Category: Land

Dennis and Dennis v Ministry of Defence: QBD 16 Apr 2003

The applicants owned a substantial property near an airbase. They complained that changes in the patterns of flying by the respondents were a nuisance and sought damages. Walcot Hall was subjected to very high noise levels from military aircraft. The particular noise is loud and characterised by a very rapid onset with a corresponding startle effect. The question arose whether and in what circumstances a sufficient public interest can amount to a defence to a claim in nuisance.
Held: The noise was a continuing nuisance, and no question of limitation arose. The Harriers were not an oirdinary use of land, within the legal meaning of that phrase. Major developments in any society will interfere with the private enjoyment of nearby land. There was no statute here, only the fact that the noise had escalated. The public interest clearly demands that RAF Wittering should continue to train pilots, and a declaration should not be granted, and the losses were capable of financial satisfaction. There was an interference both with Article 1 and Article 8 rights, but damages would provide just satisfaction.

Judges:

The Honourable Mr Justice Buckley

Citations:

[2003] EWHC 793 (QB), Times 06-May-2003, [2003] 2 EGLR 121, [2003] 2 EGLR 121, [2003] NLJR 634, [2006] RVR 45, [2003] 19 EGCS 118

Links:

Bailii

Statutes:

European Convention on Human Rights 1 8

Jurisdiction:

England and Wales

Citing:

Cited – Dunton v Dover District Council 1977
References to decibels in actions for noise nusance, are not helpful unless compared with everyday sounds to which others can all relate. . .
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Sturges v Bridgman CA 1879
The character of the neighbourhood in which the plaintiff lives should, for the law of nuisance, include established features: ‘whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the . .
Cited – Rushmer v Polsue and Alfieri Limited CA 1906
The court considered the question of whether excess noise could constitute a nuisance.
Held: The court rejected the argument that a resident of a district specially devoted to a particular trade cannot complained of nuisance by noise caused by . .
Cited – Polsue and Alfieri v Rushmer HL 1907
The House approved a decision that a person purchasing property in an industrial district may be unable to claim for noise nuisance. Lord Loreburn LC said that (i) whether an activity gives rise to a nuisance may depend on the character of the . .
Cited – Southwark London Borough Council v Mills/Tanner; Baxter v Camden London Borough Council HL 21-Oct-1999
Tenants of council flats with ineffective sound insulation argued that the landlord council was in breach of the covenant for quiet enjoyment in their tenancy agreements.
Held: A landlord’s duty to allow quiet enjoyment does not extend to a . .
Cited – Cambridge Water Company v Eastern Counties Leather Plc HL 9-Dec-1993
The plaintiffs sought damages and an injunction after the defendant company allowed chlorinated chemicals into the plaintiff’s borehole which made unfit the water the plaintiff itself supplied.
Held: The appeal was allowed. Liability under . .
Cited – Thames Water Utilities Limited v Marcic CA 7-Feb-2002
The claimant owned land over which sewage and other water had spilled from the appellant’s sewage works. His claim having been dismissed under Rylands v Fletcher, and there being no statutory means of obtaining compensation, the judge was asked to . .
Cited – Allen v Gulf Oil Refining Ltd HL 29-Jan-1980
An express statutory authority to construct an oil refinery carried with it the authority to refine. It was impossible to construct and operate the refinery upon the site without creating a nuisance. Lord Wilberforce said: ‘It is now well settled . .
Cited – Powell and Rayner v The United Kingdom ECHR 21-Feb-1990
The applicants complained of the noise generated by Heathrow Airport saying that it affected their human rights to enjoy their private life and possessions.
Held: Whether the case was analysed in terms of a positive duty on the state to take . .
Cited – Hatton and Others v United Kingdom ECHR 2-Oct-2001
The appellants claimed that the licence of over-flying from Heathrow at night, by making sleep difficult, infringed their rights to a family life. The times restricting over-flying had been restricted. The applicants’ complaints fell within a . .
Cited – Farley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
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 – Kennaway v Thompson CA 30-Apr-1980
The plaintiff’s property adjoined the defendant’s boating lake over which the defendant had, over several years, come to run more and more motor boat sports events. The trial judge had found that the noise created by the racing was an actionable . .

