary of State for Transport CA 3-Jun-1996
No issue estoppel on land value arose from a previous Secretary’s finding on Lands Tribunal. . .
Cited – Chapman Lowry and Puttick v Chichester District Council LT 1984
. .
Cited – Batchelor v Kent County Council CA 1989
The Council had compulsorily acquired land for highway improvement. It was within an area scheduled for residential development. Outline permission for development of neighbouring land had been granted but the development could not proceed until the . .
Cited – Batchelor v Kent County Council LT 1-Mar-1987
The tribunal was asked to determine compensation to be paid on the acquisition of two plots of land. The land-owner claimed andpound;9,000,000 and the council offered andpound;5,490. The land-owner claimed the value as ransom as necessary access to . .
Cited – Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd and Others PC 26-Nov-2009
(From the Court of Appeal of Jersey) Lord Walker reviewed the principles in awarding damages under Lord Cairns Act, setting out five general principles established by the authorities. They included: ‘1. Damages (often termed ‘user damage’) are . .
Cited – Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd and Others PC 26-Nov-2009
(From the Court of Appeal of Jersey) Lord Walker reviewed the principles in awarding damages under Lord Cairns Act, setting out five general principles established by the authorities. They included: ‘1. Damages (often termed ‘user damage’) are . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Cited – Whitwham v Westminster Brymbo Coal and Coke Co CA 24-Jun-1896
Common law damages for the misuse of property involved an award of a sum equivalent to the price or hire that a reasonable person would pay for such use, even if the owner would not himself actually have been using the property. This case involved . .
Cited – South Eastern Railway Co v London County Council 1915
Compulsory purchase – compensation assessment – ‘Increase in value consequent on the execution of the undertaking for or in connection with which the purchase is made must be disregarded.’ . .
Cited – Raza Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatan (The Indian Case) PC 1939
Land was to be acquired for anti-malarial works relating to a harbour development. Lord Romer rejected the suggestion in a compulsory purchase valuation that it would be possible to ascertain the potential special value of land to a ‘special . .
Cited – Swordheath Properties Ltd v Tabet CA 1979
The amount of damages payable by a trespasser on land is ordinarily the letting value of the premises. Megaw LJ said: ‘It appears to me to be clear, both as a matter of principle and of authority, that in a case of this sort the plaintiff, when he . .
Cited – Inverugie Investments Ltd v Hackett PC 1995
The plaintiff was the lessee of 30 apartments within a hotel complex. The defendants ejected the plaintiff and for some years used the apartments as part of the hotel with an average occupancy rate of not more than 40%.
Held: The defendants . .
Cited – BP Petroleum Developments Ltd v Ryder 1987
Compensation was made on the basis of an increase in value from andpound;40 per annum per acre to andpound;45 for the rights over the additional land sought by the special purchaser, the increase being made ‘for him to be certain that he will . .
Cited – Sempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Cited – Director of Buildings and Lands v Shun Fung Ironworks Ltd PC 20-Feb-1995
Compensation is payable for losses properly anticipating resumption of possession of the land. The principle of equivalence gives rise to the statutory right to interest under section 11(1). The council explained the conceptual foundation of the . .
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Horsford v Bird and others PC 17-Jan-2006
(Antigua and Barbuda) The Board was asked as to the damages to be awarded after the defendant had built a wall which encroached on the claimant’s land and appropriated some 455 square feet. Aggravated damages had been awarded. The court was asked . .
Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Cited – Jaggard v Sawyer CC 1993
(Weymouth County Court) The court refused an injunction to a land owner who complained that a neighbour had erected a building over a right of way. The court awarded damages of andpound;694.44, being a proportionate part of the the sum he might be . .
Cited – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
Cited – Liverpool and Lancashire Properties Limited and Another v Lunn Poly Ltd and Another CA 15-Mar-2006
Where a tenant successfully obtained relief from forfeiture, and compensatory damages were payable under the 1858 Act in lieu of an injunction, and had assigned the lease for a profit the court could exceptionally use its equitable jurisdiction to . .
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Approved – Mercury Communications Ltd v London and India Dock Investments Ltd 1993
. .
Cited – Mercury Communications Ltd v London and India Dock Investments Ltd 1993
. .
Cited – Stebbing v Metropolitan Board of Works 1870
In compensation for compulsory purchase (in this case, of graveyards), ‘value’ means value to the owner, not value to the purchaser. The graveyards were therefore of little or no value to the rector.
Cockburn CJ said: ‘When Parliament gives . .

Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 31 October 2021; Ref: scu.421099

Fowler v Barron: CA 23 Apr 2008

The parties had lived together for many years but without marrying. The house had been put in joint names, but without specific advice on the issue or any express declaration of trust. In practice Mr Barron made the direct payments for the house and Mrs Fowler paid for household items. Mrs Fowler appealed a finding that there had been no intention to create equal interests, and that she had no interest in the capital.
Held: The judge had erred in concenrating so much on the respective financial contributions, and the respondent had not fully discharged the onus of negativing the intent that the parties should share the property equally. The appeal was allowed, and Mrs Fowler awarded a one half share in the house.

Waller LJ, Arden LJ, Toulson LJ
[2008] EWCA Civ 377
Bailii
England and Wales
Citing:
Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
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 – Malayan Credit Ltd v Jack Chia-MPH Ltd PC 1986
The Board considered whether there were only three situations in which joint owners of property could be found to be tenants in common, and whether there were other circumstances which could lead to a contrary conclusion.
Held: It was . .
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 – Carlton v Goodman CA 29-Apr-2002
The defendant claimed an interest in a house. The deceased had been a sitting tenant, and wanted to purchase his house. He could not obtain finance alone, and she joined with him, becoming liable under the mortgage. She did not live in the house . .

Lists of cited by and citing cases may be incomplete.

Family, Land

Updated: 31 October 2021; Ref: scu.267044

Smith, Regina (on the Application of) v The Land Registry (Peterborough Office): Admn 13 Feb 2009

The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the necessary intention to possess exclusively of others.
Held: The claim failed. A public right of way could not be defeated by adverse possession.

Pelling QC J
[2009] EWHC 328 (Admin)
Bailii
Wildlife and Countryside Act 1981 851
England and Wales
Citing:
Cited – Dawes v Hawkins 6-Jul-1860
A highway had been unlawfully stopped up by the adjoining owner and diverted by another route. It was held that the public had a right to deviate on to the adjoining land. The road was subsequently diverted back to its original route. Some years . .
Cited – Turner v Ringwood Highway Board 1870
The highway extended to a width of 50 feet. After adoption trees grew in that part not used as the actual road.
Held: Once a highway exists the public has a right to use the whole of the width of the highway and not just that part of it . .
Cited – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – Seddon v Smith 1877
Adverse possession was claimed over land subject to a private grant of a right of way. The defendant had a paper title to a strip of land along Molyneux Lane. The plaintiff sought damages for trespass, claiming for wrongful abstraction of coal from . .
Cited – Lord Advocate v Lord Lovat 1880
Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in . .
Cited – London Borough of Lambeth v Blackburn CA 14-Jun-2001
The appellant had broken into an empty council owned flat, and subsequently occupied it. After twelve years the authority obtained a court order for possession. The court had held that the appellant had not had a sufficient animus possidendi since . .
Cited – London Borough of Bromley v Morritt CA 21-Jun-1999
The defendants appealed against orders relating to the construction of a sewage pipe through their garden under powers given under the Act. The defendant had later blocked the pipe and the authority sought to recover the costs of repair. He claimed . .
Cited – Haigh v West CA 1893
The court was asked about rights of pasturage granted over a public highway. The neighbouring land owner, and Lord of the Manor, claimed damages from the tenant for trespass in pasturing his sheep on the road. There was no evidence in whom the soil . .
Cited – Harvey v Truro Rural District Council 1903
Land which had been built over was part of the public highway. The highway authority had as far back as living memory extended used a portion of a strip alongside a highway for the purpose of depositing material for the repair of the roads. A few . .
Cited – St Ives Corporation v Wadsworth ChD 1908
A piece of land bordered by a river a bridge and a highway was fenced off by the highway authority. The defendant had used the land as part of his adjoining house and land. The plaintiffs sought clarification that they could remove the fence as they . .
Cited – Hirst and Agu v Chief Constable of West Yorkshire QBD 1987
The defendants were arrested after distributing leaflets outside a furriers, and appealed against convictions for obstructing the highway.
Held: The appeals succeeded. In deciding whether there was a lawful excuse for a technical obstruction . .
Cited – Powell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘In the absence of evidence to the . .
Cited – Tithe Redemption Commission v Runcorn Urban District Council CA 1954
The court considered the effect of a strip of land being designated as a public right of way. Denning LJ said: ‘The statute . . vest[s] in the local authority the top spit, or perhaps, I should say, the top two spits of the road for a legal estate . .
Cited – Seekings v Clarke 1961
Lord Parker CJ said: ‘It is perfectly clear that anything which substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature is an unlawful obstruction’. . .
Cited – Glamorgan County Council v Carter QBD 1962
A caravan owner appealed against an enforcement notice on the basis that no planning permission was required because the parking of caravans was the purpose for which the land had been last used.
Held: Factually that was correct. Prima facie . .

Cited by:
Appeal from – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Land

Updated: 31 October 2021; Ref: scu.317980

Raineri v Miles: HL 1980

Damages may be awarded for a delay in completion under an open contract even though time was not of the essence. The failure to complete on the day fixed was a breach. Lord Edmund-Davies said: ‘The fact that time had not been declared to be of the essence does not mean that the express date for completion could be supplanted by the court’s treating it as a mere ‘target’ date and, in effect, enabling the defaulting party to insert into the contractual provision some such words as or within a reasonable time thereafter”. Nevertheless, the innocent party must do all he reasonably can to reduce his losses.
Lord Fraser of Tullybelton explained the decision in United Scientific: ‘The actual decision in the United Scientific Holdings case [1978] AC 904 depended upon treating the fact that strict adherence to the timetable was not of the essence of the contract as equivalent to its not being a condition precedent to enforcing the rent review clause. No doubt that may mean that the law has developed somewhat since the Act of 1873, as indeed Lord Diplock had stressed earlier in his speech, but it did not involve approval for the proposition that failure to adhere to the timetable was not a breach of the contract.’

