Category: Land

Case XXXIV 1 E 4, 9 2 E 4, 28 Dyer, 336 Traverse, Confession And Avoidance: 1220

Where seisin is materially alledged in real action, in a bar, replication or title ; it ought to be traversed and the confession and avoidarice of joint seisin and survivorship will not serve : for the allegation of seisin is positive, and is to be understood sole seisin. But where the seisin is alledged by way of supposition, as in a writ of ayel or mortdancestor, where the dying seised of the ancestor is alledged by the words and quod cum in the count ; there a confession and avoidance will serve, for the reasoti aforesaid. And so if in the writ of ayel the seisin is alledged in the ayel ut dicitur. In mortdancestor the writ is for the jury to enquire whether the ancestor of the demandant died seised.
[1220] EngR 8, (1220-1623) Jenk 117, (1220) 145 ER 82 (E)
Commonlii
England and Wales

Updated: 20 October 2021; Ref: scu.460920

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

Bibby and others v Sumintra Partap and others: PC 20 May 1996

(Trinidad and Tobago) The Court of Appeal of Trinidad and Tobago had the power to suspend a possession order against a trespasser pending the outcome of an appeal.
[1996] UKPC 13, [1996] 1 WLR 931
Bailii
England and Wales
Citing:
Applied – Leiba v Brizan 25-Oct-1991
(Trinidad and Tobago) Pending an appeal the Court of Appeal has jurisdiction to stay execution of a possession order made by the magistrate. . .

Cited by:
Cited – Boyland and Son Ltd v Rand CA 20-Dec-2006
The defendant travellers occupied land belonging to the claimants. A possession order had been obtained, and the defendants now sought a reasonable time to be allowed to leave.
Held: The law had not changed, and section 89 could not be used to . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.159166

Pomfret v Ricroft: 1845

it is not an objection to qualification as an easement that the right consists of or involves the use of a pump on the servient tenement
[1845] EngR 185, (1845) 1 Wms Saund 321, (1845) 85 ER 454
Commonlii
England and Wales
Cited by:
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.303327

Drury v Kent: 1603

‘he could not grant it over, for he hath it quasi sub modo viz. for the beasts levant and couchant; . . but common appurtenant for beasts certain may be granted over.’
(1603) Cro Jac 14
England and Wales
Cited by:
Cited – White v Taylor (No 2) ChD 1969
The alienation of grazing rights for a fixed number of beasts cannot prejudice the residual interest of the owner of the servient common. Whoever the grazing right belongs to, the number of beasts that can be grazed upon the common pursuant to the . .
Cited – Bettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .

Lists of cited by and citing cases may be incomplete.
Updated: 19 October 2021; Ref: scu.191141

Wilcox v Tait: CA 13 Dec 2006

The court considered the principles of equitable accounting as between co-owners of land.
Held: The question of whether there is a liability to account depends on the intention of the parties. Jonathan Parker LJ said: ‘Moreover, it is in any event risky in my judgment to attempt to formulate general principles to be applied in carrying out an equitable accounting exercise in any given case, if for no other reason than that, as the judge put it in the instant case, equitable accounting, is ‘fact sensitive’. What can at least be said is that an exercise of equitable accounting is not to be confused with an enquiry as to the extent of the parties’ respective beneficial interests in the property in question. Questions of equitable accounting only arise once the extent of the parties’ beneficial interests has been determined, since the requirement to account (where it exists) is a reflection of and derives from those beneficial interests.
As to the period to which equitable accounting should relate, in a case such as the instant case where the property has been used as a home for both parties but the relationship between the parties has come to an end (what was described in argument as a cohabitation case), the judge was in my judgment right to conclude that that depends upon the intentions of the parties as to how the relevant expenditure should be borne as between them.’
Auld, Jonathan Parker LLJ
[2006] EWCA Civ 1867, [2007] 2 FLR 871
Bailii
England and Wales
Citing:
Cited – Clarke v Harlowe ChD 12-Aug-2005
A house was bought in the joint names of the parties. It was in bad condition. An express declaration of trust said they held as beneficial joint tenants. One tenants was earning much more than the other. He paid all the mortgage instalments. Very . .

Cited by:
Cited – Ketteringham and Another v Hardy ChD 3-Feb-2011
Two partners had together bought several properties for development, and now disputed the interests in one of them. One partneer had dies, and the refusal of development permission and the fall in property values left the land in negative equity. . .

Lists of cited by and citing cases may be incomplete.
Updated: 19 October 2021; Ref: scu.249123

Scott v Martin: 1987

When construing a land contract, the parties should not readily be assumed to have intended to act in breach of planning requirements
[1987] 1 WLR 841
Cited by:
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 . .
Cited – Stafford and Another v Lee and Another CA 10-Nov-1992
The plaintiff had built houses on his land and sought an easement of necessity over the neighbour’s drive for access for the houses under the rule in Pwllbach Colliery, saying an intended easement had been granted because it was known to the parties . .
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: . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 October 2021; Ref: scu.197730

St Anne’s Well Brewery Co v Roberts: CA 2 Jan 1928

Scrutton LJ said: ‘Under those circumstances it appears to me that the cardinal thing which would have to be proved to establish any liability against anybody would be, namely, knowledge of the defect which ultimately resulted in the fall of the wall and (or) failure to acquire that knowledge because you had failed to use reasonable care to ascertain what you should have ascertained.’ and ‘One of the most normal uses of land, it appears to me, is to put buildings on it.’
Scrutton LJ
(1928) 140 LT 1
England and Wales
Citing:
Appeal from – St Anne’s Well Brewery Co v Roberts 1928
. .

Cited by:
Cited – Coope and Others v Ward and Another CA 28-Jan-2015
The court was asked: ‘ (i) whether the Appellants, owed to the Respondents a ‘measured duty of care’ which, in certain circumstances, may arise as between adjoining landowners in respect of a hazard arising on their land without their fault; (ii) . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 October 2021; Ref: scu.542057

Wheat v E Lacon and Co Ltd: HL 1966

The Appellant’s husband, fell while going down the back stairs of a public house called ‘The Golfer’s Arm’ at Great Yarmouth. He was found lying on the floor of the vestibule at the bottom of the stairs and died later. She appealed against rejection of her claim and appeal.
Held: The word ‘occupier’ has a different meaning according to the subject matter in which it is employed. Lord Pearson used the phrase ‘control associated with and arising from presence in and use of activity in the premises.
There can be more than one occupier of the same premises for the purpose of the 1957 Act.
Lord Denning defined an occupier for the purposes of the Act by examples the second of which was:- ‘Secondly, where an owner let floors or flats in a building to tenants, but did not demise the common staircase or roof or some other parts, he was regarded as having retained control of all parts not demised by him. Accordingly he was held to be under a duty in respect of those retained parts to all persons coming lawfully on to the premises… But the old cases still apply so as to show that the Landlord is responsible for all parts not demised by him, on the ground that he is regarded as being sufficiently in control of them to impose on him a duty of care to all persons coming lawfully on to the premises.’ and ‘the structure was reasonably safe including the handrail and that the system of lighting was efficient, but I doubt whether they were bound to see that the lights were properly switched on or the rugs laid safely on the floor.’
Viscount Dilhorne, Lord Denning, Lord Morris of Borth-y-Gest, Lord Pearce, Lord Pearson
[1966] AC 552, [1966] UKHL 1, [1965] 3 WLR 142
Bailii
Occupiers Liability Act 1957, Law Reform (Miscellaneous Provisions) Act 1934
England and Wales
Cited by:
Cited – Harris v Birkenhead Corporation CA 12-Nov-1975
A four year old child had fallen from a second-story window in a derelict house owned by the defendant, and suffered serious injury. The house and others had been purchased by compulsion for intended clearance. The Corporation appealed against a . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.242622

Inglorest Investments Ltd v Robert Campbell and Another: CA 2 Apr 2004

The appellants appealed an order that property be part of the estate of the deceased. There had been an agreement to assign the reversion of the lease to the claimant. That was not completed, but he later acquired the freehold reversion. No written agreement existed, and the claimant asserted a right based upon part performance.
Held: The claimant sought to assert both that it the freehold was held on trust for it and that there was a contract. He could not plead both. There was neither an enforceable contract for the sale of the freehold to Inglorest nor a resulting trust in its favour.
Lord Justice Mummery Sir Martin Nourse Lord Justice Kay
[2004] EWCA Civ 408
Bailii
England and Wales
Citing:
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 – Davis v Whitby CA 1974
The court discussed the need for some system of acquisition of right by user.
Lord Denning MR said: ‘the long user as of right should by our law be given a lawful origin if that can be done.’
Stamp LJ said: ‘if long enjoyment of a right . .
Cited – Joyce v Joyce 2-Jan-1978
A claim was made for specific performance of an oral agreement to sell shares.
Held: The plaintiff had failed to show that if he issued another writ for the same relief, it would be not be defeated by the doctrine of laches. Payment of the . .
Cited – Joyce v Barker Bros (Builders) Ltd 1980
The rule that where in a deed there are two contradictory provisions, the earlier provision prevails over the later is ‘an absolutely last resort in construction’. . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.195094

Harris v Birkenhead Corporation: CA 12 Nov 1975

A four year old child had fallen from a second-story window in a derelict house owned by the defendant, and suffered serious injury. The house and others had been purchased by compulsion for intended clearance. The Corporation appealed against a finding of liability.
Held: Appeal and cross-appeals dismissed. For the purposes of the Act, the Corporation, having the immediate right of control of the property, became its occupier as soon as a tenant had left. An occupier has a duty to protect infants from a danger of trespassing. The Council knew the property was empty. They had control of it and they had done nothing about providing any such protection.
Megaw, Lawton, Ormrod LJJ
[1976] 1 All ER 341, [1975] EWCA Civ 10, [1975] 1 WLR 379
Bailii
Housing Act 1957
England and Wales
Citing:
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 – Wheat v E Lacon and Co Ltd HL 1966
The Appellant’s husband, fell while going down the back stairs of a public house called ‘The Golfer’s Arm’ at Great Yarmouth. He was found lying on the floor of the vestibule at the bottom of the stairs and died later. She appealed against rejection . .

Cited by:
Distinguished – Bushell and Others, Regina (on the Application Of) v Newcastle Licensing Justices and others CA 25-Jun-2004
The applicant sought special removal of a justices on-licence from former premises to its new premises.
Held: The special removal procedure was limited to circumstances of urgency. The applicant had to show that the circumstances fell within . .
Cited – Rose v Plenty CA 7-Jul-1975
Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
Held: The milkman had not gone so far outside the activities for which he was employed for the . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.189963

Foley v The County Council of The City and County of Cardiff: Admn 7 Aug 2020

The claimant challenge the making by the council of a compulsory purchase order of a dwelling owned by him. It is an end of terrace two storey property in a popular location about one mile from the city centre and close to local amenities, but has stood empty since 1994.
[2020] EWHC 2182 (Admin)
Bailii
Acquisition of Land Act 1981
England and Wales

Updated: 16 October 2021; Ref: scu.653051

Wilson and Another v Yorkshire Dales National Park Authority: Admn 19 Jun 2009

The claimants, who promoted responsible motorsports challenged the defendant’s Traffic Regulation Order banning vehicular traffic on certain unsealed roads in the Dales, saying that there was nothing to show that the relevant committee had taken into account the necessary balancing exercise.
Held: The duty to secure the expeditious, convenient and safe movement of vehicular traffic is that prescribed by section 122(1). However that duty takes effect so far as practicable in the light of the matters to be taken into account under section 122(b). In this case the absence if reference to the balancing exercise under section 122 was consistent. The Order was quashed.
[2009] EWHC 1425 (Admin)
Bailii
Road Traffic Regulation Act 1984 22B92), National Parks and Access to the Countryside Act 1949, National Park Authorities’ Traffic Orders (Procedure) (England) Regulations 2007, Wildlife and Countryside Act 1981, Environment Act 1995, Natural Environment and Rural Communities Act 2006
England and Wales
Citing:
Cited – LPC Group Plc, Regina (on the Application Of) v Leicester City Council Admn 18-Oct-2002
Challenge to parking scheme.
Held: As to section 122 of the 1984 Act, if the Defendant has not had proper regard to the matters set out in section 122(1) and (2) it did not direct its mind to matters it was bound to consider.
Section . .
Cited – UK Waste Management Ltd v West Lancashire District Council; St Helens Metropolitan Borough Council v Same QBD 5-Apr-1996
It was not a proper purpose of an experimental traffic scheme to seek to ban heavy goods vehicles. The council used traffic calming measures to seek to dissuade heavy goods vehicles using certain roads to get to a waste management site.
Updated: 15 October 2021; Ref: scu.347118