Cited by:

Cited – Watson and others v Croft Promo-Sport Ltd CA 26-Jan-2009
The claimants were neighbours of the Croft motor racing circuit. They alleged nuisance in the levels of noise emanating from the site. The defendants denied nuisance saying that the interference was deemed reasonable since they operated within the . .
Cited – Dobson and others v Thames Water Utilities Ltd and Another CA 29-Jan-2009
The claimants complained of odours and mosquitoes affecting their properties from the activities of the defendants in the conduct of their adjoining Sewage Treatment plant. The issue was as to the rights of non title holders to damages in nuisance . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Land, Human Rights

Updated: 25 October 2022; Ref: scu.181380

Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Others: ChD 31 Mar 1999

A consent to a mortgage on a property, allowed a bank to substitute a second charge for the first, without the owners consent, but this was limited to the extent and value of the first charge. There was no argument to limit the effect of the second charge to an equitable charge.

Citations:

Times 31-Mar-1999, Gazette 19-May-1999

Jurisdiction:

England and Wales

Citing:

Applied – Equity and Law Home Loans Ltd v Prestidge CA 1992
A house was bought in the name of one partner in an unmarried couple. It was subject to a mortgage, and the non-owner contributed a capital sum. The landowner later remortgaged for a larger sum, but without the partner’s consent. The landowner then . .
See Also – Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Others (No 4) ChD 13-Jun-2000
An application to the European Court of Human Rights was not an appeal. Where it was clear that any decision there would not affect the issues between the parties, there was no reason to suspend enforcement of the order which had given rise to the . .

Cited by:

See Also – Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Others (No 4) ChD 13-Jun-2000
An application to the European Court of Human Rights was not an appeal. Where it was clear that any decision there would not affect the issues between the parties, there was no reason to suspend enforcement of the order which had given rise to the . .
Lists of cited by and citing cases may be incomplete.

Banking, Land

Updated: 25 October 2022; Ref: scu.83126

Farrell v First National Bank Plc: CA 26 Jun 2001

The applicant had set out to purchase a property, paying by instalments over several years. Part way through he secured a transfer of the property, and gave a charge to the lender. Later he defaulted on payments to the lender. In the meantime, a compulsory purchase order was made, and the question arose as to whether the applicant had had a sufficient degree of occupation to qualify for compensation. The Lands Tribunal found he had not a sufficient interest on the basis of his defaulting under the mortgage. The claimant’s appeal was successful. The tribunal had erred in giving weight to the defaults, and not allowing for the fact of his occupation, and the history of payments made before the compulsory purchase order.

Citations:

Gazette 05-Jul-2001, [2001] EWCA Civ 1107, [2002] RVR 11

Links:

Bailii

Statutes:

Housing Act 1985 Sch 24

Jurisdiction:

England and Wales

Land

Updated: 25 October 2022; Ref: scu.80477

Robertson v Norris: 1857

A mortgage sale for purposes other than merely to recover payment of the debt was a ‘fraud on a power’.

Judges:

Stuart V-C

Citations:

(1857) 4 Jur NS 155

Jurisdiction:

England and Wales

Cited by:

Disapproved – Nash v Eads CA 1880
Sir George Jessel MR: ‘The mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the Court could not look into his motives for so doing. If he had a right to sell on June 1, and he then . .
Not followed – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 24 October 2022; Ref: scu.241333

The Secretary of State for Transport v Christos, Christos: CA 25 Jul 2003

Judges:

Lord Justice Mummery Lord Justice Sedley The Vice-Chancellor

Citations:

[2003] EWCA Civ 1073

Links:

Bailii

Statutes:

Channel Tunnel Rail Link Act 1996

Jurisdiction:

England and Wales

Cited by:

See Also – Christos and Another v Secretary of State for the Environment, Transport and the Regions LT 11-Nov-2003
LT COMPULSORY PURCHASE – Compensation – dwellinghouse and adjoining land – whether property value agreed – whether acquiring authority estopped from denying that the value is the ‘agreed’ figure – whether damage . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 24 October 2022; Ref: scu.184864

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) what that duty amounted to; and (iii) whether the appellants were in breach of it.’ A retaining wall had collapsed over the neighbour below’s land. Its height had been increased beyond , by a predecessor in title of the upper land.