Lord Edmund-Davies, Lord Fraser of Tullybelton
[1981] AC 1050, [1980] 2 All ER 145
England and Wales
Citing:
Cited – United Scientific Holdings v Burnley Borough Council HL 1978
The House was asked whether a failure by a lessor to keep strictly to the timetable laid down in a rent review clause in a lease necessarily deprived the lessor of the benefit of the rent review.
Held: A stipulation as to time in an option . .

Cited by:
Cited – Riverside Housing Association Ltd v White and Another HL 25-Apr-2007
The claimant housing association had raised its rents. The tenants objected that they were unlawful not having complied with the tenancy agreements. They said the clause allowed only one increase in each June of a year, and then only if 28 days . .

Lists of cited by and citing cases may be incomplete.

Damages, Land

Leading Case

Updated: 31 October 2021; Ref: scu.219187

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 as at the time of the sale, not the time of the purchase. It was artificial to attribute to them some notional agreement fixed at the date of the purchase.
Chadwick LJ said: ‘in many such cases, the answer will be provided by evidence of what they said and did at the time of the acquisition. But, in a case where there is no evidence of any discussion between them as to the amount of the share which each was to have-and even in a case where the evidence is that there was no discussion on that point-the question still requires an answer. It must now be accepted that (at least in this court and below) the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property. And in that context, ‘the whole course of dealing between them in relation to the property’ includes the arrangements which they make from time to time in order to meet the outgoings (for example, mortgage contributions, council tax and utilities, repairs, insurance and housekeeping) which have to be met if they are to live in the property as their home.’

Chadwick LJ, Mance LJ, Scott Baker LJ
[2004] EWCA Civ 546, Times 14-Jul-2004, [2004] 2 FLR 669, [2005] Fam 211
Bailii
Trusts of Land and Appointment of Trustees Act 1996 14, Law of Property Act 1925 53(1)
England and Wales
Citing:
Cited – Springette v Defoe CA 1-Mar-1992
Property was purchased in joint names, but with no express declaration of the beneficial interests. The couple had lived together for a short time as joint tenants of the local authority. They were able to purchase at a substantial discount from the . .
Cited – Midland Bank v Cooke and Another CA 13-Jul-1995
Equal equitable interest inferrable without proof
The bank sought to enforce a charge given by the husband to secure a business loan. The property was purchased from the husband’s and his family’s resources and the loan, and was in his name. There had been no discussion or agreement between husband . .
Cited – Walker v Hall CA 1984
The court considered the way of distributing property purchased by an unmarried couple: ‘When such a relationship comes to an end, just as with many divorced couples, there are likely to be disputes about the distribution of shared property. How are . .
Cited – Turton v Turton CA 1988
When ascertaining the beneficial interests in a family home purchased by an unmarried couple, those interests had to be ascertained from consideration of the intentions of the parties at the time of the purchase; they were not to be left for . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Cited – Eves v Eves CA 28-Apr-1975
The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired . .
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Approved – McFarlane v McFarlane CANI 1972
The parties disputed their respective shares in the family home. The facts in Pettitt and Gissing ‘were not such as to facilitate or encourage a comprehensive statement of this vexed branch of the law’ and ‘much remains unsettled.’ The court . .
Cited – Stokes v Anderson CA 1991
The claimant had made two payments, amounting together to andpound;12,000, towards the acquisition of the one half share of the defendant’s ex-wife in the net equity (valued at andpound;90,000) in a house in which the claimant and the respondent . .
Cited – Huntingford v Hobbs CA 1-Mar-1992
The parties lived together in a property transferred to the woman after her divorce. That house was sold and the defendant contributed the capital. There was a joint mortgage, but the plaintiff alone had an income from which to make payments. The . .
Cited – Evans v Hayward CA 1-Jun-1992
The property had been bought in joint names at a discounted price under a ‘right to buy’ conferred by the Housing Act 1985; but where the discount was substantially attributable to the plaintiff’s former occupation as local authority tenant. The . .
Cited – Saville v Goodall CA 1993
The court considered the requirements to establish that property purchased in one name but for an unmarried couple were to be held on trust: ‘[Counsel] referred us to a recent decision of this court in Springette v Defoe [1992] 2 FLR 388, which . .
Cited – Marsh v von Sternberg QBD 1986
In a constructive trust case, a discount from the open market price given to a sitting tenant by the landlord selling a flat was treated as a relevant contribution by the sitting tenant. . .
Cited – Drake v Whipp CA 30-Nov-1995
The parties, an unmarried cohabiting couple, disputed their respective shares in a property held in the man’s sole name. Both had made direct contributions both to the purchase of a barn and to its expensive conversion into a home. The plaintiff . .
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Carlton v Goodman CA 29-Apr-2002
The defendant claimed an interest in a house. The deceased had been a sitting tenant, and wanted to purchase his house. He could not obtain finance alone, and she joined with him, becoming liable under the mortgage. She did not live in the house . .

Cited by:
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – Cobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
Cited – Strover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Cited – Van Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
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 – 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 . .
Cited – Fowler v Barron CA 23-Apr-2008
The parties had lived together for many years but without marrying. The house had been put in joint names, but without specific advice on the issue or any express declaration of trust. In practice Mr Barron made the direct payments for the house and . .
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 . .
Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .

Lists of cited by and citing cases may be incomplete.

Trusts, Land

Leading Case

Updated: 31 October 2021; Ref: scu.196770

Regina (Ashbrook) v East Sussex County Council: CA 20 Nov 2002

The claimant complained that the respondent had failed properly to secure removal of an admitted obstruction to a public footpath. The landowner had applied for a diversion of the footpath, which the respondent recommended for adoption, but the complainant had objected that the respondent had failed to follow its own policies, in that it should have considered first whether the obstruction could reasonably have been removed. The matter was to be referred to the Secretary of State for a possible public enquiry.
Held: The policy document was not formally adopted, but the council had not taken proper account of the existence of a continued flouting of a court order by the landowner, and the Order for diversion must be quashed and the Council must reconsider the application.

Lord Justice Dyson, Lord Justice Schiemann, Lady Justice Arden
[2002] EWCA Civ 1701, [2003] 1 P and CR 13
Bailii
Highways Act 1980 119
England and Wales
Citing:
Cited – Regina v Westminster City Council Ex Parte Ermakov CA 14-Nov-1995
The applicant, having moved here from Greece, applied for emergency housing. The Council received no reply to its requests for corroboration sent to Greece. Housing was refused, but the officer later suggested that the real reason was that the . .
Cited – Regina (Hargrave and Another) v Stroud District Council CA 22-Jul-2002
The applicants had sought to vary a footpath to move it further away from their house. The parish council objected. The council had decided that it would be expedient under the Act to divert it, but went on to decide against a diversion and against . .
Cited – Regina v London Borough of Newham and Manik Bibi and Ataya Al-Nashed CA 26-Apr-2001
CS The housing authority had mistakenly thought that it was obliged to re-house the applicants under the Act with secure accommodation, and promised them accordingly.
Held: That promise had created a . .

Lists of cited by and citing cases may be incomplete.

Land, Local Government, Planning

Updated: 31 October 2021; Ref: scu.178439

Horsham Properties Group Ltd v Clark and Another: ChD 8 Oct 2008

The court was asked whether section 101 of the 1925 Act infringes the Convention rights of residential mortgagors by allowing mortgagees to overreach the mortgagor by selling the property out of court, without first obtaining a court order either for possession or sale. The owners had charged the property, but fell into arrears. The creditor appointed receivers who contracted to sell the property at auction. No court proceedings had been taken. The claimants now sought possession as against the chargors who ha remained in possession.
Held: The argument failed; there was no infringement of the mortgagor’s rights. The loss of the equity of redemption occurred on the sale by transfer of the property. Section 101 was not infringing since it serves to implement rather than override the private bargain between mortgagor and mortgagee. Any deprivation of possession constituted by the exercise by a mortgagee of its powers under section 101 of the Law of Property Act after a relevant default by the mortgagor is justified in the public interest, and requires no case-by-case exercise of a proportionality discretion by the court.
‘My primary reason for that conclusion is that section 101 serves to implement rather than override the private bargain between mortgagor and mortgagee. As I have described, its history, going back to 1860, is that it supplies a convenient power of sale out of court to mortgagees in substitution for the parties having (as they routinely did before 1860) to spell out such a power in every legal mortgage. It is in substance a form of conveyancing shorthand designed to implement the ordinary expectations of mortgagors and mortgagees while reducing the costs and delays of conveyancing.
Furthermore, all the statutory powers in section 101 are expressed to be subject to contrary intention. Section 101(4) provides that: ‘This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and has effect subject to the terms of the mortgage deed and to the provisions therein contained.’
That sub-section on its own demonstrates that section 101 serves rather than overrides the parties’ bargain.’

Briggs J
[2008] EWHC 2327 (Ch)
Bailii, Times
Law of Property Act 1925 101, European Convention on Human Rights 8 A1 FP
England and Wales
Citing:
Cited – Ropaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
Cited – Shaws (EAL) Ltd v Pennycook CA 2-Feb-2004
Tenant’s First Notice to terminate, stood
The landlord served a notice to terminate the business lease. The tenant first served a notice to say that it would not seek a new lease, but then, and still within the time limit, it served a second counter-notice seeking a new tenancy. The . .
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 – Barclays Bank plc v Alcorn ChD 2002
Hart J said: ‘It seems to me however, that her general submission on the effect of the Human Rights Act in relationship to a mortgagee’s action for possession is correct, namely, that the matter is regulated by section 36 of the Administration of . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Wood v United Kingdom ECHR 2-Jul-1997
(Commission decision as to admissibility) The applicant’s house had been repossessed by a mortgagee when she defaulted on her payments due under the mortgage. Her complaint was found to be manifestly ill-founded, saying ‘In so far as the . .

Cited by:
Cited – Hand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .

Lists of cited by and citing cases may be incomplete.