Director of Buildings and Land v Shun Fung Ironworks Limited: PC 1995

The House considered a claim for compensation in the form of loss of profits.
Held: The loss of profits in the shadow period, being the period after the possibility that the claimant’s site might be resumed became known and which had a paralyzing effect on its operations, were awarded.
Lord Nicholls held that such losses might be recovered if they satisfy three conditions, namely, that the losses were causally connected with the resumption; that they were not too remote; and that they were not losses which a reasonable person would have avoided.
Lord Nicholls said: ‘The purpose of these provisions, in Hong Kong and England, is to provide fair compensation for a claimant whose land has been compulsorily taken from him. This is sometimes described as the principle of equivalence. No allowance is to be made because the resumption or acquisition was compulsory; and land is to be valued at the price it might be expected to realise if sold by a willing seller, not an unwilling seller. But subject to these qualifications, a claimant is entitled to be compensated fairly and fully for his loss. Conversely, and built into the concept of fair compensation, is the corollary that a claimant is not entitled to receive more than fair compensation: a person is entitled to compensation for losses fairly attributable to the taking of his land, but not to any greater amount. It is ultimately by this touchstone, with its two facets, that all claims for compensation succeed or fail.’
‘The law expects those who claim compensation to behave reasonably. If a reasonable person in the position of the claimant would have taken steps to reduce the loss, and the claimant failed to do so, he cannot fairly expect to be compensated for the loss or the unreasonable part of it. Likewise if a reasonable person in the position of the claimant would not have incurred, or would not incur, the expenditure being claimed, fairness does not require that the authority should be responsible for such expenditure.’
Lord Nicholls
[1995] 2 AC 111
England and Wales

Updated: 15 October 2021; Ref: scu.250977

Walker v Galbraith: SCS 21 Dec 1895

A subject was assigned to two spouses ‘in conjunct fee and to the survivor of them in fee, and at the death of the survivor to the heirs of the spouses equally between them.’
They subsequently executed a mutual general disposition by which they disponed to and in favour of the survivor in liferent for his or her liferent use only, and at the death of the survivor to two sons of the wife by a previous marriage, equally between them, their whole estate, heritable and moveable.
The subject acquired by them under the assignation was the only property belonging to the spouses at the time when they executed this disposition.
Held (1) that the assignation conferred upon the husband and wife a joint fee with the benefit of survivorship; (2) that the general mutual disposition evacuated the destination of the subject to their heirs contained in the assignation.
Lord Moncreiff, Ordinary
[1895] SLR 33 – 246
Bailii
Scotland

Updated: 15 October 2021; Ref: scu.612977

Simpson v Godmanchester Corporation: HL 27 Jul 1897

An easement, exercised for the benefit of the dominant estate, is not invalid merely because from the very nature of the right its exercise by the dominant estate confers some benefit upon other tenements.
The corporation of Godmanchester as owners of certain lands had for more than 200 years opened as of right the gates of certain sluices or locks belonging to the appellant upon the River Ouse in time of flood or likelihood of flood in order to prevent damage to those lands.
Held, that the easement was good and was none the worse because the exercise of it also benefited lands belonging to other persons ; and that the corporation could maintain their right either by s. 2 of the Prescription Act 1832 or by the fiction of a lost grant.
The decision of the Court of Appeal, [1896] 1 Ch
[1897] UKLawRpAC 41
England and Wales
Cited by:
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.668406

Duke of Norfolk v Tennant: 1 Apr 1852

Where there is no original equity affecting the claim of a party to compensation under the 68th section of the Lands Clauses Consolidation Act, in respect of lands injuriously affected, the statute does not create such an equity ; but where there is an original equity affecting the claim the statute does not take it away.
Where, therefore, an agreement for such compensation has been completed and carried out, and the satisfaction perfected, there is no ground for the interference of the Court, arising out of the provision of the statute ; but where the Defendant has received the consideration for perfecting the satisfaction, and refuses to perfect it, and a case for specific performance arises, there is nothing in the statute to exclude the interposition of the Court.
The Court does not interfere by injunction to restrain parties who insist that their property has been injuriously affected within the meaning of the 68th section of the Lands Clauses Consolidation Act from prosecuting their claim under the Act, upon the mere ground that the Act has not provided the means of determining the preliminary question whether the property has been injuriously affected or not. But whether the same rule applies to a case in which there are several grounds of claim, some of which have been satisfied – quaere
[1852] EngR 420, (1852) 9 Hare 745, (1852) 68 ER 716
Commonlii
England and Wales

Updated: 14 October 2021; Ref: scu.295543

Kirby v Harrogate School Board: CA 1896

The Board had power under the 1870 Act to acquire land to build school accommodation. The 1845 Act was to apply ‘with respect to the purchase of land’ for the purposes of the 1870 Act. The Board began to erect a school building on a site which they had acquired by agreement. The plaintiff alleged that it infringed a restrictive covenant attached to his land, and sought an injunction.
Held: The claim failed. The work was authorised by the statute, and the only remedy for the infringement of the private right was a claim for compensation under section 68 of the 1845 Act.
Lindley LJ thought the language of the 1845 statute to be unhappy, but: ‘when regard is had to the object of the section, it would be misreading the Lands Clauses Act if we were to hold that a person injuriously affected by the construction of the works could not have the benefit of section 68 if the company had managed to acquire the land by agreement rather than by the exercise of their compulsory powers. I have not the slightest doubt myself that s. 68 properly applies to all cases of purchase by railway companies under their powers, and to all cases of purchase by school boards under the powers conferred upon them by this Act of 1870.’
Kay LJ would not confine the words of section 68 to works on land which had been acquired compulsorily.
Lindley LJ, Kay LJ, A L Smith LJ
[1896] 1 CH 437
Elementary Education Act 1870, Land Clauses Consolidation Act 1845
England and Wales
Cited by:
Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.186374

SJC Construction v Sutton London Borough Council: CA 1976

An appeal was mounted against the decision of the Lands Tribunal to allow the variation of a restrictive covenant under 84(1A)(b) only and not under 84(1A)(a). The tribunal had said that the word ‘substantial’ required applicants to show: ‘that the benefit is not of any real importance in either money terms or in having some other advantage’ The application of the word ‘substantial’ was ‘a question of fact and degree having regard to all the circumstances’; and ‘The question I have asked myself in this case is whether the benefits and advantages to the (covenantee) are of so little weight in relation to what is proposed by the appellants that they can regard as having no real importance.’ The answer in this case was ‘No’.
Held: The award was upheld: ‘the modification of this restrictive covenant clearly resulted in the respondents suffering the loss of a practical benefit of substantial value or advantage. For that substantial loss or disadvantage they were entitled to substantial compensation.’
Stephenson LJ
[1974] 28 P and CR 200, (1975) 234 EG 363, [1976] RVR 219
Law of Property Act 1925 84
England and Wales
Cited by:
Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Cited – 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 – 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 – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.186377

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 intended for a development of accommodation for the aged. The tribunal had refused the application under the limited benefit ground (regarding the impact as less than ‘serious’ but ‘of real importance’), but allowed it under the public interest ground.
Held: The measure of compensation payable on the compulsory acquisition of an easement is the diminution in value of the interest affected and not by reference to a reasonable price that could be extracted for the giving up of the right.
Lord Denning MR said: ‘So, we come back to the question: what is the basis or proper basis of compensation? It is simply to make up ‘for [the] loss or disadvantage suffered’ by the borough council. There is no method prescribed by the Act by which it is to be assessed; it is essentially a question of quantum. It is however, to be assessed for loss of amenities, loss of view and so forth, which are things which it is hard to assess in terms of money . . It is similar to compensation for pain and suffering.’ He referred to the Wrotham Park case and said: ‘The President looked at it in much the same way. He took a higher percentage. Instead of 5% he took 50%. He took the realisable development value and split it equally. That was, he said, fair to the parties. It was a method by which he was getting at the loss or disadvantage. I see no error of law in it. The loss or disadvantage is an intangible matter which is incapable of exact calculation in money, and he took a fair and sensible way of assessing it.’
Stephenson LJ held that the proposed way of calculating compensation was not contrary to the Act or to authority. The modification had resulted in the council losing a benefit of ‘substantial value or advantage’ for which they were entitled to ‘substantial compensation’.
Denning MR, Stephenson and Geoffrey Lane LJJ
[1983] 52 PandCR 278
England and Wales
Citing:
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .

Cited by:
Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Cited – 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 – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.186378

Duncan v Louch: QBD 4 Feb 1845

A dominant owner of an easement has no obligation to repair or maintain the land over which the right of way is exercised.
An easement permitting the dominant owner to walk over all parts of the servient tenement purely for pleasure can exist in law
Lord Denman CJ said ‘I think there is no doubt in this case. Taking the right, as Mr Peacock suggests, to be like the right of the inhabitants of a square to walk in the square for their pleasure, they paying the necessary rates for keeping it in order, I cannot doubt that, if a stranger were to put a padlock on the gate and exclude one of the inhabitants, he might complain of the obstruction, and a stranger would not be permitted to say that the plaintiff’s right was only conditional.’
Lord Denman CJ, Patteson J, Coleridge J, Wightman J
[1845] EWHC QB J68, (1845) 6 QB 904, 115 ER 341, [1845] EngR 460, (1845) 115 ER 341
Bailii, Commonlii
England and Wales
Cited by:
Cited – In re Ellenborough Park CA 15-Nov-1955
Qualifying Characteristics ofr Easement
Parties claimed a public right to wander through the grounds of the park.
Held: No such right could have been granted or was properly claimed. Lord Evershed MR said: ‘There is no doubt, in our judgment, but that Attorney-General v. Antrobus . .
Cited – 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 – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.245441

Persimmon Homes (Wales) Ltd and Another v County Borough Council: LT 28 Sep 2004

LT COMPENSATION – compulsory purchase – acquisition of land adjoining highway for improvement of junction and to provide access to housing land – proposed link road to proposed bypass – scheme underlying the acquisition – no scheme world – alternative access points – ransom value – whether value existed independently of the scheme – compensation andpound;1,139,000 – Land Compensation Act 1961, s 5(2) and (3)
[2004] EWLands ACQ – 40 – 2002
Bailii
Land Compensation Act 1961 5(2) 5(3)
England and Wales

Updated: 10 October 2021; Ref: scu.225814

Burgess v Northwich Local Board: 1880

In the context of the duty of a local parish to maintain a highway, Lindley J said: ‘An occasional flooding, even if it temporarily renders a highway impassable, is not sufficient to sustain an indictment for non-repair.’
Counsel accepted that: ‘There is no authority whatever for indicting a parish in respect of a road being impassable by reason of water, unless of course the water was a consequence of neglect to cleanse ditches or some such omission of duty.’
Lindley J
(1880) 6 QBD 264, [1880] LJQB 219, [1880] 44 LT 154, [1880] JP 256, [1880] 26 Digest (Repl) 352
England and Wales
Citing:
See Also – Burgess v Northwich Local Board 1877
The jurisdiction of an arbiter was not ousted by a mere denial of liability. The authority had a duty to provide at least some prima facie evidence first. . .

Cited by:
See Also – Burgess v Northwich Local Board 1877
The jurisdiction of an arbiter was not ousted by a mere denial of liability. The authority had a duty to provide at least some prima facie evidence first. . .
Cited – Burnside and Another v Emerson and Others CA 1968
The plaintiffs were injured in a road accident caused by flooding. They sued the executors of the deceased driver whose car spun out of control into the path of their own car, and also the highway authority, who had installed a proper system of . .
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 – Burnside v Emerson CA 1968
A car crashed as a result of running into a pool of storm-water lying across the road. The pool had been caused by the authority’s failure properly to maintain the drainage system, which had become blocked.
Held: The claim succeeded. Diplock . .
Cited – Pritchard v Clwyd County Council CA 16-Jun-1992
The plaintiff was injured wading through a flooded street. She claimed damages alleging a failure to maintain the storm water sewers. The defendants appealed a finding that they were responsible, and she appealed a contributory negligence . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.222761

Evis and Smith v Commission for New Towns: LT 31 Dec 2000

LT COMPENSATION – preliminary issue – disturbance payment – Land Compensation Act 1973 s 37 – business premises acquired by authority with compulsory purchase powers – land later developed by company with lease from authority – entitlement to compensation under Landlord and Tenant Act 1954 s 37 – whether such entitlement precludes compensation under 1973 Act s 37(1)(a) – whether fact that development not carried out by authority precludes compensation under s 37(1)(c) – held compensation under s 37(1)(a) not precluded but no entitlement under s 37(1)(c)
ACQ/125-7/2000
Land Compensation Act 1973 37
England and Wales

Updated: 10 October 2021; Ref: scu.170276

Spackman v Plumstead District Board of Works: 1885

The certificate of the superintending architect of the metropolitan board of works made under Metropolis Management (Amendment) Act 1862 section 75 and fixing the general line of buildings in a road was conclusive as to a building erected before the certificate was made, and, on the hearing of a summons issued after the making of the certificate, for an offence under the section, alleged to have been committed in respect of such building, the Justice had no jurisdiction to review the Architect’s decision or decide for himself whether the line fixed by the certificate was the true general line.
(1885) 10 App Cas 229
England and Wales
Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653097