Judges:

Arden, Christopher Clarke, Bean LJJ

Citations:

[2015] EWCA Civ 30, [2015] WLR(D) 34, [2015] 1 WLR 4081

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Ilford Urban District Council v Beal and Judd 1925
A defendant land owner is not liable in nuisance to a property below them when they had neither created any nuisance nor continued it when they knew or ought to have known that their property constituted a nuisance or hidden danger to the properties . .
Cited – St Anne’s Well Brewery Co v Roberts 1928
. .
Cited – 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 . .
Cited – Wilkins v Leighton 1932
Luxmoore J said that ‘one of the most normal uses of land’ (for the purposes of the Rylands v. Fletcher doctrine) ‘ . . is to put buildings on it.’ . .
Lists of cited by and citing cases may be incomplete.

Negligence, Land

Updated: 24 October 2022; Ref: scu.541955

Hunt v Soady: CA 26 Apr 2007

The parties lived together and held the property as beneficial joint tenants. After the split up and the claimant let the house, she sought an order for its sale, and the appellant defendant sought an order that he should take the equity in the property. The joint tenancy had been severed. The defendant said that they had agreed that he should take the full proceeds if he discharged the arrears under the mortgage. She denied that any agreement was completed, and that the appellant had in any event not satisfied his conditions.
Held: The appeal failed.

Judges:

Mummery LJ, Lawrence Collins LJ, Sir Paul Kennedy

Citations:

[2007] EWCA Civ 366

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 22 October 2022; Ref: scu.251502

Hertfordshire County Council v Secretary of State for the Department of Environment Food and Rural Affairs: CA 14 Dec 2006

The court considered the extinguishment of footpaths after provision had been made voluntarily for alternative footpaths.
Held: A footpath should not be extinguished until the new footpath had been designated. Such arrangements should not be left contingent on uncertain future events.

Judges:

Lord Justice Ward, Lord Justice Wall and Lord Justice Richards

Citations:

[2006] EWCA Civ 1718, Times 12-Jan-2007

Links:

Bailii

Statutes:

Highways Act 1980

Jurisdiction:

England and Wales

Land

Updated: 22 October 2022; Ref: scu.247351

Anfield (UK) Ltd v Bank of Scotland Plc and Others: ChD 24 Sep 2010

The court was asked as to the remedy of subrogation as it affects the priority of charges.

Judges:

Proudman J

Citations:

[2010] EWHC 2374 (Ch), [2010] 48 EG 86, [2010] 41 EG 126 (CS), [2011] 1 All ER 708, [2011] 1 All ER (Comm) 929, [2011] 1 WLR 2414, [2010] 3 EGLR 75, [2010] NPC 96

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Pickenham Romford Ltd v Deville ChD 31-Jul-2013
The claimant company’s administrators sought an order to have vacated unilateral notices entered against land titles registered to the claimant. The court now gave its reasons for making the order as requested by way of summary relief. The notices . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 21 October 2022; Ref: scu.424265

Reed v Madon: ChD 1989

The existence of exclusive rights of burial gives the owner of a body a right which is to be equated with a right of property, interference with which is actionable
Morritt J described an exclusive right of burial arising under the 1847 Act as something to be equated with a right of property but found it unnecessary to decide whether it was an interest in land.