Land, Human Rights

Updated: 31 October 2021; Ref: scu.276774

Hardy and Another v Haselden and Others: CA 29 Nov 2011

The claimants had taken up occupation of a farm under an informal arrangement which they now said amounted to a tenancy for ther lives. The freeholder’s, personal representatives of the original grantors, appealed against a declaration accordingly. The respondents said that they had spent over andpound;30,000 in repairs because of the agreement.
Held: The appeal succeeded. The alleged terms were not consistent with the grant of any lease or tenancy as there was no term certain. Nor had there been any written disposition, so that without compliance with section 54(2), no equitable interest could arise, nor any contract for such because of the 1989 Act. A retrial was ordered.

Sir A Morritt Ch, Hooper, Rafferyt LJJ
[2011] EWCA Civ 1387
Bailii
Law of Property Act 1925 149(6), Law of Property (Miscellaneous Provisions) Act 1989 2(1)
England and Wales
Citing:
Cited – Bank of Scotland v Pereira and Others CA 9-Mar-2011
The mortgagor sought to appeal against a mortgagee’s possession order. The Court of Appeal considered the interaction between an application under CPR rule 39.3 to set aside a default judgment and an application for permission to appeal under CPR Pt . .
Cited – Berrisford v Mexfield Housing Co-Operative Ltd SC 9-Nov-2011
The tenant appealed against an order granting possession. The tenancy, being held of a mutual housing co-operative did not have security but was in a form restricting the landlord’s right to recover possession, and the tenant resisted saying that it . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Land

Updated: 31 October 2021; Ref: scu.449033

Hampstead and Suburban Properties Ltd v Diomedous: ChD 1969

A covenant against causing nuisance or annoyance is to be read to refer to wider nuisance than is referred to by the tort of nuisance. It is to be applied ‘according to robust and common sense standards’ Megarry J granted an interlocutory injunction to restrain the playing of musical instruments in breach of covenant, saying: ‘Thirdly, there is Doherty v Allman. I accept, of course, that Lord Cairns’ words were uttered in a case where what was in issue was a perpetual injunction and not an interlocutory injunction. Indeed, the words seem to be obiter, for no negative covenant was present in that case. But these considerations do not preclude the words from having any weight or cogency in relation to an interlocutory injunction. Where there is a plain and uncontested breach of a clear covenant not do a particular thing, and the convenantor promptly begins to do what he has promised not to do, then in the absence of special circumstances it seems to me that the sooner he is compelled to keep his promise the better. In such a case I do not think that the enforceability of the defendant’s obligation falls into two stages, so that between the issue of the writ and the trial the defendant will be enjoined only if that is dictated by the balance of convenience and so on, and not until the trial will Lord Cairns’ statement come into its own. Indeed, Lord Cairns’ express reference to ‘the balance of convenience or inconvenience’ suggests that he had not forgotten interlocutory injunctions. I see no reason for allowing a covenantor who stands in clear breach of an express prohibition to have a holiday from the enforcement of his obligations until the trial. It may be that there is no direct authority on this point; certainly none has been cited. If so, it is high time that there was such authority; and now there is.’

Megarry J
[1969] 1 Ch 248, [1968] 3 All ER 545
England and Wales
Cited by:
Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Cited – Araci v Fallon CA 4-Jun-2011
The claimant said that the defendant jockey had agreed to ride the claimant’s horse in the Epsom Derby (to be run on the date of the hearing), and that he should not be allowed to ride another horse. The parties had entered into a Rider Retainer . .

Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 31 October 2021; Ref: scu.238679

Wrotham Park Estate Ltd v Parkside Homes Ltd: ChD 1974

55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in accordance with an agreed lay-out plan was valid. It remained, or had not been shown not to remain, capable of being of benefit to the dominant estate, but the court refused injunctions against developers for breach of the injunction (and retained ownership of the roads) and against house-purchasers because it would be an unpardonable waste of much needed houses to pull them down. No damage of a financial nature had been done to the plaintiffs by breach of the lay-out stipulation. The absence of financially measurable loss flowing from a breach of contract was not necessarily fatal to a claimant’s claim for compensation. It would be unjust that the defendants should ‘be left in undisturbed possession of the fruits of their wrongdoing’ merely because the court considered it wasteful to issue an injunction ordering the demolition of the houses. The court awarded damages as a substitute for an injunction. The damages were measured as the amount that might reasonably have been demanded by the plaintiff as payment for relaxing the covenant – five per cent of the developer’s anticipated profit.
Brightman J said: ‘I turn to the consideration of the quantum of damages. I was asked by the parties to assess the damages myself, should the question arise, rather than to direct an inquiry. The basic rule in contract is to measure damages by that sum of money which will put the plaintiff in the same position as he would have been in if the contract had not been broken. From that basis, the defendants argue that the damages are nil or purely nominal, because the value of the Wrotham Park Estate as the plaintiffs concede is not diminished by one farthing in consequence of the construction of a road and the erection of 14 houses on the allotment site. If, therefore, the defendants submit, I refuse an injunction I ought to award no damages in lieu. That would seem, on the face of it, a result of questionable fairness on the facts of this case. Had the offending development been the erection of an advertisement hoarding in defiance of protest and writ, I apprehend (assuming my conclusions on other points to be correct) that the court would not have hesitated to grant a mandatory injunction for its removal. If, for social and economic reasons, the court does not see fit in the exercise of its discretion, to order demolition of the 14 houses, is it just that the plaintiffs should receive no compensation and that the defendants should be left in undisturbed possession of the fruits of their wrongdoing? Common sense would seem to demand a negative answer to this question’.
And ‘In the present case I am faced with the problem what damages ought to be awarded to the plaintiffs in the place of mandatory injunctions which would have restored the plaintiffs’ rights. If the plaintiffs are merely given a nominal sum, or no sum, in substitution for injunctions, it seems to me that justice will manifestly not have been done.
As I have said, the general rule would be to measure damages by reference to that sum which would place the plaintiffs in the same position as if the covenant had not been broken. Parkside and the individual purchasers could have avoided breaking the covenant in two ways. One course would have been not to develop the allotment site. The other course would have been for Parkside to have sought from the plaintiffs a relaxation of the covenant. On the facts of this particular case the plaintiffs, rightly conscious of their obligations towards existing residents, would clearly not have granted any relaxation, but for present purposes I must assume that it could have been induced to do so. In my judgment a just substitute for a mandatory injunction would be such a sum of money as might reasonably have been demanded by the plaintiffs from Parkside as a quid pro quo for relaxing the covenant.’

Brightman J
[1974] 1 WLR 798, [1974] 2 All ER 321
England and Wales
Citing:
Cited – Whitwham v Westminster Brymbo Coal and Coke Co CA 24-Jun-1896
Common law damages for the misuse of property involved an award of a sum equivalent to the price or hire that a reasonable person would pay for such use, even if the owner would not himself actually have been using the property. This case involved . .
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .

Cited by:
Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Preferred – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Cited – Surrey County Council and Mole District Council v Bredero Homes Ltd ChD 1992
Land was agreed to be sold for development in accordance with an existing planning permission. Instead a later permission was obtained, and more houses were built. The plaintiff had not sought to restrain or prevent the breach, but now sought . .
Considered – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Applied – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Distinguished – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
Cited – Carr-Saunders v Dick McNeill Associates 1986
The claim was for interference with the plaintiff’s right to light.
Held: There is a need to approach infringements of easements of light with flexibility. The plaintiff’s subjective views as to the loss of light were not to the point. When . .
Cited – Severn Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
Approved – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Cited – Regan v Paul Properties DPF No 1 Ltd and others ChD 27-Jul-2006
The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – Tamares (Vincent Square) Ltd. v Fairpoint Properties (Vincent Square) Ltd ChD 8-Feb-2007
The defendant had been found liable for infringing the claimant’s right of light. The court considered the proper measure of damages.
Held: The court should ask what might be the fair result of a hypothetical negiation for the sale of the . .
Cited – Harris v Williams-Wynne ChD 11-Feb-2005
The parties agreed in sale agreement for a plot of land that the buyer would not erect any additional building. He did so, and when he came to try to sell it the original vendor objected. The purchaser’s solicitors registered the agreement for sale. . .
Cited – Stockport Metropolitan Borough Council v Alwiyah Developments CA 1983
There was to be a development of six flats on land subject to a restrictive covenant. The developer began without a modification being sought. The benefit of the covenant was attached to adjoining land owned by the local authority, which they . .
Cited – Winter and Another v Traditional and Contemporary Contracts Ltd CA 7-Nov-2007
The land-owners applied for a variation of a restrictive covenant to allow them to put a second house on their plot. They had bought out the right of the original builder, but a neighbour also had the benefit of the covenant. They now appealed the . .
Explained – Stoke-on-Trent City Council v W and J Wass Ltd CA 1988
The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Jones and Another v Ruth and Another CA 12-Jul-2011
The parties were neighbours. The claimants succeeded in their assertion of trespass and nuisance in building works carried out by the defendant. The claimant appealed against the judge’s failure to award damages for harassment, saying that though . .
Cited – HKRUK II (CHC) Ltd v Heaney ChD 3-Sep-2010
The claimant sought a declaration that its property was free of a suggested right of light in favour of its neighbour . .
Cited – One Step (Support) Ltd v Morris-Garner and Another QBD 7-Jul-2014
The defendant had sold her interest in the claimant company, undertaking not to compete. The claimant now sought damages alleging a breach.
Held: The defendants had acted in breach of contract by breaching the non-compete covenants (although . .
Cited – Morris-Garner and Another v One Step (Support) Ltd CA 22-Mar-2016
Alleged breach of non-solicitation covenants in the sale of a business providing ‘supported living’ services for children leaving care and vulnerable adults.
Held: The defendant’s appeal was dismissed.
The test was whether an award of . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages, Land

Leading Case

Updated: 31 October 2021; Ref: scu.180884

Taylor v Whitehead: 28 Jun 1781

Rights of Way are Particular to the Subject Land

A motion may be made in arrest of judgment after a rule for a new trial has been discharged, and at any time before judgment is entered up. It is not a good justification in trespass, that the defendant has a right of way over part of the plaintiffs land, and that he had gone upon the adjoining land, because the way was impassable from being overflowed by a river.
The dominant owner of an easement of way (in whose interest it is that the way be kept in good repair) is entitled to maintain and repair the way and, if he wants the way to be kept in repair, must himself bear the cost.