Cooper v Wandsworth Board of Works: CCP 21 Apr 1863

A house owner had failed to give proper notice to the Board they had under an Act of 1855 authority to demolish any building he had erected and recover the cost from him. This action was brought against the Board because they had used that power without giving the owner an opportunity of being heard. The Board maintained that their discretion to order demolition was not a judicial discretion and that any appeal should have been to the Metropolitan Board of Works.
Byles J said: ‘although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature’.
Erie CJ held that the power was subject to a qualification repeatedly recognised that no man is to be deprived of his property without his having an opportunity of being heard and that this had been applied to ‘many exercises of power which in common understanding would not be at all a more judicial proceeding than would be the act of the district board in ordering a house to be pulled down’.
Willes J said that the rule was ‘of universal application and founded upon the plainest principles of justice’
Byles J, Eyrie CJ, Willes J
(1863) 32 LJCP 185, (1863) 14 CBNS 180, (1863) 143 ER 414, [1863] EngR 424
Worldlii
England and Wales
Cited by:
Approved – Hopkins and Another v Smethwick Local Board of Health CA 1890
Willes J said: ‘In condemning a man to have his house pulled down, a judicial act is as much implied as in fining him pounds 5 ; and as the local board is the only tribunal that can make such an order its act must be a judicial act, and the party to . .
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653095

Mills v Partridge, The Estate of and Another: ChD 5 Aug 2020

Rights and obligations relating to three parcels of land
Judge Simon Barker QC
[2020] EWHC 2171 (Ch)
Bailii
England and Wales
Citing:
Cited – Shaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653026

Tupper v Foulkes: 1861

Anything which shows that a party treats an instrument as his deed will suffice to make it his deed.
Williams J
(1861) 9 CB (NS) 797, [1860] EngR 271 (A), (1860) 2 F and F 167
Commonlii
England and Wales
Cited by:
Cited – Alan Estates Ltd v WG Stores Ltd and Another CA 1-Jul-1981
The proposed tenant wanted to get into possession, and was given a key and paid a quarter’s rent to the lessor’s solicitors to be held as stakeholders, before the lease had been formally granted. An undated lease and counterpart were executed and . .
See Also – Tupper And Others v Foulkes 26-Jan-1861
. .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.252353

Mounsey v Ismay: 20 Jan 1863

The inhabitants of Carlisle claimed a custom of holding horse races in May over land at Kingsmoor. The landowner’s counsel protested that the fields were arable land.
Held: Martin B: ‘It must be assumed that the custom has existed since the time of Richard the First; and why may it not have been reasonable in the then state of the land?’
A customary public right to hold horse races was not an easement within the meaning of section 2 of the Prescription Act 1832. Baron Martin said: ‘ . . we are of opinion that to bring the right within the term ‘easement’ in the second section it must be one analogous to that of a right of way which precedes it and a right of watercourse which follows it, and must be a right of utility and benefit, and not one of mere recreation and amusement.’
Martin B
(1863) 1 H and C 729, [1863] EngR 163, (1863) 1 H and C 729, (1863) 158 ER 1077
Commonlii
Prescription Act 1832 2
England and Wales
Cited by:
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Appeal from – Mounsey v Ismay Cexc 25-Jan-1865
A claim by custom for the freemen and citizens of a town, on a particular day in the year, to enter upon a close for the purpose of holding horse races thereon, is not a claim to an ‘easement’ within the 2nd section of the Prescription Act 2 and 3 . .
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 . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.242322

Keith v Twentieth Century Club Ltd: ChD 1904

(1904) 73 LJCh 545
England and Wales
Cited by:
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.668407

Moncrieff and Another v Jamieson and others: HL 17 Oct 2007

The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable use and enjoyment of the servitude. The use of the words ‘necessary’ and ‘comfortable’ strikes the right balance between the interests of the servient and the dominant proprietors.’ The answer may differ in each case. The Sherriff heard the evidence and reached a conclusion that such an ancillary right arose. The arguments about possible abuse of the right by others than the dominant land owner were irrelevant. Given the history of the matter an interdict was appropriate.
In asking whether a proposed easement would stop any use by the servient owner, it must be allowed that a land owner may create such rights as he chooses over his land. Lord Scott said that he would: ‘reject the test that asks whether the servient owner is left with any reasonable use of his land, and substitute for it a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land.’
Lord Scott also doubted whether the grant of a right to use a neighbour’s swimming pool could ever qualify as a servitude (the Scottish equivalent of an easement) as the swimming pool owner would be under no obligation to keep the pool full of water and the grantee would be in no position to fill it if the grantor chose not to do so. The right to use the pool would, he opined, be no more than an in personam contractual right at best.
Lord Rodger said: ‘the express grant of a servitude of access in the pursuers’ title could carry with it an implied right to park on the servient land if this was essential to make the servitude of access effective or to carry out the purpose for which the servitude of access was granted or was a means of obtaining an effective right of access. On that basis, for example, if pedestrian access was to be obtained over many miles of servient land, a right to stop and rest for some time on the servient land might readily be implied. But I see no basis for implying into the grant of a servitude of access, which is effective, further rights simply on the basis that they would be ‘for the convenient and comfortable use of the property.”
Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Mance, Lord Neuberger of Abbotsbury
[2007] UKHL 42, [2007] 1 WLR 2620
Bailii
Scotland
Citing:
Cited – Baird v Ross 1836
A dominant proprietor of land was not entitled to load or unload or turn carts unless he could do so on the cart way. . .
Appeal from – Moncrieff and Another v Jamieson and others IHCS 4-Feb-2005
. .
Cited – Harvey v Lindsay 1853
A new servitudes over land may arise as alterations take place in the progress of society. . .
Cited – Murrayfield Ice Rink Ltd v Scottish Rugby Union Trustees 1973
The court referred to a clause in the feu charter which described a right of use of an area of ground as a car park as a servitude right as ‘a mere servitude right.’ . .
Cited – Nationwide Building Society v Walter D Allan Ltd ScS 4-Aug-2004
Lady Smith said that she could not conclude that Scots law recognises, in principle, a servitude right of parking independent of any right of access. . .
Cited – Kennedy v MacDonald 14-Nov-1988
Activities which are reasonably incidental to the enjoyment of a right of access over land may be incorporated in the right. . .
Cited – Ewart v Cochrane 1861
The parties disputed whether a servitude right to drain water by means of a drain from a tanyard into a garden could be implied when the tanyard and the garden came into separate ownership.
Held: Lord Campbell LC said: ‘My Lords, I consider . .
Cited – Ferguson v Tennant HL 1978
Pasturage is, in itself, a well-recognised servitude. Lord Grieve said that the number of cattle that may be put on the lands of the servient tenement must not exceed that which is ‘proper to the dominant’ – that, is, that the number that the . .
Cited – Jones v Pritchard ChD 6-Feb-1908
The grant of an easement ordinarily carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. However the grant of a right of way over a driveway cannot place on the servient owner the obligation to . .
Cited – McLaren v City of Glasgow Union Railway Co 1878
The court considered the implication by necessity of an implied right of access for land on severance which would otherwise be landlocked. . .
Cited – Cronin v Sutherland 1899
The parties disputed whether a servitude right of passage which had been limited to the use of the road by carts drawn by horses and laden with fuel or manure could be used by the owners of the dominant tenement as a means of egress from their . .
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 – Dyce v Lady James Hay HL 1852
A claim was made for a prescriptive right for all the Queen’s subjects ‘to go at all times upon the . . appellant’s property . . for the purpose of recreation’.
Held: Leonards LC said that the right claimed was one that ‘cannot be maintained’ . .
Cited – Reilly v Booth 1890
The express grant of a right over land which would place the dominant owner in such occupation of the servient land as to bar the servient owner from possession or control of the land may not constitute the grant of an easement but may be construed . .
Cited – Hogg v Campbell 2-Apr-1993
The proposition that the dominant proprietors are the only persons interested in an easement cannot be taken too strictly. The right extends to the proprietors’ guests, visitors, employees and others who come there for the purposes to which the land . .
Cited – Pettey v Parsons CA 1914
Mr Parsons (the defendant) owned a parcel of land on the junction of two roads in Bournemouth, called Charminster Road and Alma Road. In the middle of the parcel there was a footpath which ran from Charminster Road westwards to a private road which . .
Cited – A G of Southern Nigeria v John Holt and Company (Liverpool) Limited PC 9-Feb-2015
(Southern Nigeria) The right to use servient land for the purpose of storage was claimed. It was argued that such a right could not exist as an easement.
Held: Lord Shaw of Dunfermline said: ‘there is nothing in the purposes for which the . .
Cited – Celsteel Ltd v Alton House Holdings Ltd ChD 1985
An equitable easement (a right of way), which was not protected by any entry on the register, was a right openly exercised and enjoyed as appurtenant, in this case to a garage, and it adversely affected registered land as an overriding interest. The . .
Cited – Saint v Jenner CA 1973
The dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. The servient owner installed speed bumps. The dominant onwer alleged interference with the right of way.
Held: This . .
Cited – Wright v Macadam KBD 1949
The court considered the exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of section 62. One exception was if the right was . .
Cited – Copeland v Greenhalf ChD 1952
If a right claimed by way of an easement would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, than that right is not capable of being an easement. The rights asserted here were both . .
Cited – London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive . .
Cited – Batchelor v Marlow and Another CA 12-Jul-2001
The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that . .
Cited – Chalmers Property Investment Co Ltd v Robson HL 20-Jun-1967
A cottage on Mull had no public water supply. The owner had a right to draw water for domestic purposes from a ‘spring or well’ on neighbouring land, but without any guarantee as to its sufficiency, purity or suitability; ‘and for the above purpose . .
Cited – Sutherland v Thomson 1876
Once a servitude right and its scope are established, it ‘must be rendered as little burdensome to the servient tenement as is consistent with its fair exercise.’ . .
Cited – Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1976
The defenders had laid down moorings on the seabed in Fairlie Bay. They argued that the right to lay moorings was a necessary incident of the public right of navigation. The pursuers maintained, however, that the right to anchor was restricted to . .
Cited – Grigsby v Melville and Another ChD 1972
A purchaser of a house above a cellar sought an injunction to support his assertion that a cellar which was served by an access only from the defendant seller’s retained property had been included in the conveyance of ‘all that dwellinghouse’
Cited – Hill v Maclaren 1879
A servitude right must be exercised ‘so as to impose the least possible burden on the servient tenement, consistently with the fair enjoyment of this right by the dominant proprietor.’ . .
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 by:
Cited – Waterman and Another v Boyle and Another CA 27-Feb-2009
Property had been sold with a right reserved to park two vehicles on retained land. The parties now disputed whether the right included rights for additional visitors’ vehicles to use the necessary right of way and parking spaces additional to the . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
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 – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.259906

Miller v Emcer Products Ltd: CA 20 Dec 1955

An express term in a contract excludes the possibility of implying any term dealing with the same subject-matter as the express term.
Sir Raymond Evershed MR, Birkett LJ, Romer LJ
[1956] EWCA Civ 6, [1956] 1 All ER 237, [1956] Ch 304
Bailii
England and Wales
Cited by:
Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
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 – 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 . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.262842

Stafford and Another v Lee and Another: CA 10 Nov 1992

The plaintiff had built houses on his land and sought an easement of necessity over the neighbour’s drive for access for the houses under the rule in Pwllbach Colliery, saying an intended easement had been granted because it was known to the parties when the land was sold that it was to be used for residential purposes and that it was therefore implied that a right of way would be needed.
The court was asked whether a right of way claimed by the plaintiffs as appurtenant to their land falls into the second class of implied easements described by Lord Parker of Waddington in Pwllbach Colliery Company Limited v. Woodman [1915] AC 634 and usually known as intended easements.
Held: The grantee asserting an implied easement must surmount two hurdles: ‘He must establish a common intention as to some definite and particular user. Then he must show that the easements he claims are necessary to give effect to it. ‘ Here, the layout implied that the right of way had been reserved to allow further development.
To claim under the rule in Pwllbach, the plaintiff must show that some specific use was intended for the land, and that the easement was necessary for that use. The intentions were to be established on a balance of probabilities. Here the plans had shown similar plots on each side of the vacant lot and each with houses. That was sufficient to show the necessary intention. The easement was granted. Nourse LJ: ‘There are therefore two hurdles which the grantee must surmount. He must establish a common intention as to some definite and particular user. Then he must show that the easements he claims are necessary to give effect to it.’
Nourse LJ, Russell LJ
Gazette 09-Dec-1992, (1993) 65 P and CR 172, Times 16-Nov-1992, [1992] EWCA Civ 17, [1992] EG 136 (CS), [1992] NPC 142
Bailii
England and Wales
Citing:
Applied – 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 – 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 – 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 . .
Cited – Scott v Martin 1987
When construing a land contract, the parties should not readily be assumed to have intended to act in breach of planning requirements . .