Judges:

Morritt J

Citations:

[1989] 2 All ER 431, [1989] Ch 408

Statutes:

Cemeteries Clauses Act 1847

Jurisdiction:

England and Wales

Cited by:

Cited – HM Coroner for the Eastern District of London, Regina (On the Application of) v Sutovic Admn 31-Jul-2009
The deceased had died in Serbia, but was buried in Acton. A second inquest had been ordered on the request of the respondent, and an exhumation licence granted for the purposes of a second post mortem examination. The respondent had refused her . .
Cited – Brookwood Park Ltd v Guney and Others ChD 29-Jul-2014
The parties disputed whether the defendants, trustees of a local charitable Turkish trust providing funeral service, had acquired an exclusive rights of burial within an area of the claimants’ cemetery.
Held: There were signficant deficiencies . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Land

Updated: 21 October 2022; Ref: scu.371290

Palfrey v Wilson and Another: CA 15 Feb 2007

The parties disputed the ownership of a wall between their properties. The claimants appealed an order finding title by adverse possession. The parties had spent a huge and disproportionate sum on legal fees in the dispute.
Held: The appeal was in effect against the award of costs. The appellant had been required to bear the bulk of costs after refusing a reasonable offer of compromise. The order was correct. Where a point would be academic to the outcome of the trial, there was no human right for a party to have that academic point decided.

Judges:

Tuckey LJ, Arden LJ, Lawrnce Collins LJ

Citations:

Times 05-Mar-2007, [2007] EWCA Civ 94

Links:

Bailii

Jurisdiction:

England and Wales

Land, Limitation

Updated: 21 October 2022; Ref: scu.248830

F Cross and Sons Ltd v Spencer (VO) 22: LT 17 Jan 2000

RATING – annual value – valuation – 1990 and 1995 rating lists – car showroom in cul-de-sac in village outside Doncaster – comparables – whether discount for size and mixed age – appropriate discount for poor location and layout – whether further discount to reflect absence of tenant competition – R.V. reduced from pounds 46,000 to pounds 39,500.

Citations:

[2000] EWLands RA – 22 – 1998

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – F Cross and Sons Ltd v Spencer (VO) 21 LT 17-Jan-2000
RATING – annual value – valuation – 1990 and 1995 rating lists – car showroom in cul-de-sac in village outside Doncaster – comparables – whether discount for size and mixed age – appropriate discount for poor location and layout – whether further . .
See Also – F Cross and Sons Ltd v Spencer (VO) 20 LT 17-Jan-2000
RATING – annual value – valuation – 1990 and 1995 rating lists – car showroom in cul-de-sac in village outside Doncaster – comparables – whether discount for size and mixed age – appropriate discount for poor location and layout – whether further . .
See Also – F Cross and Sons Ltd v Spencer (VO) 19 LT 17-Jan-2000
RATING – annual value – valuation – 1990 and 1995 rating lists – car showroom in cul-de-sac in village outside Doncaster – comparables – whether discount for size and mixed age – appropriate discount for poor location and layout – whether further . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 21 October 2022; Ref: scu.225562

White v Lynch: QBD 7 Jul 2011

The claimant was landlord of the tenant’s restaurant property. He sought an injunction to require the defendant to comply with planning permissions requiring the premises to close at midnight.

Judges:

Edwards-Stuart J

Citations:

[2011] EWHC 1664 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Planning, Land

Updated: 21 October 2022; Ref: scu.441883

Lynari Properties Ltd v Shortdean Place (Eastbourne) Residents Association Ltd: LT 5 Aug 2003

LEASEHOLD ENFRANCHISEMENT – collective enfranchisement – land and rights – whether land over which tenants have common rights should be transferred to nominee purchaser or permanent rights granted – power of LVT to order transfer of land where permanent rights offered by landlords – price – whether addition should be made for prospective value of additional parking – appeal successful in part on first ground and dismissed on second ground – Leasehold Reform, Housing and Urban Development Act 1993, ss1(1) (2) (3) (4) and (7), 3, 13(1) (3 )and (12), 21 (1) (3) (4) and (8), 91 (1)(2) and (3), Schedules 5 and 6 paras 5, 10 and 11.

Citations:

[2003] EWLands LRA – 45 – 2002

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 20 October 2022; Ref: scu.225759

Attorney-General v Hanwell Urban District Council: 1900

Where a local authority acquires land for one purpose, it cannot use the land for a different purpose unless authorised to do so by statute. The property had actually been conveyed to the council but the council was restrained from using the property for a hospital when it had been acquired for a sewage works.