Lord Mansfield
[1781] EngR 77, (1781) 2 Doug 745, (1781) 99 ER 475
Commonlii
England and Wales
Cited by:
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Leading Case

Updated: 31 October 2021; Ref: scu.372543

Edwards v Railway Executive: HL 1952

A boy aged 9 was injured on a railway line. He had been warned not to go onto the land and had found his way through a defective fence. He claimed in negligence. The fence had been breached by children with some frequency for many years before the accident. When defects were observed by the Defendant’s employees, repairs were duly effected. These were required with frequency. The evidence was that the fence was intact on the accident date.
Held: He was a trespassr and not a licensee.
Lord Goddard said: ‘repeated trespass of itself confers no licence . . how is it to be said that (an occupier) has licensed what he cannot prevent . . Now, to find a licence there must be evidence either of express permission or that the landowner has so conducted himself that he cannot be heard to say that he did not give it . . What then have they done in this case to lead anyone to suppose that they may go on to their property to play ?’
Lord Oaksey said: ‘In my opinion, in considering the question whether a licence can be inferred, the state of mind of the suggested licensee must be considered. The circumstances must be such that the suggested licensee could have thought and did think that he was not trespassing but was on the property in question by the leave and licence of its owner.’
Lord Porter said that the first question to be decided was: ‘whether there was any evidence from which it could be inferred that children from the recreation ground had become licensees to enter the respondent’s premises and toboggan down the embankment . . There must, I think, be such assent to the user relied upon as amounts to a licence to use the premises. Whether that result can be inferred or not must, of course, be a question of degree, but in my view a court is not justified in likely inferring it . . The onus is on the appellants to establish their licence, and in my opinion they do not do so merely by showing that, in spite of a fence now accepted as complying with the Act requiring the respondents to fence, children again and again broke their way through. What more, the appellants asked, could the respondents do? Report to the Corporation? But their caretaker knew already. Prosecute? First you have to catch your children and even then would that be more effective? In any case I cannot see that the respondents were under any obligation to do more than keep their premises shut off by a fence which was duly repaired when broken and obviously intended to keep intruders out.’

Lord Porter, Lord Goddard, Lord Oaksey
[1952] 2 All ER 430, [1952] AC 737
Cited by:
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Harvey v Plymouth City Council CA 29-Jul-2010
The Council appealed against a finding of liability under the 1957 Act after the claimant was injured after jumping over a fence to flee hving to pay a taxi, and falling down a steep slope onto a car park. The land had been licenced to the . .

Lists of cited by and citing cases may be incomplete.

Negligence, Personal Injury, Land

Leading Case

Updated: 31 October 2021; Ref: scu.182867

Monsanto Plc v Tilly and Others: CA 30 Nov 1999

A group carried out direct action in protesting against GM crops by pulling up the plants. The group’s media liaison officer, while not actually pulling up plants himself, ‘reconnoitred the site the day before. He met the press at a prearranged rendezvous and led them to the site for the purpose of photographing and reporting the uprooting activities. He was present while the others uprooted the plants and he explained the purpose and significance of their acts to the media’
Held: He had no arguable defence to a claim that he was a joint tortfeasor.
The defence of justification by necessity to trespass to land and to the damage to crops on that land is very closely circumscribed. It was available only in circumstances of imminent and serious danger to life or property. Here damage to the genetically modified crops, part of a field trial by the plaintiffs, was for the purpose of obtaining publicity for the defendants genuinely and sincerely held views, but not in circumstances which might make the defence available.
Stuart Smith LJ said: ‘Those views were genuinely and sincerely held and there was nothing whatever unlawful in trying to persuade others and particularly the Government of the rightness of their views provided they did not employ unlawful means to do so, and provided they did not incite others to use unlawful means, such that they were liable in tort to the Claimant . . In a democratic society, the object of change in Government policy had to be effected by lawful and not unlawful means. Those who suffered infringement of their lawful rights were entitled to the protection of the law. If others deliberately infringed those rights in order to attract publicity to their cause, however sincerely they believed in its correctness, they had to bear the consequences of their law breaking. That was fundamental to the rule of law in a civilised and democratic society’

Stuart Smith, Pill, Mummery LJJ
Times 30-Nov-1999, [2000] ENV LR 313, [1999] EWCA Civ 3044, [1999] EG 143
Bailii
England and Wales
Citing:
Cited – Southwark London Borough Council v Williams CA 1971
No Defence of Homelessness to Squatters
The defendants, in dire need of housing accommodation entered empty houses owned by the plaintiff local authority as squatters. The court considered the defence of necessity.
Held: The proper use of abandoned council properties is best . .

Cited by:
Cited – University of Oxford and others v Broughton and others QBD 10-Nov-2004
The claimants sought injunctions to protect themselves against the activities of animal rights protesters, including an order preventing them coming with a wide area around the village.
Held: The orders made were justified with the additional . .
Cited – White v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – Fish and Fish Ltd v Sea Shepherd UK and Another AdCt 25-Jun-2012
The claimant company was engaged in tuna fish culture off shore to Malta. The defendant ship was owned by a charity which campaigned against breaches of animal preservation conventions. Fish were being transporting live blue fin tuna in towed . .
Cited – Sea Shepherd UK v Fish and Fish Ltd SC 4-Mar-2015
Accessory Liability in Tort
The court considered the concept of accessory liability in tort. Activists had caused damage to vessels of the respondent which was transporting live tuna in cages, and had caused considerable damage. The appellant company owned the ship from which . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Land

Leading Case

Updated: 31 October 2021; Ref: scu.83804

Yaxley v Gotts and Another: CA 24 Jun 1999

Oral Agreement Creating Proprietory Estoppel

The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name of the first defendant, the second defendant’s son. The Plaintiff nevertheless fulfilled his promise. The parties fell out, and the first Defendant then refused to grant to the Plaintiff any interest in the property. The judge found that the oral agreement with the second Defendant had been adopted by his son. The Plaintiff was entitled to an interest by a proprietary estoppel, and he ordered the first Defendant to grant him a 99 year lease of the ground floor.
Held: The defendant’s appeal failed. The oral agreement was enforceable having created a trust, even though no paper had been signed to evidence the contract as required by law. A constructive trust might be created where previously part performance or proprietary estoppel might have created one. The doctrine of part performance has not survived the 1989 Act, but the doctrine of estoppel may still operate to modify (and sometimes perhaps even counteract) the effect of section 2 of the 1989 Act. The 1989 Act represents ‘a radical change in the law’. ‘In the area of a joint enterprise for the acquisition of land (which may be, but is not necessarily, the matrimonial home) the two concepts [estoppel and constructive trust] coincide’; and ‘the species of constructive trust based on ‘common intention’ is closely akin to, if not indistinguishable from, proprietary estoppel’.

Robert Walker LJ, Beldam LJ, Clarke LJ
Gazette 14-Jul-1999, Times 08-Jul-1999, [1999] 1 WLR 1217, [2000] Ch 162, [1999] EGCS 92, [1999] EWCA Civ 3006, [2000] 1 All ER 711
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
Cited – Crabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .
Cited – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .
Cited – Steadman v Steadman HL 1976
A mere payment of a sum of money might amount to an act of part performance, as might the act of a purchaser instructing solicitors to prepare and submit a draft conveyance or transfer, so as to leave asituation capable of enforcement in equity. . .
Cited – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
Cited – Lester v Foxcroft 1701
Entry into possession under agreement for lease and expenditure of money – Part performance . .
Cited – Britan v Rossiter 1879
A contract which fails to meet the standards required under the Act is not not void, but is merely unenforceable. . .
Cited – Maddison v Alderson HL 1883
The requirement of the doctrine of part performance is that the acts of part performance relied upon must be ‘referable’ to the contract sued on. The principle underlying the doctrine of part performance was expressed by Lord Selborne: ‘In a suit . .
Cited – Kok Hoong v Leong Cheong Kweng Mines Ltd PC 1964
A clear public policy underlying a statute (for instance, the need to protect vulnerable persons dealing with moneylenders or landlords) prevents an estoppel arising: ‘To ask whether the law that confronts the estoppel can be seen to represent a . .
Cited – Westdeutsche Landesbank Girozentrale v Islington London Borough Council; Kleinwort Benson Ltd v Sandwell Borough Council ChD 23-Feb-1993
A bank, having made payment under an void interest rate swap agreement to a local authority, was entitled to recover the payments made under the equitable doctrine of restitution. It would be wrong to allow the local authorities to enjoy an unjust . .
Cited – United Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
Cited – Godden v Merthyr Tydfil Housing Association CA 15-Jan-1997
The Plaintiff was a building contractor; the Defendant a housing association engaged in developing suitable sites for residential accommodation for letting to tenants. Before the contract the parties had successfully completed what was been called . .
Cited – Bankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Cited – King v Jackson (T/a Jackson Flower Company) CA 16-Jul-1997
The defendant appealed an award of pounds 11,000 damages for unlawful eviction of his tenant. The tenant had found herself unable to pay the rent and had given notice to quit. She was then told to leave immediately. The judge awarded statutory . .
Cited – Plimmer v Mayor, Councillors and Citizens of the City of Wellington PC 1884
(New Zealand) Mr Plimmer had occupied land under a revocable licence from the Corporation’s predecessor-in-title and at their request had made extensive improvements to it. He sought compensation when the land was to be vested in the defendant. The . .
Cited – Gregory v Mighell 1811
. .
Cited – Take Harvest Ltd v Liu and Another PC 9-Mar-1993
(Hong Kong) An oral agreement to surrender a lease of less than three years might not defeat a rent arrears claim under an estoppel.
An unenforceable agreement can be used as a defence in an action brought by another party only if raising that . .
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 – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Lloyds Bank Plc v Carrick and Another CA 17-Apr-1996
Mrs Carrick was a widow who orally agreed with her brother in law, a builder, to sell her house and pay him the proceeds, for which he would provide her with a new house. She did so and moved into the new house, which remained in the . .
Cited – Connecticut Fire Insurance Co v Kavanagh PC 1892
An appeal court must scrutinise most carefully an argument or point not taken at the trial and presented for the first time on appeal to ensure that injustice is not caused. ‘When a question of law is raised for the first time in a court of last . .
Cited – Hodgson v Marks ChD 1970
The plaintiff, an elderly widow, transferred her house into the name of her lodger, but remained in occupation of the house, on exactly the same basis as before, until the lodger sold the house and the purchaser had mortgaged it to a building . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Pascoe v Turner CA 1-Dec-1978
The defendant had been assured by the plaintiff that ‘the house is yours and everything in it.’ In reliance on that assurance she carried out improvements to the house. Although the improvements were modest, their cost represented a large part of . .
Leave to appeal – Yaxley v Gotts and Gotts CA 20-Mar-1998
The defendants were granted leave to appeal out of time. . .