Cited by:
Cited – Adam v Shrewsbury, Shrewsbury CA 28-Jul-2005
The neighbour parties disputed the existence of a right of way over one plot. The grant was for the use of a garage yet to be constructed, on ground to be excavated by the grantor, accessible only from a roadway which was only partly constructed, at . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.276295

Kent and Another v Kavanagh and Another: CA 2 Mar 2006

The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular question arose as to the position of the boundary and whether neighbours had a right of way over a pathway through one party’s garden.
Held: The plots continued to enjoy on enfranchisement the same easements as existed under the leases: (Chadwick LJ) ‘the outcome of the present appeal turns, . . . on whether [the] plots were entitled, under the leases . . . to reciprocal rights of way over the pathway which lies between them. If they were so entitled, then . . . each will enjoy a right of way over that half of the pathway which is in the ownership of the other. But if either plot was not entitled, under the lease upon which it was held at the time of enfranchisement, to a right of way over the other half of the pathway, then that plot did not acquire a right of way over the pathway when the two plots were enfranchised in 1976. The reason is that the other plot was not, then, subject to a tenant’s incumbrance. In such a case, the right of way could only be acquired (if at all) by prescription since 1976. ‘
Chadwick LJ, Longmore LJ, Lewison J
[2006] EWCA Civ 162, Times 24-Mar-2006, [2007] Ch 1, [2006] 3 WLR 572
Bailii
Leasehold Reform Act 1967, Law of Property Act 1925 62
England and Wales
Citing:
Cited – In re Dulwich College Estate’s Application 1974
The Court approved an estate management scheme under s19. . .
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 – Brown v Alabaster 1888
. .
Cited – Nicholls v Nicholls 1889
. .
Cited – Donnelly v Adams 1905
(Ireland) . .
Cited – Cable v Bryant 1908
A tenant sought a right to ventilation enjoyed by land let to a tenant. It was argued that there could be no implied easement over adjoining property of a lessor where the adjoining property was already let out. It would be an easement in reversion. . .
Cited – Sovmots Investments Ltd v Secretary of State for the Environment HL 28-Apr-1977
The section in the 1881 Act does not apply to a quasi-easement because ‘When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. . .
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 – Goldberg v Edwards 1950
. .
Cited – Byrnlea Property Investments Ltd v Ramsay CA 1969
It was a requirement under the 1967 Act for the notice of a lessee, seeking to extend his interest under that Act, to indicate whether he was seeking the freehold or an extended lease. The tenant failed to do so.
Held: This failure was fatal. . .
Cited – Cory v Davies 1923
The second proposition in Wheeldon v Burrows is subject to exceptions, and reciprocal rights and reservations into leases should be implied. . .
Cited – Official Custodian for Charities v Goldridge CA 1973
The social policy underlying the 1967 Act is that ‘the land belongs in equity to the landowner and the house belongs in equity to the occupying leaseholder.’ . .

Cited by:
Cited – Wall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.238789

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: ‘merger of the lease into a larger interest in the dominant tenement is not in itself fatal to the continued existence of the easement, for the period for which it was granted. The dominant tenement remains unchanged and there is no legal impediment to the continued enjoyment of the easement by the occupier for the time-being of that tenement. ‘ Under section 62, it is the occupier’s ‘enjoyment’ of the bundle of rights, rather than its legal source, which is material.
Mummery LJ, Carnwath LJ, Hooper LJ
[2007] EWCA Civ 444, [2007] 3 WLR 459
Bailii
Law of Property Act 1925 62 (2)
England and Wales
Citing:
Cited – International Tea Stores v Hobbs ChD 25-Apr-1903
Farwell J considered the circumstances of acquisition of a right of way by prescription and said: ‘The real truth is that you do not consider the question of title to use, but the question of fact of user; you have to inquire whether the way was in . .
Cited – Golden Lion Hotel v Carter 1965
A lease of a plot of land fronting a road contained a covenant by the lessor, who was also the owner of land with a hotel on the opposite side of the road, not to build on the hotel site except to a specified extent. Subsequently, the lessee . .
Cited – Graham v Philcox CA 1984
A right of way, originally granted in connection with a five year tenancy of a part of a house, was converted by section 62 into a permanent right of way on the conveyance of the freehold.
Lord Justice Purchas disagreed with the judge who had . .
Cited – Birmingham Joint Stock Co v Lea 1877
The court considered whether a covenant in a lease survived its extinction: ‘though the old under-lease was gone it was clearly part of the arrangement that the defendant should remain subject to the covenant and that accordingly he remained bound . .
Cited – Lewis v Meredith 1913
Neville J discussed the attachment of an easement created under a leasehold interest becoming attached to the freehold interest: ‘Easement or right in the strict sense there could not be, for the common ownership precluded the acquisition of any . .
Cited – Graham v Philcox CA 1984
A right of way, originally granted in connection with a five year tenancy of a part of a house, was converted by section 62 into a permanent right of way on the conveyance of the freehold.
Lord Justice Purchas disagreed with the judge who had . .
Cited – Massey and Another v Boulden and Another CA 14-Nov-2002
The claimants said they had acquired a right of way by vehicle over land, a village green, having driven over it for more than forty years. It was responded that the act of driving over the land other than on a track had been an unlawful act, and as . .
Cited – Peacock and Another v Custins and Another CA 14-Nov-2000
The conveyance of a field constituting the dominant land to the claimants was expressed to be subject to the benefit of a right of way over land owned by the defendants, enabling the claimants to reach the dominant land ‘at all times and for all . .
Cited – Rymer v McIlroy 1897
B, the freehold owner of Blackacre, granted a right of way over it to A, the lessee of Three-acre; one year later A acquired the freehold title to Three-acre and his leasehold interest then merged in the freehold; he subsequently leased part of . .
Cited – Kent and Another v Kavanagh and Another CA 2-Mar-2006
The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular . .
Cited – Harris v Flower CA 1904
The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.252390

Dunn v Blackdown Properties Ltd: 1961

Application of the rule against perpetuities to expiration of rights of way.
Cross J
[1961] 1 Ch 433
England and Wales
Cited by:
Cited – Adam v Shrewsbury, Shrewsbury CA 28-Jul-2005
The neighbour parties disputed the existence of a right of way over one plot. The grant was for the use of a garage yet to be constructed, on ground to be excavated by the grantor, accessible only from a roadway which was only partly constructed, at . .
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 . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.230139

Hall and Others v Mayor of London (on Behalf of The Greater London Authority): CA 16 Jul 2010

The appellants sought leave to appeal against an order for possession of Parliament Square on which the claimants had been conducting a demonstration (‘the Democracy Village’).
Held: Leave was refused save for two appellants whose cases were remitted for reconsideration. The appellants had had a fair trial, having been given extra time to prepare their cases. Though the common law might also assist the Mayor in his claim, it was in fact decided by the statutes which implied the necessary rights. The defendants should have the right to express the views which they wish to express; similarly, there is no doubt that they should enjoy the right to assemble together, which rights are specifically protected by, respectively, articles 10 and 11 of the Convention. The appellants activities fell within the protection of those article. However the rights are also subject to limits. Those limits were prescribed by the law, and the judge had considered them correctly and applied them.
Lord Neuberger of Abbotsbury MR said: ‘The right to express views publicly, particularly on the important issues about which the defendants feel so strongly, and the right of the defendants to assemble for the purposes of expressing and discussing those views, extends to the manner in which the defendants wish to express their views and to the location where they wish to express their views. If it were otherwise, these fundamental human rights would be at risk of emasculation. Accordingly, the defendants’ desire to express their views in Parliament Square, the open space opposite the main entrance to the Houses of Parliament, and to do so in the form of the Democracy Village, on the basis of relatively long-term occupation with tents and placards, are all, in my opinion, within the scope of articles 10 and 11.’
Neuberger MR, Arden, Stanley Nurnton LJJ
[2010] EWCA Civ 817, [2010] WLR (D) 195, [2011] 1 WLR 504
Bailii, WLRD
Greater London Authority Act 1999 384, Trafalgar Square and Parliament Square Gardens Byelaws 2000 3, European Convention on Human Rights 10 11
England and Wales
Citing:
Cited – Richard Roe, On The Several Demises of Elizabeth Haldane And Thomas Urry, v William Harvey 1769
The production of a deed establishing an estate in the land is necessary to support an action of ejectment of a defendant from land. . .
Cited – Harper v Charlesworth 1825
A claim to eject somebody from land must be supported by a deed establishing ownership of an interest in the land. . .
Cited – West Bank Estates Ltd v Arthur PC 1967
(From Federal Supreme Court of the West Indies) A claim was made for possessory title to a strip of land, based upon acts of cultivation, the cutting of timber, wood and grass, fishing and growing rice. The trial judge disallowed the claim to a . .
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
Cited – Hill v Tupper 1-May-1863
The canal company had by deed granted the sole right to use the canal for pleasure boats to the plaintiff. The defendant disturbed that right by using the canal for the same purpose.
Held: The claim failed. The right under the contract was not . .
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 – Manchester Airport Plc v Dutton and others CA 18-Jan-1999
. .
Cited – Georgeski v Owners Corporation SP49833 22-Nov-2004
Austlii (Supreme Court of New South Wales) REAL PROPERTY – Crown lands – licence granted by Crown over site of jetty and slipway on bank of tidal river – nature of rights created – whether jetty and slipway are . .
Cited – University of Essex v Djemal and others CA 1980
Students occupied the administrative office part of university premises. Following an order for possession of that part, they moved to a part known as Level Six. The university then sought an order for possession of the whole of its premises. Just . .
Cited – Manchester City Council v Pinnock CA 31-Jul-2009
The court considered the status in law of ‘demoted tenants’, those who had been secure social housing tenants, but who had only limited security after being found to have behaved anti-socially. The tenant had been refused an opportunity by the . .
Cited – Tabernacle v Secretary of State for Defence CA 5-Feb-2009
The claimant sought judicial review to test the validity of the bye-laws which prohibited them from camping on public land to support their demonstration.
Held: The bye-laws violated the claimant’s right to freedom of assembly and of . .
Cited – Birmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Cited – Stoke-On-Trent City Council v B and Q (Retail) Ltd HL 1984
The defendants had been trading on Sundays in breach of s.47 of the Shops Act 1950, which, by s.71(1) imposed on every local authority the duty to enforce within their district the provisions of that Act. Parliament has given local authorities a . .
Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – City of London Corporation v Bovis Construction Ltd CA 18-Apr-1988
An injunction had been granted to restrain Bovis from causing a noise nuisance outside certain hours specified in a notice served by the council under the 1974 Act which created a criminal offence ‘without reasonable excuse’ to contravene the . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Appeal from – The Mayor of London v Hall and Others QBD 29-Jun-2010
The Mayor sought possession of land outside Parliament occupied for some considerable time by the defendant protesters. . .

Cited by:
Cited – City of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .
Cited – The Mayor Commonalty and Citizens of London v Samede (St Paul’s Churchyard Camp Representative) and Others CA 22-Feb-2012
The defendants sought to appeal against an order for them to vacate land outside St Paul’s Cathedral in London which they occupied as a protest.
Held: The application for leave to appeal failed. The only possible ground for appeal was on the . .
Cited – Roberts and Others v Regina CACD 6-Dec-2018
Sentencing of Political Protesters
The defendants appealed against sentences for causing a public nuisance. They had been protesting against fracking by climbing aboard a lorry and blocking a main road for several days.
Held: The appeals from immediate custodial sentences were . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.420801

Carter, Carter v Cole, Cole: CA 11 Apr 2006

Disputed right of way. The court recognised the right of the owner of a servient tenement to repair a roadway.
Longmore LJ said that step-in rights are, by definition, rights to reasonable access for maintenance of the servient tenement, sufficient, but no more than sufficient, to enable the rights granted to be used.
Lord Justice Waller Lord Justice Lloyd Lord Justice Longmore
[2006] EWCA Civ 398, 2006] NPC 46
Bailii
England and Wales
Cited by:
See Also – Carter and Another v Cole and Another CA 20-May-2009
. .
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 – 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 . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.241974

P and S Platt Ltd v Crouch and Another: CA 25 Jul 2003

The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did not interfere to an unacceptable extent with the servient owner’s enjoyment of his land, the judge’s finding of what was in practice a question of fact would not be disturbed.
Peter Gibson, Dyson, Longmore LJJ
[2003] EWCA Civ 1110, Times 27-Aug-2003, [2004] 1 Pand CR 18
Bailii
Law of Property Act 1925 62
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 – Birmingham, Dudley and District Banking Co v Ross CA 1888
Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under . .
Cited – Wright v Macadam KBD 1949
The court considered the exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of section 62. One exception was if the right was . .
Cited – Hair v Gillman 2000
. .
Cited – Selby District Council v Samuel Smith Old Brewery Ltd CA 15-Jun-2000
The council conveyed land to the brewery, with an option to re-purchase it. On exercising the option, the brewery asserted rights over the land, by way of easement acquired during its ownership. These were rejected by the court. The intention of the . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Copeland v Greenhalf ChD 1952
If a right claimed by way of an easement would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, than that right is not capable of being an easement. The rights asserted here were both . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society and Others CA 1-Nov-1996
Public policy rendered an assignment of a remedy void, where the assignment was an attempt to split it from another remedy. For the purpose of construing a contract the law excludes from the admissible factual background the previous negotiations of . .
Cited – London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive . .
Cited – Batchelor v Marlow and Another ChD 25-May-2000
The applicant claimed parking rights as an easement. If an easement was capable of arising by virtue of a deed of grant, it could also be acquired by prescription. This was such an easement. Use in the absence of planning permission did not vitiate . .

Cited by:
Cited – Campbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.184830

Adealon International Proprietary Ltd v London Borough of Merton: CA 25 Apr 2007

The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the sale off, the land was not surrounded by land belonging to the grantor, and was also next to the highway. Nor had their been any common intention of the parties that a right of way of necessity should be granted. The court rejected the submission that Adealon was entitled to an easement of necessity, by operation of law, and regardless of the existence of possible alternatives over land of third parties.
Carnwath LJ, Silber LJ, Mummery LJ
[2007] EWCA Civ 362, [2007] 1 WLR 1898
Bailii
England and Wales
Citing:
Cited – Barry v Hasseldine 1952
The grantee’s land was surrounded partly by land of the vendor, and partly by that of other parties, including a disused airfield owned by a third party. For some time following the grant they had been able to obtain access over the airfield by . .
Cited – Manjang v Drammeh PC 1990
The owner of a strip of land alongside the River Gambia and which was ‘regularly and without inconvenience’ accessed by his customers from the river failed in a contention that his land was ‘landlocked’ so as to give him a way of necessity over . .
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 – Corporation of London v Riggs CA 1880
The court considered whether a right of way of necessity had been granted: ‘the real question I have to decide is this – whether, on a grant of land wholly surrounding a close, the implied grant, or re grant, of a right of way by the grantee to the . .
Cited – Titchmarsh v Royston Water Company Limited 1899
The land owner sought a grant of right of way of necessity. His land was blocked on three sides by land of the vendors and on the fourth side by a route which ran in a cutting, which would make connection with the granted land difficult.
Held: . .
Cited – Hansford v Jago 1921
The fact that a way is not itself made up or identifiable on the ground may not be fatal to the establishment of an easement under Wheeldon v. Burrows or section 62 of the 1925 Act, if the ends of the way are apparent and it is clear that it was the . .
Cited – Nickerson v Barraclough CA 13-Dec-1980
The defendant appealed a finding that the plaintiff had a right of way of necessity over his land. When looking to see whether a grant of a right of way of necessity was implied, the court should ascertain the intention of the parties and public . .
Cited – Nickerson v Barraclough (2) ChD 2-Jan-1980
The Vice-Chancellor said: ‘if land is conveyed in circumstances which otherwise would create a way of necessity, or a way implied from the common intention of the parties based on a necessity apparent from the deeds, does public policy prevent the . .
Cited – Nickerson v Barraclough (1) ChD 1980
The court considered an assertion that a right of necessity was implied into a deed.
Held: ‘In the present case the land conveyed was plainly intended to be used for building purposes, and of course it plainly needed access for building . .
Cited – North Sydney Printing Property Ltd v Sobemo Investment Co. Ltd 1971
(Supreme Court of New South Wales in Equity) A company sold part of its land, which abutted on to a street. The retained land had no access to a highway, but the company intended subsequently to sell it to the local authority as an addition to a . .
Cited – Pinnington v Gallard 1853
Mr Dickinson had sold, on the same day in 1839, a piece of land in three separate lots, one to Mr Dearle, and another to Mr Moss. An existing track through Mr Dearle’s lot gave access to Mr Moss’ lot and was used for that purpose for several years . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.251453

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 an ouster.
[1976] 1 Ch 13
England and Wales
Citing:
See Also – Dowty Boulton Paul Ltd v Wolverhampton Corporation 1971
An order was sought to require the defendant tenants to keep an airfield open as a going concern.
Held: The order was refused. Pennycuick V-C said: ‘It is very well established that the court will not order specific performance of an . .

Cited by:
Cited – 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.
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.648250

Blankstein, Fages and Fages v Walsh: 1989

(High Court of Manitoba) Cottages were used for summer recreation. Though the acquisition of an easement by prescription to use adjoining land known as the ‘playground’ as a family recreational area was rejected on the facts, as the use was not as of right, the court recognised that the rights claimed were capable of existing as easements.
[1989] 1 WWR 277
Canada
Cited by:
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 – 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 . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.581348

Graham v Philcox: CA 1984

A right of way, originally granted in connection with a five year tenancy of a part of a house, was converted by section 62 into a permanent right of way on the conveyance of the freehold.
Lord Justice Purchas disagreed with the judge who had held that the easement had expired with the lease, saying that it was immaterial the right had been enjoyed by the occupier first under a five year tenancy, and thereafter (up to the time of the relevant conveyance) as statutory tenant: ‘He was undoubtedly using the right of way at that time. It was certainly an easement, right or advantage ‘reputed to appertain to the first floor flat’ and was enjoyed with that part ‘of the land, houses or other buildings conveyed.’ I can find nothing in the wording of section 62(2) of the Act to indicate that the ‘land conveyed’ cannot include land subject to a lease or an adverse right of occupation by a tenant protected by statute. The easement, right or advantage is enjoyed with and appertains to the land, not to the statutory right of occupation… The grant by which the right of way was originally created was a term of five years; but there were no specific limitations to that grant. I agree with what has already been said by May L.J. in relation to Mr. Reid’s submissions that the judge erred in considering the user of the way by the vendor rather than the user of the right of way with the land.’
May LJ, Purchas LJ
[1984] 1 QB 747
Law of Property Act 1925 62
England and Wales
Citing:
Approved – International Tea Stores v Hobbs ChD 25-Apr-1903
Farwell J considered the circumstances of acquisition of a right of way by prescription and said: ‘The real truth is that you do not consider the question of title to use, but the question of fact of user; you have to inquire whether the way was in . .
Cited – Lewis v Meredith 1913
Neville J discussed the attachment of an easement created under a leasehold interest becoming attached to the freehold interest: ‘Easement or right in the strict sense there could not be, for the common ownership precluded the acquisition of any . .

Cited by:
Cited – Wall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .
Cited – 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.
Updated: 10 October 2021; Ref: scu.252419

Sovmots Investments Ltd v Secretary of State for the Environment: HL 28 Apr 1977

The section in the 1881 Act does not apply to a quasi-easement because ‘When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs of ownership, or at least of occupation, the condition for the existence of rights, etc., does not exist.’ and ‘He cannot grant or agree to grant land and at the same time deny to his grantee what is at the time of the grant obviously necessary for its reasonable enjoyment.’
Lord Edmund-Davies said as to Wheeldon v Burrows: ‘The basis of such propositions is, as Lord Parker of Waddington stressed in Pwllbach Colliery Co Ltd v Woodman [1915] A.C. 624, 646, that ‘The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property . . ‘ But there is no common intention between an acquiring authority and the party whose property is compulsorily taken from him, and the very basis of implied grants of easements is accordingly absent.’
Lord Keith of Kinkel said that both the rule in Wheeldon v Burrows and the provisions of section 62 of the 1925 Act had ‘no place in compulsory purchase’.
Lord Wilberforce rejected the submission that the rule in Wheeldon v Burrows could apply in a case where the conveyance was made pursuant to a compulsory purchase order: ‘To apply this to a case where a public authority is taking from an owner his land without his will is to stand the rule on its head: it means substituting for the intention of a reasonable voluntary grantor the unilateral, opposed, intention of the acquirer’
and ‘section 62 does not fit this case. The reason is that when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc., does not exist
Lord Wilberforce, Lord Edmund-Davies, Lord Keith of Kinkel
[1979] AC 144, [1977] UKHL 3, [1977] 2 All ER 385, [1977] 2 WLR 951, [1977] QB 411
Bailii
Conveyancing Act 1881 6, Law of Property Act 1925 62
England and Wales
Citing:
Appeal from – Sovmots Investments Ltd v Secretary of State for the Environment 1977
. .
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 – Bolton v Bolton ChD 10-May-1879
A contract to sell land with the appurtenances does not pass a right to a way to the land sold which the vendor has used over adjoining land of his own.
Where a grantee is entitled to a way of necessity over another tenement belonging to the . .
Cited – Long v Gowlett 1923
Except where a right claimed is continuous and apparent, there must be diversity of ownership or occupation prior to the conveyance for section 62 (1) to apply. . .

Cited by:
Cited – Akumah v London Borough of Hackney HL 3-Mar-2005
The authority set up a parking scheme for an estate of house of which it was the landlord. Those not displaying parking permits were to be clamped. The appellant complained that the regulations had been imposed by council resolution, not be the . .
Cited – Millman v Ellis CA 1996
The defendant had sold part of his land to the claimant. A right of way was granted over a lane. The purchaser asserted that he had the use of a lay-by on the lane which would otherwise be dangerous. The vendor said the plan did not include a right . .
Cited – Kent and Another v Kavanagh and Another CA 2-Mar-2006
The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular . .
Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Cited – Campbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.223148

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 and cannot be required to pay for the use of those rights: ‘I reject the suggestion that the rights in this case are as a matter of construction to be construed as merely personal to the parties to the 1981 Transfer. They form part of a group of rights the first two of which (rights of way and of passage) are clearly easements. Further, the rights are expressed to benefit successors and occupiers from time to time: compare Ellenborough Park at p 167. Moreover, construing the rights as purely personal would produce the unexpected consequence referred to in paragraph 29 of this judgment.’
Purle QC HHJ
[2015] EWHC 3564 (Ch), [2016] 1 P andCR DG19, [2015] WLR(D) 506, [2016] 4 WLR 61
Bailii, WLRD
England and Wales
Citing:
Cited – In re Ellenborough Park CA 15-Nov-1955
Qualifying Characteristics ofr Easement
Parties claimed a public right to wander through the grounds of the park.
Held: No such right could have been granted or was properly claimed. Lord Evershed MR said: ‘There is no doubt, in our judgment, but that Attorney-General v. Antrobus . .
Cited – Attorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Cited – Miller v Emcer Products Ltd CA 20-Dec-1955
An express term in a contract excludes the possibility of implying any term dealing with the same subject-matter as the express term. . .
Cited – Mulvaney v Jackson, Gough, Holmes and Holmes CA 24-Jul-2002
Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as garden by the cottagers. The land owner removed a flower bed.
Held: . .
Cited – Carter, Carter v Cole, Cole CA 11-Apr-2006
Disputed right of way. The court recognised the right of the owner of a servient tenement to repair a roadway.
Longmore LJ said that step-in rights are, by definition, rights to reasonable access for maintenance of the servient tenement, . .
Cited – Duncan v Louch QBD 4-Feb-1845
A dominant owner of an easement has no obligation to repair or maintain the land over which the right of way is exercised.
An easement permitting the dominant owner to walk over all parts of the servient tenement purely for pleasure can exist . .
Cited – Dukart v District of Surrey and Others 1-May-1978
Supreme Court of Canada – The Court considered an easement allowing free access to the waters of the bay and recognised as easements the grant in favour of residential lots on a development plan of rights to use ‘foreshore reserves’ separating the . .
Cited – Riley v Penttila 20-Mar-1974
(Supreme Court of Victoria) The Court recognised as an easement the grant of land within a residential development ‘for the purposes of recreation’ over a garden or a park, in favour of residential lots, enthusiastically following the lead given in . .
Cited – Blankstein, Fages and Fages v Walsh 1989
(High Court of Manitoba) Cottages were used for summer recreation. Though the acquisition of an easement by prescription to use adjoining land known as the ‘playground’ as a family recreational area was rejected on the facts, as the use was not as . .
Cited – Grant v Macdonald 1992
British Columbia Court of Appeal – the right to build and use a swimming pool and other improvements on part of a neighbour’s land (the pool was never in fact built but a gazebo was) was regarded as capable of being an easement. . .
Cited – Mounsey v Ismay Cexc 25-Jan-1865
A claim by custom for the freemen and citizens of a town, on a particular day in the year, to enter upon a close for the purpose of holding horse races thereon, is not a claim to an ‘easement’ within the 2nd section of the Prescription Act 2 and 3 . .
Cited – City Developments v Registrar General of the Northern Territory 2-Jun-2000
(Supreme Court of the Northern Territory) – Hearing of preliminary point – whether purported grant of an easement an easement – easement has four essential criteria – easement does accommodate dominant tenement – the grant possessed all four . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Williams v Roffey Brothers and Nicholls (Contractors) Ltd CA 23-Nov-1989
The defendant subcontracted some of its work under a building contract to the plaintiff at a price which left him in financial difficulty and there was a risk that the work would not be completed by the plaintiff. The defendant agreed to make . .