Cited by:
Cited – X v Y, Z sub nom In re E (Enduring power of attorney) ChD 18-Feb-2000
The application was an appeal against an order registering an enduring power of attorney. The appeal from Master Lush was by way of rehearing. The donor had executed two powers. The second was invalid, and the donees of the first power sought to . .
Cited – Parker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
Cited – Evans v James (Administratrix of the Estate of Thomas Hopkin Deceased) CA 5-Jul-1999
Before the parties called evidence, and having read the papers, the court considered that there was no real defence shown, and invited submissions. Negotiations for the grant of a tenancy had been terminated by the sudden illness of the proposed . .
Cited – Hyett v Stanley and others CA 20-Jun-2003
The couple had lived together at the property without being married for several years. The house was held in the man’s sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half . .
Cited – Nweze and Another v Nwoko CA 29-Mar-2004
The parties had settled their dispute in an oral compromise agreement under which it was agreed that land would be sold at the best price reasonably obtainable. One now argued this was unenforceable as an agreement for the disposal of land requiring . .
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 – Banner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
Cited – Ravenocean Ltd v Garner ChD 19-Jan-2001
The claimant asserted a constructive trust arising from an oral agreement by the defendant to sell his land to the plaintiff. It was conditional on the claimant obtaining planning permission. Pursuant to the agreement, and relying on it, the . .
Cited – Van Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
Cited – Scottish and Newcastle Plc v Lancashire Mortgage Corporation Ltd CA 5-Jul-2007
The parties each had a charge over a property, and now disputed which had priority. The brewery appealed an order for rectification of the registers to reverse priority on the basis of an estoppel. The charge in their favour had been registered . .
Cited – Powell and Another v Benney CA 5-Dec-2007
The claimants asserted an interest under a constructive trust in land held by the defendant.
Held: The judge had found acts of detriment suffered by the claimants. Though elements of the judgment might be criticised, the appeal failed. . .
Cited – Eyestorm Ltd v Hoptonacre Homes Ltd CA 19-Dec-2007
The appellant had agreed to take leases on a development of the defendant, hoping to sell the apartments on at a profit. After difficulties, the appellant refused to complete, and the defendant forfeited the deposits.
Held: Eyestorm’s appeal . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe CA 31-Jul-2006
The defendants orally agreed to sell the claimant a block of flats for andpound;12 million if he first obtained planning permission for it on terms as to a sharing of subsequent development profits. The claimant spent over andpound;100,000 and . .
Cited – Anderson Antiques (UK) Ltd v Anderson Wharf (Hull) Ltd and Another ChD 23-May-2007
anderson_andersonChD2008
The claimants owned land against which they said, the defendant had wrongfully registered notices. They sought removal of the notices, damages, and an injunction to prevent further notices being registered. The first defendant asserted an oral . .
Cited – Brightlingsea Haven Ltd and Another v Morris and others QBD 30-Oct-2008
The caravan park operated under planning consents requiring the caravans to be occupied only during certain months. The defendants had bought their mobile homes from the claimants to occupy full time, and said that the claimants knew of this. The . .
Cited – Sharma and Another v Simposh Ltd CA 23-Nov-2011
The parties created an oral (and therefore void) contract for a development, the claimants paid a deposit, expressed to be non-refundable, and the defendant builders completed the building work. The buyers backed out. The developer now appealed . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Land, Trusts, Estoppel

Leading Case

Updated: 31 October 2021; Ref: scu.90659

Dawes v Hawkins: 6 Jul 1860

A highway had been unlawfully stopped up by the adjoining owner and diverted by another route. It was held that the public had a right to deviate on to the adjoining land. The road was subsequently diverted back to its original route. Some years later, the defendant tried to pull down trees which the plaintiff owner grew on the substituted road.
Held: The plaintiff was entitled to damages to trespass as there was no evidence that the substituted road had been dedicated to the public. A dedication of land as a public highway must be in perpetuity, and cannot be for a term of years. Byles J said: ‘once a highway always a highway, for the public cannot release their right and there is no extinctive presumption or prescription. The only methods of stopping up a highway are either by the old writ of adquam damnum or by proceedings before Magistrates under the statute.’ There was no animus dedicandi

Byles J
(1860) 8 CB (NS) 848, [1860] EngR 968, (1860) 8 CB NS 848, (1860) 144 ER 1399
Commonlii
England and Wales
Cited by:
Cited – Portsmouth City Football Club v Sellar Properties (Portsmouth) Limited, Singer and Friedlander Properties Plc ChD 17-Sep-2003
Various contracts were entered into for the sale of land, with compensation being paid in certain circumstances. One contract required a calculation of consideration as a set figure less a sum to be calculated as the cost of acquiring land. The sum . .
Cited – Smith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
Cited – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
Cited – Barlow v Wigan Metropolitan Borough Council CA 1-Jun-2020
Presumption of dedication dates back.
The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act. . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 31 October 2021; Ref: scu.186481

Walford v Miles: HL 1992

Agreement to Negotiate is Unworkable as a Contract

The buyers and sellers of a company agreed orally for the sellers to deal with the buyers exclusively and to terminate any negotiations between them and any other competing buyer. The sellers later decided not to proceed with their negotiations with the buyers and went on to sell the company to another party. The buyers sued for breach of the oral agreement. The sellers’ defence was that the parties were still in negotiations and the oral agreement was an agreement to negotiate in good faith.
Held: The oral agreement was unenforceable. An agreement to negotiate in good faith was unworkable in practice because while negotiations were in existence, either party was entitled to withdraw from those negotiations at any time and for any reason. Such an agreement was uncertain and had no legal content.
Lord Ackner said: ‘The reason why an agreement to negotiate, like an agreement to agree, is unenforceable is simply because it lacks the necessary certainty. The same does not apply to an agreement to use best endeavours. This uncertainty is demonstrated in the instant case by the provision which it is said has to be implied in the agreement for the determination of the negotiations. How can a court be expected to decide whether, subjectively, a proper reason existed for the termination of negotiations? The answer suggested depends upon whether the negotiations have been determined ‘in good faith’. However, the concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations. Each party to the negotiations is entitled to pursue his (or her) own interest, so long as he avoids making misrepresentations. To advance that interest he must be entitled, if he thinks it appropriate, to threaten to withdraw from further negotiations or to withdraw in fact in the hope that the opposite party may seek to reopen the negotiations by offering him improved terms. Mr Naughton, of course, accepts that the agreement upon which he relies does not contain a duty to complete the negotiations. But that still leaves the vital question: how is a vendor ever to know that he is entitled to withdraw from further negotiations? How is the court to police such an ‘agreement’? A duty to negotiate in good faith is as unworkable in practice as it is inherently inconsistent with the position of a negotiating party. It is here that the uncertainty lies. In my judgment, while negotiations are in existence either party is entitled to withdraw from these negotiations, at any time and for any reason. There can be thus no obligation to continue to negotiate until there is a ‘proper reason’ to withdraw. Accordingly, a bare agreement to negotiate has no legal content.’
As to a lock out agreement, Lord Ackner said: ‘There is clearly no reason in English contract law why A, for good consideration, should not achieve an enforceable agreement whereby B, agrees for a specified period of time, not to negotiate with anyone except A in relation to the sale of his property.’ and ‘B, by agreeing not to negotiate for this fixed period with a third party, locks himself out of such negotiations. He has in no legal sense locked himself into negotiations with A. What A has achieved is an exclusive opportunity, for a fixed period, to try and come to terms with B, an opportunity for which he has, unless he makes his agreement under seal, to give good consideration.’

Lord Ackner
[1992] 2 AC 128, [1992] 1 All ER 453, [1992] 2 WLR 174, [1992] ANZ Conv R 207
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
Cited – Courtney and Fairbairn Limited v Tolaini Brothers (Hotels) Ltd CA 1975
There was an agreement between a site developer and building contractors who introduced a financier to provide money for the development project. The question arose whether the developer had entered into a binding and enforceable contract to employ . .

Cited by:
Cited – Cobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
Cited – Pitt v PHH Asset Management CA 29-Jun-1993
. .
Cited – MRI Trading Ag v Erdenet Mining Corporation Llc CA 8-Mar-2013
The Commercial Court had found the result of an arbitration award ‘obviously wrong’, and ineed bizarre.
Held: The appeal failed. The award was flawed, in failing to take account of the trading context between the parties: ‘The overall . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Leading Case

Updated: 31 October 2021; Ref: scu.223726

Singh and Another v Akhtar: CA 26 Apr 2013

Appeal against order for removal of an access ramp said to interfere with the respondent’s right of way.

Laws, Lewison, Lloyd LJJ
[2013] EWCA Civ 570
Bailii
England and Wales

Land

Updated: 31 October 2021; Ref: scu.510178

Lea and Another, Regina (on The Application of) v Secretary of State for Environment, Food and The Regions and Another: Admn 2 Apr 2013

Appeal from finding that land was a bridleway.