Cited by:
Appeal from – 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 . .
At First Instance – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.556485

Adam v Shrewsbury, Shrewsbury: CA 28 Jul 2005

The neighbour parties disputed the existence of a right of way over one plot. The grant was for the use of a garage yet to be constructed, on ground to be excavated by the grantor, accessible only from a roadway which was only partly constructed, at the time of the grant.
Held: The grants failed for perpetuity.
Lord Justice Ward Lord Justice Clarke Lord Justice Neuberger
[2005] EWCA Civ 1006, [2006] 1 P and CR 27
Bailii
England and Wales
Citing:
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 – 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 – 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 – 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 – Stafford and Another v Lee and Another CA 10-Nov-1992
The plaintiff had built houses on his land and sought an easement of necessity over the neighbour’s drive for access for the houses under the rule in Pwllbach Colliery, saying an intended easement had been granted because it was known to the parties . .
Cited – Dunn v Blackdown Properties Ltd 1961
Application of the rule against perpetuities to expiration of rights of way. . .
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 by:
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.229084

McAdams Homes Ltd v Robinson and Another: CA 27 Feb 2004

The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, which is used for a particular purpose at the time of the conveyance, what are the principles governing the extent to which the easement can still be enjoyed by the owner of that property if he changes its use and/or constructs buildings on it?’
Held: ‘It would only be if the redevelopment of the site represented a radical change in its character and it would lead to a substantial increase in the burden, that the dominant owner’s right to enjoy the easement of passage of water through the Pipe would be suspended or lost. ‘ The case law is not consistent. The works of construction entitled the judge to reach his conclusion. A court is not in law, limited to considering the actual extent of the enjoyment of the easement by the dominant land at the time of the creation or grant of the easement. Though the court doubted the judge’s conclusion that th alteration would lead to a substantial increase in use, his decision was not so wrong as to allow interference.
Lord Justice Peter Gibson Lord Justice Neuberger and Sir Martin Nourse
[2004] EWCA Civ 214, Gazette 11-Mar-2004, [2005] 1 PandCR 520, [2004] 3 EGLR 93
Bailii
England and Wales
Citing:
Cited – Pyer v Carter 21-Feb-1857
Where the owner of two or more adjoining houses sells and conveys one of them to a purchaser, such house is entititled to the benefit and is subject to the burthen of all existing drains communicating with the other house, without any express . .
Cited – Watts v Kelson CA 1870
Property containing cattle sheds was sold, together with an implied right to the supply of water along pipes leading from a tank on the vendor’s land. The purchaser demolished the cattle sheds and erected cottages in their place.
Held: A . .
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 – British Railways Board v Glass CA 1965
An easement arising by prescription involves a fictional lost grant. The court considered the extent of user of an easement in relation to a prescriptive right of way for the benefit of land used as a caravan site: ‘A right to use a way for this . .
Cited – Ray v Fairway Motors (Barnstaple) Limited CA 1968
It was argued that an easement of support, obtained by prescription, could no longer be enjoyed where the owner of the dominant land had extended his building so as to increase, indeed virtually to double, the weight thrown onto a wall on the . .
Cited – Lutrell’s Case 1601
A prescriptive right to a watercourse was not lost by the dominant owner demolishing two ancient fulling mills and erecting in their place two new corn grinding mills. The Exchequer Chamber held that the dominant owner ‘might alter the mill into . .
Cited – Cargill v Gotts CA 1981
The Act prohibited abstraction of water from a river without a licence from the Water Authority. The defendant had no such licence, but asserted that having extracted water over many years from the mill pond, he had acquired the right to do so: ‘The . .
Cited – Wimbledon and Putney Commons Conservators v Dixon CA 1875
A prescriptive right of way had been enjoyed in connection with the use of the dominant land for agricultural purposes, which had included enlarging the farmhouse and rebuilding a cottage. The dominant owner could not use the way for carting . .
Cited – Williams v James 1867
A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the . .
Cited – Harvey v Walton 1873
(Court of Common Pleas) A right of eavesdropping was not lost when the dominant owner demolished the building on his land and replaced it with another, taller, building. ‘We are of opinion that the question here . . is whether there has been a . .
Cited – Attwood and Another v Bovis Homes Ltd ChD 18-Apr-2000
The dominant land, which had always been used for agricultural purposes, had a prescriptive right to drain surface water over neighbouring land. Though the proposed development of a housing estate on the dominant land, would be very substantial, the . .
Cited – Giles v County Building Constructors (Hertford) Limited ChD 1971
A right of way had arisen by prescription in favour of land which had two detached dwelling houses on it.
Held: The right of way could continue to be used, even after the two houses had been demolished and replaced by a three-storey block of . .
Cited – Milner’s Safe Company Limited v Great Northern and City Railway Company ChD 1907
A right of way had been impliedly granted in favour of a number of terraced houses over a passage running to the back of those houses, which were used at the time of grant for residential and warehouse use. A right to use the passageway for an . .
Cited – RPC Holdings Limited v Rogers 1953
A prescriptive right of way had been enjoyed in connection only with agricultural use of the dominant land, which was a field.
Held: The way could not be used in connection with the use of the field as a caravan and camping site. Harman J . .
Cited – Harvey v Walters CCP 1873
The court was asked whether an easement survived a change in usage: ‘We are of the opinion that the question here . . is, whether there has been a substantial variance in the mode of or extent of user or enjoyment of the easement, so as to throw a . .
Cited – Wood v Saunders 1875
The dominant land at the time of sale contained a house ‘adapted for about twenty-five inmates, and only part of the drainage of the house rain into the ditch or moat’ on land retained by the vendor. The purchaser subsequently extended the house, . .

Cited by:
Cited – Jones v Scott ChD 17-Nov-2006
The claimant asserted a right of way over neighbouring land, acquired by prescription. The defendant disputed that twenty years use could be shown.
Held: The claimant had failed to discharge the burden of proof as to the historical existence . .
Cited – Odey and Others v Barber ChD 29-Nov-2006
The claimants sought a declaration that they had two rights of way over a neighbour’s land. One was claimed by continuous use for twenty years, and the second was said to have been implied under the 1925 Act. No express grant was suggested. . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
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 – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.193930

Lewis v Meredith: 1913

Neville J discussed the attachment of an easement created under a leasehold interest becoming attached to the freehold interest: ‘Easement or right in the strict sense there could not be, for the common ownership precluded the acquisition of any right or easement by the occupiers, but International Tea Stores Co. v. Hobbs shows that ‘a right’ permissive at the date of the grant may become a legal right upon the grant by force of the general words in section 6 of the Conveyancing Act 1881. From this point of view the circumstances under which the quasi right was enjoyed became immaterial so long as it was actually enjoyed and was of a nature which could be granted, that is to say, a right known to the law.’
[1913] 1 Ch 571
Citing:
Cited – International Tea Stores v Hobbs ChD 25-Apr-1903
Farwell J considered the circumstances of acquisition of a right of way by prescription and said: ‘The real truth is that you do not consider the question of title to use, but the question of fact of user; you have to inquire whether the way was in . .

Cited by:
Cited – Graham v Philcox CA 1984
A right of way, originally granted in connection with a five year tenancy of a part of a house, was converted by section 62 into a permanent right of way on the conveyance of the freehold.
Lord Justice Purchas disagreed with the judge who had . .
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.
Updated: 10 October 2021; Ref: scu.252420

Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others: SC 14 Nov 2018

A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold interests, but again through a Facilities Agreement, purporting to grant easements over the estate equal to those granted to the leaseholders, but with no contribution to the costs. This appeal considered the extent to which the right to the free use of sporting and recreational facilities provided in a country club environment may be conferred upon the owners and occupiers of an adjacent timeshare complex by the use of freehold easements.
Held: (Lord Carnwath dissenting) The appeal succeeded but only in part
The grant of an easement here was novel, given the greater running costs and operational responsibilities, and the factors which tell against broad recognition of rights over such facilities as easements. However, the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well-settled conditions for easements (Ellenborough Park).
On the cross-appeal, the majority held that the Court of Appeal was wrong to limit the grant of rights to the facilities in existence at the time of the grant in 1981. The sporting and recreational facilities referred to in the Facilities Grant were bound to change significantly over time and the new indoor swimming pool was, once complete, a facility made within the complex.
Baroness Hale of Richmond PSC, Lord Kerr of Tonaghmore, Lord Sumption, Lord Carnwath, Lord Briggs JJSC
[2018] UKSC 57, UKSC 2017/0083, SC , [2019] 2 P and CR 3, [2019] 1 P and CR DG10, [2019] AC 553, [2019] 1 All ER 771, [2018] 3 WLR 1603, [2018] WLR(D) 708
Bailii, Bailii Summary, SC, SC Summary, SCS Summary Video, SC 2018 Jul 04 am Video, SC 2018 Jul 04 pm Video, SC 2018 Jul 05 am Video, WLRD
England and Wales
Citing:
Affirmed – In re Ellenborough Park CA 15-Nov-1955
Qualifying Characteristics ofr Easement
Parties claimed a public right to wander through the grounds of the park.
Held: No such right could have been granted or was properly claimed. Lord Evershed MR said: ‘There is no doubt, in our judgment, but that Attorney-General v. Antrobus . .
At First Instance – 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 . .
Appeal from (CA) – 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 . .
Cited – Pomfret v Ricroft 1845
it is not an objection to qualification as an easement that the right consists of or involves the use of a pump on the servient tenement . .
Cited – Duncan v Louch QBD 4-Feb-1845
A dominant owner of an easement has no obligation to repair or maintain the land over which the right of way is exercised.
An easement permitting the dominant owner to walk over all parts of the servient tenement purely for pleasure can exist . .
Cited – Mounsey v Ismay 20-Jan-1863
The inhabitants of Carlisle claimed a custom of holding horse races in May over land at Kingsmoor. The landowner’s counsel protested that the fields were arable land.
Held: Martin B: ‘It must be assumed that the custom has existed since the . .
Cited – Hill v Tupper 1-May-1863
The canal company had by deed granted the sole right to use the canal for pleasure boats to the plaintiff. The defendant disturbed that right by using the canal for the same purpose.
Held: The claim failed. The right under the contract was not . .
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 – 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 – Simpson v Godmanchester Corporation HL 27-Jul-1897
An easement, exercised for the benefit of the dominant estate, is not invalid merely because from the very nature of the right its exercise by the dominant estate confers some benefit upon other tenements.
The corporation of Godmanchester as . .
Cited – International Tea Stores v Hobbs ChD 25-Apr-1903
Farwell J considered the circumstances of acquisition of a right of way by prescription and said: ‘The real truth is that you do not consider the question of title to use, but the question of fact of user; you have to inquire whether the way was in . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – Keith v Twentieth Century Club Ltd ChD 1904
. .
Cited – Miller v Emcer Products Ltd CA 20-Dec-1955
An express term in a contract excludes the possibility of implying any term dealing with the same subject-matter as the express term. . .
Cited – Dunn v Blackdown Properties Ltd 1961
Application of the rule against perpetuities to expiration of rights of way. . .
Cited – Adam v Shrewsbury, Shrewsbury CA 28-Jul-2005
The neighbour parties disputed the existence of a right of way over one plot. The grant was for the use of a garage yet to be constructed, on ground to be excavated by the grantor, accessible only from a roadway which was only partly constructed, at . .
Cited – Jones v Pritchard ChD 6-Feb-1908
The grant of an easement ordinarily carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. However the grant of a right of way over a driveway cannot place on the servient owner the obligation to . .
Cited – Jones v Price 1965
Willmer LJ said: ‘a covenant to perform positive acts . . is not one the burden of which runs with the land so as to bind the successors in title of the covenantor: see Austerberry v. Oldham Corporation.’ and ‘ . . properly speaking, an easement . .
Cited – Carter, Carter v Cole, Cole CA 11-Apr-2006
Disputed right of way. The court recognised the right of the owner of a servient tenement to repair a roadway.
Longmore LJ said that step-in rights are, by definition, rights to reasonable access for maintenance of the servient tenement, . .
Cited – Riley v Penttila 20-Mar-1974
(Supreme Court of Victoria) The Court recognised as an easement the grant of land within a residential development ‘for the purposes of recreation’ over a garden or a park, in favour of residential lots, enthusiastically following the lead given in . .
Cited – City Developments v Registrar General of the Northern Territory 2-Jun-2000
(Supreme Court of the Northern Territory) – Hearing of preliminary point – whether purported grant of an easement an easement – easement has four essential criteria – easement does accommodate dominant tenement – the grant possessed all four . .
Cited – Dukart v District of Surrey and Others 1-May-1978
Supreme Court of Canada – The Court considered an easement allowing free access to the waters of the bay and recognised as easements the grant in favour of residential lots on a development plan of rights to use ‘foreshore reserves’ separating the . .
Cited – Blankstein, Fages and Fages v Walsh 1989
(High Court of Manitoba) Cottages were used for summer recreation. Though the acquisition of an easement by prescription to use adjoining land known as the ‘playground’ as a family recreational area was rejected on the facts, as the use was not as . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.628673