Peling HHJ
[2013] EWHC 1401 (Admin)
Bailii
Wildlife and Countryside Act 1981 53
England and Wales

Land

Updated: 31 October 2021; Ref: scu.510192

Rehman and Another v Jones Lang Lasalle Ltd: QBD 22 May 2013

Belcher HHJ
[2013] EWHC 1339 (QB)
Bailii
England and Wales

Land

Updated: 31 October 2021; Ref: scu.510091

Newbold and Others v The Coal Authority: CA 23 May 2013

Appeal by the Coal Authority against an order declaring that notices of subsidence damage were valid damage notices for the purposes of section 3 of the 1991 Act.
Held: Sir Stanley Burnton said: ‘In all cases, one must first construe the statutory . . requirement in question. It may require strict compliance with a requirement as a condition of its validity . . Against that, on its true construction a statutory requirement may be satisfied by what is referred to as adequate compliance. Finally, it may be that even non-compliance with a requirement is not fatal. In all such cases, it is necessary to consider the words of the statute . . in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties. We assume that Parliament in the case of legislation, and the parties in the case of a contractual requirement, would have intended a sensible, and in the case of a contract, commercial, result.’

Longmore, MacFarlane LJJ, Sir Stanley Burnton
[2013] EWCA Civ 584, [2014] 1 WLR 1288, [2013] RVR 247, [2013] WLR(D) 216
Bailii, WLRD
Coal Mining Subsidence Act 1991 3
England and Wales
Cited by:
Cited – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
Cited – Speechley and Others v Allott and Others CA 10-Mar-2014
The parties disputed the management of a social club. The club owned a bowling green, and bowling members sought to restrain its closure. The appellants now said that the court should not have found at first instance that a meeting had validly . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 October 2021; Ref: scu.510076

Hurhangee v Ramsawhook and Others (Mauritius): PC 4 Oct 2021

[2021] UKPC 25
Bailii
England and Wales

Updated: 31 October 2021; Ref: scu.668429

Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council and Others: CA 20 May 2013

The Fellowship had applied for orders upgrading public rights of way. The council rejected the applications saying that the digital mapping software used to repare the maps submitted were not compliant with the requirements of the legislation. They now appealed against rejection of their appeal.
Held: The appeal succeeded: ‘a map which is produced to a scale of 1:25,000, even if it is digitally derived from an original map with a scale of 1:50,000, satisfies the requirements of paragraph 1(a) of Schedule 14 provided that it is indeed ‘a map’ and that it shows the way or ways to which the application relates.’
Paragraph 1(a) of Schedule 14 requires (1) something that is identifiable as ‘a map’, which (2) is drawn to a scale of not less than 1:25,000, and which (3) shows the way or ways to which the application relates. Since this did not stipulate for an OS map, it was wrong to insist that a map submitted must include the same details, and nor was there any requirement that the original scale be not less than 1:25,000. The Council’s position was one of pedantry.
Maurice Kay LJ concluded: ‘All this leads me to the view that, whilst I am confident that ‘drawn’ was never intended to be construed as being confined to ‘originally drawn’, it should also now be given a meaning which embraces later techniques for the production of maps. For practical purposes, when a computer is used to translate stored data into a printed map, it can properly be said that the computer and the printer are, on human command, ‘drawing’ the map which emerges to the scale which has been selected. I find no difficulty in this approach in circumstances in which the requirements do not prescribe that the submitted map depicts the features which are depicted on an original 1:25,000 OS map.’
Lord Justice Maurice Kay Vice President of the Court of Appeal, Civil Division, Lady Justice Black and Lady Justice Rafferty
[2013] EWCA Civ 553, [2013] PTSR 987, [2013] WLR(D) 186
Bailii, WLRD
Wildlife and Countryside Act 1981
England and Wales
Citing:
Appeal from – Trail Riders’ Fellowship and Another, Regina (on The Application of) v Dorset County Council Admn 2-Oct-2012
The claimants challenged rejection of five applications under section 5 of the 1981 Act for modification orders allowing the upgrade of routes to provide vehicular public rights of way. The applications had been submitted using digital mapping. The . .
Cited – Grant v Southwestern and County Properties Ltd ChD 1974
The court had to decide whether a tape recording fell within the expression ‘document’ in the Rules of the Supreme Court.
Held: The furnishing of information had been treated as one of the main functions of a document, and the tape recording . .
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .

Cited by:
Appeal from – Dallas v The United Kingdom ECHR 11-Feb-2016
Test for contempt was accessible and foreseeable.
The applicant had been convicted of contempt of court in that whilst acting as a juror, and in defiance of an explicit direction from the judge had researched the defendant in the internet, and passed on her findings to other jurors.
Held: the . .
Appeal from – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council SC 18-Mar-2015
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.509983

Environment Agency v Manchester Ship Canal Company Ltd and Another, Regina (on The Application of): CA 16 May 2013

The parties disputed whether lands owned by the respondents should be included within flood zones designated for flood management.
Moses, Rimer, Gloster LJJ
[2013] EWCA Civ 542
Bailii
Environment Act 1995
England and Wales

Updated: 30 October 2021; Ref: scu.509310

Unknown Owner v Shepway District Council: UTLC 22 Apr 2013

UTLC COMPENSATION – Compulsory purchase – unadopted road – untraceable owner – valuation of freehold interest – compensation determined at pounds 1
Rose
[2013] UKUT 190 (LC)
Bailii
England and Wales

Updated: 30 October 2021; Ref: scu.509226

Arnold White Estates Ltd v National Grid Electricity Transmission Plc: UTLC 16 Apr 2013

UTLC COMPENSATION – electricity – wayleave – overhead line across housing development site – contract for sale of corridor of land containing line entered into in advance of grant of wayleave – contract conditional on removal of line – whether contract price could be taken as basis for assessment of loss – held that it could – whether land with line retained had any market value for development – held it did not – compensation pounds 5,829,476 – Electricity Act 1989 Sch 4 para 7
[2013] UKUT 5 (LC)
Bailii
Electricity Act 1989
England and Wales

Updated: 30 October 2021; Ref: scu.509223

Lewicki v Nuneaton and Bedworth Borough Council: UTLC 18 Apr 2013

UTLC COMPENSATION – compulsory purchase – dwelling house – settlements and open market sales as comparables – residual valuations – disturbance – compensation awarded pounds 99,794.45
[2013] UKUT 120 (LC)
Bailii
England and Wales

Updated: 30 October 2021; Ref: scu.509224

Coates v Dartford Borough Council: QBD 8 May 2013

Appeal againt refusal to vary order for possession of land.
Ramsey J
[2013] EWHC 1160 (QB)
Bailii

Updated: 27 October 2021; Ref: scu.509115

Norbrook Laboratories Ltd and Others v Carlisle City Council: Admn 8 May 2013

The Claimants sought an order quashing a Tree Preservation Order
Stadlen J
[2013] EWHC 1113 (Admin)
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.503515

Dame Zoe Turgeon Since Deceased (Now Represented By Raoul Richard and Others) v The City of Quebec: PC 19 Jan 1928

(Quebec)
[1928] UKPC 3
Bailii
Canada

Updated: 27 October 2021; Ref: scu.469666

The Attorney-General v Gauntlett: 1829

In pleading a right of common by prescription, the defendant must show a seisin in fee of the land in respect of which he claims, and prescribe in the que estate for the right. Where a defendant justified under a right of common of pasture, by showing a demise from a freeholder for life of the land in respect of which he claimed, and averred that he, the defendant, and all those whose estate he then had, and his landlord from time and so on, had common pasture in respect of the demised premises.
Held: upon demurrer that the plea was bad. The statute for the better cultivation of navy timber in the forest of Woolmer in the county of Southampton which enacts ‘for the regulating and securing to the several persons now having right of common of pasture in and over the said forest, the power of cutting peat and turves within such parts of the said forest as shall not be inclosed by virtue of this act, that, after the inclosure shall be made and completed, it shall be lawful for all persons having right of common in the said forest, to cut and take peat and turves, in any part of the said forest not inclosed under this act, without payment of any fee or sum of money to any keeper or other person having the care or superintendence of the said Forest for taking the same,’ merely regulates the previous existing rights, but confers no new right, and authorises those only who before had the right of estevers and common of pasture to cut without payment of fees for the necessity of the dwellinghouse, in respect of which the original right existed.
[1829] EngR 205, (1829) 3 Y and J 93, (1829) 148 ER 1107
Commonlii
England and Wales

Updated: 27 October 2021; Ref: scu.322073

In The Matter Of Bunbury’s Settled Estates: 14 Jan 1865

[1865] EngR 107, (1864-1865) 4 De G J and S 573, (1865) 46 ER 1041
Commonlii
England and Wales

Updated: 27 October 2021; Ref: scu.281019

Oak Co-Operative Building Society v Blackburn: CA 14 Feb 1968

Harman, Russell, Sachs LJJ
[1968] EWCA Civ 6, [1968] 2 All ER 117, [1968] 2 WLR 1053, (1968) 19 P and CR 375, [1968] Ch 730
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.262779

Dodson v Environment Agency: QBD 28 Feb 2013

The claimant asserted that the steps taken by the defendant to encourage wildlife in the estuary had led to otters predating his fish farm stocks, and that the claimant had not been informed of this, in particular as to the construction of otter holts, so as to allow him to take steps to protect his stock.
Held: The claim was dismissed: ‘the construction of the otter holts on the River Cegin did not impose on the defendant any duty of care at common law to advise the claimant in respect of otter predation and the protection of his own economic and proprietary interests.’
His Honour Judge Keyser QC sitting as a Judge of the High Court
[2013] EWHC 396 (QB)
Bailii
Environment Act 1995 13
England and Wales
Citing:
Cited – Geddis v Proprietors of Bann Reservoir HL 18-Feb-1878
The owner of land injured by operations authorised by statute ‘suffers a private loss for the public benefit’, and in the absence of clear statutory authority is unable to claim: ‘It is now thoroughly well established that no action will lie for . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Stovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
Cited – Gorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.519760