Gardner and Gardner v Davis and others: CA 15 Jul 1998

Three properties were dependent upon drainage through the plaintiff’s land. The soakaway system would not support increased usage. The appellant challenged an order denying an easement.
Held: The drainage easement was to be read according to the express words, construed within the context of the time when the easement was granted, and so that reasonable use was limited to the capacity of the drainage installed. Overflows of effluent onto the servient owner’s land from increased use were a nuisance and capable of restraint by injunction.
Lord Justice Mummery, Lord Justice May
Gazette 22-Jul-1998, [1998] EWCA Civ 1213
Bailii
England and Wales
Citing:
Cited – Ingram v Morecroft 1863
‘… if a man enter into a covenant to do a particular thing, however absurd, the covenantee is entitled to have the covenant performed; …’ . .
Cited – Wood v Saunders 1875
The dominant land at the time of sale contained a house ‘adapted for about twenty-five inmates, and only part of the drainage of the house rain into the ditch or moat’ on land retained by the vendor. The purchaser subsequently extended the house, . .
Cited – Jones v Pritchard ChD 6-Feb-1908
The grant of an easement ordinarily carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. However the grant of a right of way over a driveway cannot place on the servient owner the obligation to . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.144692

Cory v Davies: 1923

The second proposition in Wheeldon v Burrows is subject to exceptions, and reciprocal rights and reservations into leases should be implied.
Mr Justice P O Lawrence
[1923] Ch 95
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 by:
Cited – Kent and Another v Kavanagh and Another CA 2-Mar-2006
The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.239387

City Developments v Registrar General of the Northern Territory: 2 Jun 2000

(Supreme Court of the Northern Territory) – Hearing of preliminary point – whether purported grant of an easement an easement – easement has four essential criteria – easement does accommodate dominant tenement – the grant possessed all four characteristics – definition of easement – definition of recreation – no reason in law why easement cannot be granted for recreational purposes – intention of grantor to create large recreational area – encumbrance subject and conditional to registered easements – affects each section of land which receive benefit of the easement – test for an easement – recreational purpose is to be construed sensibly and reasonably in context of rural lakeside recreation – right conferred in respect of the grants of easements are in law easements
There was no reason in law why an easement could not be granted for recreational purposes.
Thomas J
(2000) 135 NTR 1, (2000) 156 FLR 1, [2000] NTSC 33
Austlii
Australia
Cited by:
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 – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.581419

Riley v Penttila: 20 Mar 1974

(Supreme Court of Victoria) The Court recognised as an easement the grant of land within a residential development ‘for the purposes of recreation’ over a garden or a park, in favour of residential lots, enthusiastically following the lead given in In re Ellenborough Park .
Gillard J
(1974) 30 LGRA 79, [1974] VR 547, [1974] VicRp 67
Austlii
Australia
Cited by:
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 – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.581350

Millman v Ellis: CA 1996

The defendant had sold part of his land to the claimant. A right of way was granted over a lane. The purchaser asserted that he had the use of a lay-by on the lane which would otherwise be dangerous. The vendor said the plan did not include a right over the lay-by.
Held: The criteria for establishing a quasi-easement were satisfied. Both lane and layby were covered in one unbroken tarmac surace, and the use was therefore continuous and apparent. The contrasting safety with and without the use of the layby was significant. The absence of any specific mention of the layby was not inconsistent with an implied grant. The wording of the grant did not exclude such an implied right.
Sir Thomas Bingham MR
[1996] 71 P and CR 158
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 – Sovmots Investments Ltd v Secretary of State for the Environment HL 28-Apr-1977
The section in the 1881 Act does not apply to a quasi-easement because ‘When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. . .
Cited – Borman v Griffith 1930
Maugham J said: ‘Where . . two properties belong to a single owner and are about to be granted and are separated by a common road, or where a plainly visible road exists over one for the apparent use of the other, and that road is necessary for the . .
Cited – Gregg v Richards 1926
. .

Cited by:
Cited – Hall and others v Save Newchurch Guinea Pigs (Campaign) and others QBD 17-Mar-2005
The claimants ran a guinea pig farm. They and their neighbours applied for injunctions and an exclusion zone to keep away the defendants who campaigned against the breeding of animals for research.
Held: The claimants had been subjected to a . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.190031

Dukart v District of Surrey and Others: 1 May 1978

Supreme Court of Canada – The Court considered an easement allowing free access to the waters of the bay and recognised as easements the grant in favour of residential lots on a development plan of rights to use ‘foreshore reserves’ separating the lots from a bay
The Supreme Court stated in its declaratory order that ‘the right so granted includes the right to promenade freely across the whole of the ‘Foreshore Reserves’ and not merely to cross directly from the edge or front of Lot 38 to the waters of Boundary Bay’
(1978) 86 DLR 609, [1978] 2 SCR 1039
Canlii
Canada
Cited by:
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 – 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 . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.581347

Jones v Pritchard: ChD 6 Feb 1908

The grant of an easement ordinarily carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. However the grant of a right of way over a driveway cannot place on the servient owner the obligation to keep the driveway in repair.
Parker J
[1908] 1 Ch 630, [1908] UKLawRpCh 23
Commonlii
England and Wales
Cited by:
Cited – Gardner and Gardner v Davis and others CA 15-Jul-1998
Three properties were dependent upon drainage through the plaintiff’s land. The soakaway system would not support increased usage. The appellant challenged an order denying an easement.
Held: The drainage easement was to be read according to . .
Cited – Westminster (Duke of) and others v Guild CA 30-Mar-1983
The landlord brought an action for non-payment of rent. The tenant sought to set off a failure by the landlord to repair the building of which his flat was part and which failure had caused him loss. The landlord said that it had no express duty to . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – 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 . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.185407

International Tea Stores v Hobbs: ChD 25 Apr 1903

Farwell J considered the circumstances of acquisition of a right of way by prescription and said: ‘The real truth is that you do not consider the question of title to use, but the question of fact of user; you have to inquire whether the way was in fact used, not under what title has it been used, although you must of course take into consideration all the circumstances of the case.’
Farwell J
[1903] 2 Ch 165, [1903] UKLawRpCh 74
Commonlii
England and Wales
Cited by:
Approved – Graham v Philcox CA 1984
A right of way, originally granted in connection with a five year tenancy of a part of a house, was converted by section 62 into a permanent right of way on the conveyance of the freehold.
Lord Justice Purchas disagreed with the judge who had . .
Cited – Wall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .
Cited – Lewis v Meredith 1913
Neville J discussed the attachment of an easement created under a leasehold interest becoming attached to the freehold interest: ‘Easement or right in the strict sense there could not be, for the common ownership precluded the acquisition of any . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.252418

Hill v Tupper: 1 May 1863

The canal company had by deed granted the sole right to use the canal for pleasure boats to the plaintiff. The defendant disturbed that right by using the canal for the same purpose.
Held: The claim failed. The right under the contract was not an easement but only a personal licence. It existed not for the accommodation and better enjoyment of the land but more the land was required to exploit the right. Bramwell B said that ‘it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee. This grant merely operates as a licence or covenant on the part of the grantors, and is binding on them as between themselves and the grantee, but gives him no right of action in his own name for any infringement of the supposed exclusive right.’
Pollock CB said: ‘I do not think it necessary to assign any other reason for our decision, than that the case of Ackroyd v Smith (1850) 10 CB 164 expressly decided that it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee.’
Bramwell B, Pollock CB
[1863] EWHC Exch J26, [1863] EngR 493, (1863) 2 H and C 121, (1863) 159 ER 51
Bailii, Commonlii
England and Wales
Cited by:
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Cited – Hall and Others v Mayor of London (on Behalf of The Greater London Authority) CA 16-Jul-2010
The appellants sought leave to appeal against an order for possession of Parliament Square on which the claimants had been conducting a demonstration (‘the Democracy Village’).
Held: Leave was refused save for two appellants whose cases were . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.189971

Wood v Wood: 15 Feb 1844

Where an estate is mortgaged, the equity of redemption, unless there appears a clear intention of making a new settlement, remains subject to the old uses, or to the trusts of the original settlement.
[1844] EngR 260, (1844) 7 Beav 183, (1844) 49 ER 1034
Commonlii
England and Wales

Updated: 08 October 2021; Ref: scu.304852

Regina v the Justices of Huntingdonshire: 25 Nov 1865

A valuer appointed under the Inclosure Act, 8 and 9 Vict. c. 118, s. 62, having given notice of intention to stop up a road from A to B, a notice of appeal, under s. 63, against the stopping up of a part of the road, is good; and the Quarter Sessions are bound to hear the appeal.
Quaere, whether the legal effect of the appeal, if successful, would be to leave
the whole road open.
[1865] UKLawRpKQB 28, (1865-1866) LR 1 QB 36
England and Wales

Updated: 08 October 2021; Ref: scu.653040

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 tenant. His family asserted a contract was concluded.
Held: There was no prospect of upholding the assertion that the solicitor’s actions bound his client landlord. A solicitor does not have apparent or implied authority to make a contract for the disposal or acquisition of an interest in land on behalf of his client.
In this case, and despite the absence of an application for summary judgment the judge had been right to raise the isue, and indeed it should have been raised earlier.
[1999] EWCA Civ 1759
Law of Property (Miscellaneous Provisions) Act 1989
England and Wales
Citing:
Cited – Javad v Aqil CA 15-May-1990
P in possession – tenancy at will Until Completion
A prospective tenant was allowed into possession and then made periodic payments of rent while negotiations proceeded on the terms of a lease to be granted to him. The negotiations broke down.
Held: The tenant’s appeal failed. It was inferred . .
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 – 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 – 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 – D’Silva v Lister House Development Ltd 1970
Even an unlawful sub-tenancy can have protection under Part II of the 1954 Act. The court described as fallacious the submission that section 74(1) does not extend to or answer the question whether the document has ever been delivered, saying: ‘The . .
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 – 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 – Eccles v Bryant and Pollock CA 1947
The Plaintiff contended that a letter written by the purchaser’s solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the . .
Cited – Yonge v Toynbee CA 1910
Solicitors conducted a whole series of interlocutory applications in the course of an action in ignorance of the fact that their client had been certified as being of unsound mind.
Held: When the action was ultimately aborted, they were held . .
Cited – Lockett v Norman-Wright 1925
As such, a solicitor does not have ostensible authority to conclude a contract for his client: ‘In the present case there was no evidence of any authority being conferred on the solicitors to make such a bargain, and I think that that fact is . .
Cited – Eccles v Bryant and Pollock CA 1947
The Plaintiff contended that a letter written by the purchaser’s solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the . .
Cited – Hollington Bros v Rhodes ChD 1951
A solicitor does not withoutmore have ostensible authority to conclude a contract for his client. . .
Cited – Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd CA 1964
The defendant company allowed one of its directors to act as the Managing Director and to give instructions to the Plaintiff to do work on its behalf.
Held: The fact that he had never been formally appointed as Managing Director was of no . .
Cited – McPhilemy v Times Newspapers Ltd and Others (2) CA 26-May-1999
The new Civil Procedure Rules did not change the circumstances where the Court of Appeal would interfere with a first instance decision, but would apply the new rules on that decision. Very extensive pleadings in defamation cases should now be . .

Cited by:
Cited – Padwick Properties Ltd v Punj Lloyd Ltd ChD 9-Mar-2016
The tenant had left the property, their solicitors writing informing the landlord that it had vacated the Property and asserting that ‘the security and safety of the Property will revert to your client.’ The keys were returned, and on the insolvency . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.146674

Creque v Penn: PC 27 Jun 2007

(British Virgin Islands
Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Carswell, Lord Mance
[2007] UKPC 44
Bailii
England and Wales

Updated: 08 October 2021; Ref: scu.258320

Warnborough Ltd v Garmite Ltd: ChD 12 Jan 2006

The claimant sought specific performance under a contract for sale of two leasehold properties. The defendant claimed inter alia that the agreement worked as a clog on the equity of the properties.
Richard Sheldon QC
[2006] EWHC 10 (Ch), [2006] 3 EG 121, [2006] 2 P and CR DG8, [2007] 1 P and CR 2
Bailii
England and Wales
Citing:
Cited – G and C Kreglinger v The New Patagonian Meat and Cold Storage Company HL 20-Nov-1913
Mortgagor’s collateral dvantage is not a clog
The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.341762

Regalian Properties Plc and Another v London Docklands Development Corporation: ChD 25 Jan 1995

Negotiations intended to result in a contract were expressly on the basis that each party was free to withdraw from the negotiations at any time, the costs of a party in preparing for the intended contract were incurred at its own risk and it was not entitled to recover them by way of restitution if for any reason no contract resulted. It was held that by the deliberate use of the words ‘subject to contract’ in their usual sense, each party had accepted that if no contract was concluded any resultant loss should lie where it fell.
Held: The costs of the failed negotiations were not recoverable. The phrase ‘subject to contract’ is so widely used that parties must be assumed to know its effect without having it explained.
Rattee J
Gazette 25-Jan-1995, [1995] 1 WLR 212, [1995] Ch 212
England and Wales
Cited by:
Cited – Gonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
Cited – Countrywide Communications Limited v ICL Pathway Ltd 1996
The court considered the authorities bearing on the question of whether or not a claim under a quantum meruit can successfully be made for work done in anticipation of a contract which does not materialise. Strauss J concluded: ‘I have found it . .
Cited – MSM Consulting Ltd v United Republic of Tanzania QBD 30-Jan-2009
The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.85943

J A Pye and Another v Graham and Another: ChD 14 Mar 2000

The fact alone of being prepared to take a licence of land would not defeat an application for adverse possession, but a request for a licence would be relevant. The adverse possession commenced from the time when the licence expired, given that a sufficient animus was then established. The reference in the section to the taking of action did not apply to an application to warn off the cautions made to the Land Registry which was not a court, and the application was not an application to recover land. Since the Grahams enjoyed factual possession of the land from January 1984, and adverse possession took effect from September 1984, the applicant company’s title was extinguished pursuant to the 1980 Act, and the Grahams were entitled to be registered as proprietors of the land. ‘[The Grahams] sought rights to graze or cut grass on the land after the summer of 1984, and were quite prepared to pay. When Pye failed to respond they did what any other farmer in their position would have done: they continued to farm the land. They were not at fault. But the result of Pye’s inaction was that they enjoyed the full use of the land without payment for 12 years. As if that were not gain enough, they are then rewarded by obtaining title to this considerable area of valuable land without any obligation to compensate the former owner in any way at all. In the case of unregistered land, and in the days before registration became the norm, such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it. It is reassuring to learn that the Land Registration Act 2002 has addressed the risk that a registered owner may lose his title through inadvertence. But the main provisions of that Act have not yet been brought into effect, and even if they had it would not assist Pye, whose title had been lost before the passing of the Act. While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend, this is a conclusion which I (like the judge [Neuberger J]…) ‘arrive at with no enthusiasm’.’
Neuberger J
Gazette 17-Feb-2000, Gazette 24-Feb-2000, Times 14-Mar-2000, [2000] Ch 676, [2000] 3 All ER 865
Limitation Act 1980 15(1) 17
England and Wales
Citing:
Distinguished – Walters v Webb 1870
. .
Cited – Vandeleur v Sloane 1919
. .

Cited by:
Appeal from – J A Pye (Oxford) Ltd and Another v Caroline Graham and Another CA 6-Feb-2001
Where a tenant under a grazing license had stayed over after the end of the tenancy, and had been refused a renewed licence, and had continued to graze the land for over twelve years, the mere overstaying was not enough to evidence an animus . .
At first instance – 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 . .
At first instance – J A Pye (Oxford) Ltd v The United Kingdom ECHR 15-Nov-2005
The claimants had been the registered proprietors of land, they lost it through the adverse possession of former tenants holding over. They claimed that the law had dispossessed them of their lawful rights.
Held: The cumulative effect of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.85085

Matthews v Walsall Metropolitan Borough Council: LT 13 Sep 2002

PRACTICE – admissibility of letter marked without prejudice and details of negotiations in an expert report – whether letter an assertion of rights or a negotiating document – held letter and details of negotiation inadmissible under the without prejudice rule.
[2002] EWLands CON – 38 – 2002
Bailii
England and Wales

Updated: 30 September 2021; Ref: scu.225716

A2 Housing Group v Spencer Taylor and others: LT 12 Jul 2007

LT LANDLORD AND TENANT – service charges – whether gardening and internal cleaning costs reasonably incurred – additional 25% deduction by LVT – use of LVT’s own expertise as an expert tribunal – whether non-disputed charges included in LVT’s award – disallowance by LVT of landlord’s costs of LVT proceedings – appeal allowed – Landlord and Tenant Act 1985 ss 19(1) and 20C.
[2007] EWLands LRX – 36 – 2006
Bailii
Landlord and Tenant Act 1985 19(1) 20C
England and Wales

Updated: 30 September 2021; Ref: scu.258711

Walker v Boyle: 1982

A property was sold subject to the National Conditions of Sale (19th edition). Condition 17(1) of the conditions provided that ‘no error, the statement or omission in any preliminary answer concerning the property . . shall annul the sale’. There had been a pre-existing boundary dispute with a neighbour which was not disclosed in the course of the preliminary enquiries before contract.
Held: The vendor was not entitled in equity to rely on this condition. The National Conditions of sale do not exclude liability for fraud.
As to the 1967 Act: ‘I do not regard condition 17 as satisfying that requirement in the circumstances of this case. Another way of putting it is that Mrs Boyle has not shown that it does satisfy that requirement.’
The court also refused relief for specific performance in view of the claimant’s innocent misrepresentation, even if that mistake was unilateral and not induced by the claimant’s misrepresentation: ‘It seems to me that the equitable barrier to specific performance extends not merely to matters of title where the vendor has failed to disclose defects known to him in his own title, but also to misrepresentation where the vendor has, albeit innocently, misdescribed the property or made some other misrepresentation about the property, when the true facts were within his own knowledge. A trifling misrepresentation where the truth would have had no effect on the purchaser and the purchaser would have nonetheless entered into the contract, rests in a different category because there the contract has not been induced by the misrepresentation, but here, as I find, the purchaser would reasonably have refused to contract unless the boundary dispute, if disclosed to him, had first been resolved. Therefore, it seems to me that on equitable principles and consistently with the authorities I have mentioned, and consistently also with the fairly recent decision of Walton J in Faruqi v English Real Estates Ltd [1979] 1 WLR 963, the vendor, Mrs Boyle, is not entitled in equity to rely on condition 17 in the circumstances of this case.’
Dillon J
[1982] 1 WLR 495, [1982] 1 All ER 634
Misrepresentation Act 1967 3
England and Wales
Cited by:
Cited – Cleaver and Others v Schyde Investments Ltd CA 29-Jul-2011
The parties had contracted for the sale of land. The purchaser secured the rescinding of the contract for innocent misrepresentation. A notice of a relevant planning application had not been passed on by the seller’s solicitors. The seller appealed . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.443307

Bourke v Davis: 1890

Kay J considered that a customary right over land might be confined to the inhabitants of a district.
Kay J
(1890) 44 Ch D 110
England and Wales
Cited by:
Cited – Edwards v Jenkins 1896
Application was made to register a customary right over land.
Held: The ‘locality rule’ applied. The inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land . .
Cited – Paddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.441214

Gledhill v Hunter: CA 5 Mar 1880

An action ‘to establish title to land,’ not claiming possession, is not an action ‘for the recovery of land,’ so as to require the leave of the Court, under Rules of Court, 1875, Order xvii., rule 2, for its joinder with another cause of action. Where the writ was indorsed for declaration of title, declaration that a lease was granted under a mistake, recovery of rents and profits, and a receiver, and the statement of claim asked also for possession.
Held: that this was an action for recovery of land and nothing else, and that there was no joinder of any cause of action which required the leave of the Court.
An action for ejectment from land was normally issued ‘to recover possession from a tenant’ or former tenant. An action against a trespasser, who did not actually dispossess the person entitled to possession, was based on trespass quare clausum fregit, physical intrusion onto the land. Nonetheless, where a trespasser exclusively occupies land, so as to oust the person entitled to possession, the cause of action must be for recovery of possession.
Whetstone v. Lewis not followed.
Sir George Jessel MR
(1880) 14 Ch D 492, [1880] UKLawRpCh 69
Commonlii
England and Wales
Cited by:
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.381712

Bourke v Davis: 1899

A public right of navigation over a river is ‘similar to a right of highway on land not covered by water.’ Before 1885, public rights of navigation did not exist over tributaries of the Thames where there was no prescriptive user.
Kay J
(1899) 44 Ch D 110
England and Wales
Cited by:
Cited – Rowland v The Environment Agency ChD 19-Dec-2002
Public rights of Navigation have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The claimant sought a declaration that rights of navigation over that . .
Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.187538

Special Case – James Mackintosh and Miss Emily Maria Mackintosh, Alexander Hay Miln and Others: HL 19 May 1873

In an entail of one of his estates a party bound himself and his heirs and executors to relieve the lands of his debts and obligations. Subsequently, in an antenuptial contract of marriage he burdened the entailed estate with an annuity to his widow. Held (reversing judgment of the First Division) that the heir of entail was entitled, out of the general estate, to relief of this annuity.
[1873] UKHL 447, 10 SLR 447
Bailii
Scotland

Updated: 29 September 2021; Ref: scu.652914

Chatham Extra, Local Board of Health of v Rochester Pavement and Road Commissioners: QBD 8 Nov 1865

Section 3 of 12 and 13 Vict. c. 87, – which enacts that where the trustees of any turnpike-road shall hereafter borrow, charge, or secure any sum of money on the credit of the tolls arising on such road, they shall out of the tolls, in priority of all payments except the interest, set apart 51. per cent, per annum on the sum borrowed, as a sinking fund towards repaying it, – does not apply to a case in which the trustees had borrowed a sum at 51. per cent, for the purposes of their roads before the passing of the act, and after the act passed, borrowed money at 41. Per cent., in order to pay off the original debt. Semble, by Cockburn, C.J., and Mellor and S
Cockburn, CJ Mellor Sehh JJ
(1865-1866) LR 1 QB 24, [1865] UKLawRpKQB 9
Commonlii
England and Wales

Updated: 29 September 2021; Ref: scu.653033

Clutterbuck v Brabant: CCP 24 Jan 1815

Where the concord of a fine by mistake varied in the number of messuages from the writ of covenant and praecipe, the Court refused to amend it in fieri and pass it, as being the agreement of the parties, who were still alive, unless they should all re-acknowledge it after the amendment.
[1815] EngR 472, (1815) 6 Taunt 1, (1815) 128 ER 931
Commonlii
England and Wales

Updated: 27 September 2021; Ref: scu.336282

Polden v Bastard: CEC 28 Nov 1865

A testatrix, at the date of her will, was the owner of two adjoining houses and premises; she occupied one herself, in the yard belonging to which was a pump, the other house was and has been for some time occupied by T. A., as her tenant, and he, with the knowledge of the testatrix, had been accustomed to go into the yard and draw water from the pump for the use of his house, there being no water supply on his premises. Under a devise of this house ‘as now in the occupation of TA’.
Held: that the right to the use of the pump did not pass.
(1865-1866) LR 1 QB 156, [1865] UKLawRpKQB 34
England and Wales
Citing:
Appeal from – Polden v Bastard QBD 13-Jun-1863
. .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.653044

William D R Scott Glendonwyn v Sir Robert Glendonwyn Gordon, Bart: HL 19 Mar 1873

X. was institute under a deed of entail of the lands of C., but the fetters did not bind her. She was also owner in fee of an estate of P. her general settlement she conveyed all her estate, heritable and moveable, and particularly the estate of P., to G., but nothing specially was mentioned as to the lands of C.
Held (affirming judgment), That it was competent to shew by the actings of X. in reference to the estate of C., that she believed she was prevented from disposing of that estate,
[1873] UKHL 2 – Paterson – 204
Bailii
Scotland

Updated: 27 September 2021; Ref: scu.652910

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 Dunedin said: ‘The criterion is in the question whether what is intended to be effected by the second contract is rescission or variation.’
Lord Parmoor said that the determining factor on which the appeal depended was the intention of the parties at the time when the second agreement was made.
Whether a variation amends the principal agreement or discharges and replaces it depends on the intention of the parties. To establish a discharge and replacement, ‘there should have been made manifest the intention in any event of a complete extinction of the first and formal contract, and not merely the desire of an alteration, however sweeping, in terms which are still subsisting’
Lord Dunedin, Lord Parmoor, Viscount Haldane
[1918] AC 1
England and Wales
Citing:
Approved – 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:
Applied – 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 – 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 . .
Adopted – British and Beningtons Ltd v North Western Cachar Tea Co Ltd HL 1923
The House looked at the effect of rescission of a contract: ‘It was, however, argued before your Lordships that . . the old contracts were discharged because a varied contract is not the old contract, and as you cannot have a new and varied contract . .
Cited – Jagdeo Sookraj v Buddhu Samaroo PC 12-Oct-2004
PC (Trinidad and Tobago) Each party claimed to have entered into a contract to purchase the same land. It was contended that one contract had been rescinded and replaced by another. The issue was whether this . .
Cited – United Dominions Corporation (Jamaica) Ltd v Shoucair PC 1969
(Jamaica) A moneylending law required, for the enforceability of a loan bearing interest at more than ten per cent, a written memorandum containing all the terms of the loan with the borrower’s signature. A bank lent money at nine per cent secured . .
Cited – Plevin v Paragon Personal Finance Ltd SC 29-Mar-2017
The court had ordered the respondent to pay the claimant’s costs. These were high because the solicitors had acted under a conditional fee agreement, and disproportionate to the funds at issue. The respondents challenged assignments of the original . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.219435