Smith (Kathleen Rose) v East Elloe Rural District Council: HL 26 Mar 1956

The plaintiff challenged a compulsory purchase order as unlawful and made in bad faith and sought damages for trespass. Paragraph 16 provided that an order could not be challenged by legal proceedings, save in the circumstances identified in paragraph 15, which did not apply. The plaintiff said this could not apply where the order was made in bad faith.
Held: An order would not bear any bad faith on its face, and so any bad faith could only be discovered by proceedings. The words of paragraph 16 were explicit and clear and effective. The order could not be impugned. It fell outside the ouster of jurisdiction provision. The regulations provided that any application be made to the High Court within six weeks of notice of the confirmation or making of the Compulsory Purchase Order and that otherwise the Compulsory Purchase Order should not be questioned in any legal proceedings.
Held: (Majority) A challenge of this kind had to be made in accordance with the statutory procedure for challenge and, if not made in accordance with that procedure, could not otherwise be made.
Viscount Simons said: ‘I find it quite impossible to qualify the words of the paragraph in the manner suggested. It may be that the legislature had not in mind the possibility of an Order being made by a local authority in bad faith or even the possibility of an Order being made in good faith being mistakenly, capriciously or wantonly challenged. This is a matter for speculation. What is abundantly clear is that words are used which are wide enough to cover any kind of challenge which any aggrieved person may think fit to make. I cannot think of any wider words. Any addition would be mere tautology’.
Lord Radcliffe said: ‘An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.’
Lord Radcliffe, Lord Hailsham of Saint Marylebone LC, Viscount Simons
[1956] AC 736, [1956] 1 All ER 855, [1956] UKHL 2
Bailii
Acquisition of Land (Authorisation Procedure) Act 1946
England and Wales
Cited by:
Cited – Bugg v Director of Public Prosecutions; Director of Public Prosecutions v Percy QBD 1993
The defendants appealed against convictions for having entered military bases contrary to various bye-laws. They challenged the validity of the bye-laws.
Held: The validity of a bye-law could be challenged in criminal proceedings, but where . .
Cited – Birmingham City Council v Qasim and Others CA 20-Oct-2009
The council argued that the defendant was not a tenant granted to him as a secure tenancy since he had not been granted the tenancy in accordance with its policies. An employee had manipulated the Council’s system to grant tenancies to bypass the . .
Cited – Mackaill and Another, Regina (on The Application of) v Independent Police Complaints Commission Admn 6-Oct-2014
The three claimants were police officers. They met a senior MP at Sutton Coldfield. They emerged from the meeting and were said to have made misleading statements as to the content of the meeting. The IPCC referred the matters back to local forces . .
Cited – Regina v The Secretary of State for the Environment, ex Parte Ostler CA 16-Mar-1976
Statutory Challenge must be timely
The applicant had not taken objection to a proposed road scheme believing wrongly that it would not affect his business. Other objectors had withdrawn because of secret re-assurances given to them by the respondent.
Held: The court was asked, . .
Unsatisfactory – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.187074

Roberts v Swangrove Estates Ltd and Another: ChD 14 Mar 2007

The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by adverse possession notwithstanding the existence of the public right of navigation. The court made findings as to the several plots of land. Lindsay J said: ‘factual possession signifies an appropriate degree of physical control having the following characteristics, namely that it must be a single and exclusive possession (though there can be a single possession exercised by or on behalf of several persons jointly); that if the squatter is in possession the paper owner cannot be; that what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances including, in particular, the nature of the land and the manner in which land of that nature is commonly used or enjoyed; that what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so and that factual possession must be sufficiently clear that, if the owner were present on the land, he would appreciate that the squatter was dispossessing him.’
Lindsay J
[2007] EWHC 513 (Ch), [2008] 2 WLR 1111, [2007] 2 PandCR 17
Bailii
Limitation Act 1980 15(1)
England and Wales
Citing:
Cited – Des Barres and Another v Shey 1873
The defendants resisted a claim for possession asserting adverse possession from 1815 or 1832. This included possession during periods over which they had granted tenancies or licences but where the tenants or licensees had been in occupation . .
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – Michael Batt Charitable Trust v Adams ChD 2001
The court looked at what was required to establish adverse possession in a claim for land. Laddie J said: ‘The only factor that appears, at first sight, to point in the direction to exclude anyone, is the fact that Mr Higgs maintained and repaired . .
Cited – Powell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘In the absence of evidence to the . .
Cited – Sze To Chun Keung v Kung Kwok Wai David and Lam Chak Man Estate Limited PC 27-Jun-1997
(Hong Kong) The respondents were registered owners of land occupied by the appellant who claim title by adverse possession after entry in 1955. Subsequently the claim resided with the Crown.
Held: ‘on the facts as pleaded, the land has been . .
Cited – Buckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
Cited – Lord Advocate v Lord Lovat 1880
Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in . .
Cited – Powell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘In the absence of evidence to the . .
Cited – Rains v Buxton 1880
rains_buxtonChD1880
Fry J said: ‘The difference between dispossession and the discontinuance of possession might be expressed in this way: the one is where a person comes in and drives out the others from possession, the other case is where the person in possession . .
Cited – Lord Advocate v Young 1887
Lord Watson said: ‘It is, in my opinion, practically impossible to lay down any precise rule in regard to the character and amount of possession necessary in order to give a riparian proprietor a prescriptive right to foreshore. Each case must . .
Cited – Attorney General v Emerson 1891
Forms of fishing which involve fixtures into the soil of the foreshore are more likely to be regarded as acts of possession of the soil itself than would be more ephemeral forms of fishing. . .
Cited – Nesbitt v Mablethorpe Urban District Council 1918
Where a squatter lets a tenant of his into possession the consequent acceptance of rent by the squatter is to be taken as evidence of possession by the squatter; . .
Cited – Hughes v Cook and Another CA 14-Feb-1994
Adverse possession will accrue even if the claimant believed and acted on the mistaken belief that the land was already his. That belief was inconsistent with ownership by others. Beldam LJ said that counsel’s argument was fallacious: ‘. . in the . .
Cited – Red House Farms (Thorndon) Ltd v Catchpole CA 1977
Cairns LJ said: ‘The authorities make it clear that what constitutes possession of any particular piece of land must depend upon the nature of the land and what it is capable of use for: see, for example, Tecbild Ltd v Chamberlain (1969) 20 P and CR . .
Cited – Jones v Williams ExcC 1837
A four-judge of the Court was asked as to the admissibility of evidence in a case as to trespass upon the bed of a river where title was uncertain and where the dispute was whether the claimant or defendant owned the very part of land upon which the . .
Cited – Lord Advocate v Lord Blantyre HL 1879
The defender claimed ownership of land based on possession from time immemorial of foreshore and banks in the River Clyde of some 5 miles and 2 miles respectively in length and spread over some 750 acres.
Held: Lord Blackburn said: ‘Every act . .
Cited – Higgs v Nassauvian Ltd PC 1975
A claim was made for possession of two plots of land, one some 92 and the other some 12 acres. The land was part arable, part pine barren and not fenced or otherwise enclosed.
Held: Sir Harry Gibbs said: ‘It is clearly settled that acts of . .
Cited – Friend v Duke of Richmond 1667
Two subjects brought action for ejectment. The defendant took the point that the claimant could not sue in ejectment. It was necessary to allege entry by a tenant. There could not be an entry, as the Crown had already obtained a judgment based on an . .
Cited – Attorney-General v Tomline (No 3) ChD 1877
For more than 20 years the Crown had been in possession of land forming part of a manor in Suffolk owned in fee simple by Colonel Tomline, who then entered the land in order to dig out mineral material (coprolites-fossilised dinosaur dung). The . .
Cited – Attorney-General v Tomline (No 3) CA 1880
The Crown claimed land by adverse possession. It had continued in possession for many years after a licence had expired.
Held: The Crown had acquired a fee simple by adverse possession, and not simply a copyhold title. James LJ: ‘From the time . .
Cited – Hughes v Griffin and Another CA 1969
Possession of land is never adverse if it can be referred to a lawful title. . .
Cited – BP Properties Ltd v Buckler CA 31-Jul-1987
The putative owner of the paper title wrote to the defendant who occupied the relevant property in October 1974 as follows: ‘Since we wish to help you as much as possible we are prepared to allow you to remain in occupation of the house and garden . .
Cited – St Marylebone Property Co Ltd v Fairweather HL 16-Apr-1962
To defeat a defence of adverse possession, the plaintiff must succeed in an action which itself had been commenced within the twelve year period. A squatter does not succeed to the title that he has disturbed: by sufficiently long adverse possession . .
Cited – Rosenberg v Cook 1881
A squatter’s title is a freehold from day one of his possession. . .
Cited – Agency Co Ltd v Short 1888
Where there has been insufficient adverse possession, it ‘does not leave behind it any cloud on the title of the rightful owner.’ . .
Cited – Stening v Abrahams ChD 1931
The landlord complained that the tenant was in breach of his covenant not to part with possession of any part of the premises where the tenant had so organised things that he had effectively excluded himself from part of the demised premises.
Cited – Tobin v The Queen 1864
The Commander of a Queen’s ship, employed in the suppression of the slave trade on the coast of Africa, seized a schooner belonging to the suppliant, which he suspected of being engaged in slave traffic. It being inconvenient to take the ship to . .
Cited – Feather v The Queen 1865
Mr Feather had invented way of protecting ships against shot and obtained an exclusive patent. The Crown then had a ship constructed in a way that infringed the patent. As patentee Mr Feather asked for recompense; by petition of right he asked for . .
Cited – Fowley Marine (Emsworth) Ltd v Gafford 1968
A paper title owner of land is deemed to be in possession of the fee simple unless and until someone else acquires possession of it . .
Cited – M v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .

Cited by:
Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Cited – Barton v The Church Commissioners for England ChD 15-Dec-2008
The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to . .
Cited – The Port of London Authority v Ashmore CA 4-Feb-2010
The Port sought to register ownership of the river bed and tidal foreshore. The defendant’s boat had been moored at a wharf, and he claimed adverse possession. The court was asked whether it was possible to acquire any title by adverse possession to . .
Cited – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.250606

Wynne-Finch and Others v Natural Resources Body for Wales: CA 12 Oct 2021

Ownership and exploitation of Welsh mudstone, which is the prevailing bedrock in large areas of mid-Wales.
Lord Justice Henderson
[2021] EWCA Civ 1473
Bailii
England and Wales

Updated: 26 October 2021; Ref: scu.668440

Mahandru v Nielson: QBD 9 Jul 2021

[2021] EWHC 2297 (QB)
Bailii
England and Wales

Updated: 26 October 2021; Ref: scu.667788

Devine and Laverty v Welsh Ministers: Admn 27 Jan 2011

Beatson J
[2011] EWHC 358 (Admin)
Bailii
Wildlife and Countryside Act 1981 53
England and Wales

Updated: 26 October 2021; Ref: scu.430370

NI v Redcar and Cleveland Council: UTLC 25 May 2011

UTLC COMPENSATION – compulsory purchase – dwelling house in poor repair – valuation of freehold interest – disturbance – other issues outside Tribunal’s jurisdiction – Land Compensation Act 1961 section 5, rules (2) and (6) – compensation pounds 5,000.
[2011] UKUT 210 (LC)
Bailii
Land Compensation Act 1961 5
England and Wales

Updated: 25 October 2021; Ref: scu.440787

Cotham School, Regina (on The Application of) v Bristol City Council: Admn 3 May 2018

Sir Wyn Williams
[2018] EWHC 1022 (Admin)
Bailii
Commons Act 2006 15
England and Wales

Updated: 23 October 2021; Ref: scu.614974

Lord Northwick v Stanway: 11 Feb 1803

[1803] EngR 496, (1803) 3 Bos and Pul 346, (1803) 127 ER 189
Commonlii
England and Wales

Updated: 23 October 2021; Ref: scu.344537

Lagden v Flack: 16 Jul 1819

Vicar’s claim for tithes of tares, clover, and wood.
[1819] EngR 580, (1819) 2 Hag Con 303, (1819) 161 ER 751
Commonlii
England and Wales

Updated: 23 October 2021; Ref: scu.331783

Red River UK Ltd v Sheikh and Another: CA 15 Dec 2008

Rimer LJ
[2008] EWCA Civ 1592
Bailii
England and Wales
Citing:
See also – Red River UK Ltd and Another v Sheikh and Another ChD 15-Nov-2007
Applications for an order requiring actions to give effect to earlier judgments . .
See also – Red River UK Ltd and Another v Sheikh and Another ChD 25-Apr-2008
. .
See also – Red River and Another v Sheikh and Another ChD 21-May-2008
. .

Cited by:
See Also – Red River (UK) Ltd and Another v Sheikh and Another ChD 9-Mar-2009
. .
See Also – Red River (UK) Ltd and Another v Sheikh and Another CA 28-Apr-2009
The parties had compromised their litigation reaching a settlement, but had not adequately informed the court. The one remaining issue had been conceded.
Held: The appeal against the costs award failed. The court should have been forewarned of . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.291918

The Mersey Docks And Harbour Board v Penhallow And Others: CEC 18 Jun 1861

Trustees incorporated by statute for the purpose of constructing a dock, and who receive rates and have funds which they are bound to apply in maintaining and cleansing the dock, so that it may be in a fit state for vessels to enter, are liable for injury to a vessel caused by an accumulation of mud in the dock, of which by their servants they had the means of knowing, and were negligently ignorant.
[1861] EngR 734, (1861) 7 H and N 329, (1861) 158 ER 500
Commonlii
England and Wales

Updated: 23 October 2021; Ref: scu.284495

Ashbrook v East Sussex County Council: Admn 27 Mar 2002

Obstruction of public footpath – application for diversion
Mr Justice Grigson
[2002] EWHC 481 (Admin)
Bailii
Highways Act 1980 130(1)
England and Wales

Updated: 23 October 2021; Ref: scu.168745

Den, Lessee of Taylor, v The Earl of Abingdon: 21 Nov 1780

[1780] EngR 100, (1780) 2 Doug 473, (1780) 99 ER 302 (B)
Commonlii
England and Wales

Updated: 22 October 2021; Ref: scu.372824

Parris v Williams: CA 23 Oct 2008

The parties had been business partners, but the business failed, and Mr Williams was made bankrupt. Mr Parris was offered a chance to purchase two apartments, and did so in his own name. Mr Williams asserted an interest, saying that it had been a joint venture, and that there was a common intention constructive trust.
Held: The appeal was dimissed.
Moore-Bick LJ, Rimer LJ
[2008] EWCA Civ 1147, [2009] BPIR 96, [2008] NPC 111, [2008] 43 EG 194, [2009] 1 P and CR 9
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 – Eves v Eves CA 28-Apr-1975
The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired . .
Cited – Midland Bank Plc v Dobson CA 12-Jul-1985
The trial judge had been entitled to find a common intention constructive trust from evidence which he accepted that the parties treated the house as ‘our house’ and had a ‘principle of sharing everything’. Although the judge should approach such . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Crossley v Crossley CA 19-Dec-2007
The parties had entered into a pre-nuptial agreement. On the ancillary relief proceedings on divorce, the husband sought to have the agreement taken into account by the court. It decided that the wife should give reasons why she considered that the . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.277145

Ex Parte The Governors Of Christ’s Hospital: 10 Dec 1864

[1864] EngR 852, (1864) 2 H and M 166, (1864) 71 ER 425
Commonlii
England and Wales
Cited by:
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.282566

Gomba Holdings v Homan: 1986

A receiver’s powers of management are really ancillary to the duty to manage the security, the property of the mortgagee, for the benefit of the mortgagee. In the context of the agency of a receiver which is no ordinary agency but primarily a device to protect the mortgagee, the general agency principles are of limited assistance in identifying the duties owed by the receiver to the mortgagor.
Hoffmann J
[1986] 1 WLR 1301
England and Wales
Cited by:
Cited – Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.187043

Shepherd Homes Ltd v Enica Remediation Ltd and Another: TCC 26 Jan 2007

[2007] EWHC 70 (TCC)
Bailii
England and Wales

Updated: 22 October 2021; Ref: scu.248258

Goodchild v Branbury and others: CA 15 Dec 2006

Application was made to set aside transfers of land for undue influence, and that the second transfere was aware of the deficiency in the first.
Held: The appeal suceeded, and the transfers were set aside. Chadwick LJ said: ‘A gift which is made without informed consideration by a person vulnerable to influence, and which he could not have been expected to make if he had been acting in accordance with the ordinary motives which lead men’s actions, needs to be justified on the basis that the donor knew and understood what he was doing. In this case, that requirement was not met.’
Chadwick LJ
[2006] EWCA Civ 1868
Bailii
England and Wales
Citing:
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Cited – Inche Noriah v Shaik Allie Bin Omar PC 1928
Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough . .
Cited – Jennings and Another v Cairns CA 18-Nov-2003
Nieces had fallen out over their aunt’s estate. One niece had been closer than the others, and despite not properly understanding what she was doing the deceased had made lifetime gifts to the niece who was now executor. She appealed a finding of . .
Cited – Hammond v Osborn and Another CA 27-Jun-2002
Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.249100

Case XXXII 26 H 8, 3, Four Times Adjudged, Gavelkind, Rent: 1220

Rent is grantecl out of gavelkind land to A. in fee; the rent follows the nature of the land, and shall be shared among male heirs.
[1220] EngR 357, (1220-1623) Jenk 205, (1220) 145 ER 138 (E)
Commonlii
England and Wales

Updated: 20 October 2021; Ref: scu.461269

The Six Carpenters’ Case: 1610

Resolved – 1. When an entry, authority, or licence, is given to any one by the law, and he abuses it, he shall be a trespasser ab initio: but not where the entry, authority, or licence, is given by the party. 2. An act of omission cannot make a party a trespasser ab initio.
Note. * Tender upon the land before the distress, makes the distress tortious ; tender after the distress, and before the impounding, makes the detainer and not the taking wrongful ; tender after the impounding, makes neither the one nor the other wrongful.*
* If the plaintiff makes a sufficient tender after the avowant has return irreplevisable, he may have an action of detinue for the detainer after; or he may, upon satisfaction made in Court, have a writ for the re-delivery of the goods.
[1572] EngR 452, (1572-1616) 8 Co Rep 146, (1572) 77 ER 695
Commonlii
England and Wales
Cited by:
Cited – Eastenders Cash and Carry Plc and Others, Regina (on The Application of) v Revenue and Customs SC 11-Jun-2014
Alcoholic drinks had been seized by the respondents pending further enquiries with a view to a possible forfeiture, then held and returned but only under court order. The company had complained that the detention of the goods was unlawful. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.432418

Case LXIII 1 El Dyer, 169 Patents, Forest Palm 88 2 Buls 290: 1220

The King grants the forest of Waybridge and Sapely in the county of Huntingdon to A for 60 years ; A covenants with the King to maintain 100 deer there during the said term, and at the end thereof to leave the forest so stocked to the King ; the King grants the fee of the forest to B. B. during the term, cannot kill nor give a warrant for any deer there.
[1220] EngR 12, (1220-1623) Jenk 218, (1220) 145 ER 149 (B)
Commonlii
England and Wales

Updated: 20 October 2021; Ref: scu.460924

Case LXII 1 El Dyer, 166, 324, 96, 314, 323 11 H 4, 52 15 H 7, 11 Perkins, 108, 408 19 H 8, 11 33 H 8 Br Cases Hob 349, Earl of Ormond’s Case 2 Leon 139 Moor 515 4 Leon 166, 210 Dyer, 324, 325: 1220

A. seised of diverse manors in fee, before the statute of 27 H. 8 of Uses, makes a feoffment in fee of those manors to B to the use of his last will ; and afterwards by indenture declares that his intent was that B. should pay his debts, and afterwards conveys those manors to A and his wife in tail, the remainder to A in fee ; A died before the statute of uses. Resolved by all the judges of England, that no use rested in A and his wife, until an estate-tail be made to them ; and ttiat this indenture does not amount to a declaration of the last will of A. (which can only take effect by his death) for the gift in tail to him and his wife, is to take effect in his lifetime ; which cannot be, if it be taken for a will : and also the wife is a stranger to the land.
[1220] EngR 11, (1220-1623) Jenk 217, (1220) 145 ER 149 (A)
Commonlii
England and Wales

Updated: 20 October 2021; Ref: scu.460923