Citations:

[1900] 2 Ch 377, [1900] LJR 39

Jurisdiction:

England and Wales

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

Land, Local Government

Updated: 19 October 2022; Ref: scu.648249

In Re Edis’ Declaration of Trust: 1972

The Artists’ Rifles took a building lease of land in 1888, on which they constructed a drill hall financed at least in part by public subscription. They acquired the freehold 10 years later. The drill hall remained in use for some 70 years, and further public money was spent on its maintenance. The power of a volunteer corps to acquire land was conferred by section 1 of the Military Lands Act 1892. But that power was a power to acquire land ‘with the consent of the Secretary of State’. There was no direct evidence that the consent of the Secretary of State had been obtained.

Judges:

Goulding J

Citations:

[1972] 1 WLR 1135

Jurisdiction:

England and Wales

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

Land

Updated: 19 October 2022; Ref: scu.648252

Day, Regina (on The Application of) v Shrewsbury Town Counci and Another: Admn 19 Dec 2019

The court was asked whether the council held land as public open space. Its predecessor had acquired the land for that purpose in 1926, and had used it as such. During the war, part of the land had been temporarily appropriated for allotment purposes under powers contained in Defence Regulations. By the late 1970s the land had fallen into disuse. The council operated a tree nursery on that part of the land for some 30 years, but it closed in the late 1990s. The council proposed to grant planning permission for house building on the land. An officer’s report presented to the relevant committee expressed the view that the land was not held as public open space; and that it was separate from the remainder of the recreation ground. Based on that report the council granted planning permission for housing.
Held: The decision was set aside.
Part of her reasoning was based on the inadequate inquiries that had been made before concluding that the land was not held a public open space. She found that the land had been originally acquired as public open space. She then went on to consider whether there had been any change in that state of affairs. The question she posed was whether the land had been appropriated for uses other than public recreation. Having set out the statutory powers of appropriation, and some of the case law, she said: ‘If Shropshire Council had considered the application of these legal principles to the evidence in this case, it would have been very likely to conclude that, aside from the temporary war time allocation allotments, there had been no formal appropriation of any part of the Greenfields Recreation Ground to a purpose other than recreational use. There was no evidence of a resolution by the Borough Council or Town Council that a portion of the Recreation Ground was no longer required for recreational purposes and should be appropriated for another use. Nor was there any evidence that the formal procedures for appropriation had been followed. There was no evidence of ministerial approval for appropriation under the previous legislation, nor formal notices advertising proposed appropriation and consideration of objections under the LGA 1972, as amended.
In my view, it is very likely that the Borough Council was authorised to appropriate a portion of the recreation ground for use as temporary allotments during World War II. Mr Goodman’s research revealed that the Defence (General) Regulations 1939 conferred on local authorities a temporary power to allocate its land for use as allotments, including land forming part of a park or open space, as part of the ‘Dig for Victory’ project. The temporary power was revoked by section 5(1) of the Emergency Laws (Miscellaneous Provisions) Act 1953. Section 5(1) also made provision for local authorities to let land for the purpose of allotment gardens, ‘notwithstanding anything in any Act . . . or any trust or covenant or restriction affecting the land’. However, there was no evidence that the Borough Council ever resolved to exercise its powers under the 1953 Act to continue to let the land as allotments on a more permanent basis.’
There was, therefore, no evidence either of a formal decision by the council; nor evidence of satisfaction of any of the conditions required to be fulfilled before a lawful appropriation could be made. The mere fact that the land had been used for other purposes (including as allotments and as a tree nursery) was not enough.

Judges:

Mrs Justice Lang DBE

Citations:

[2019] EWHC 3539 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

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

Planning, Land, Local Government

Updated: 19 October 2022; Ref: scu.648115

The Secretary of State for Transport v Curzon Park Ltd and Others: UTLC 10 Feb 2020

Compensation – Planning Permission – preliminary issue – appeal against certificate of appropriate alternative development – whether certificates granted for adjoining sites acquired for same scheme, or applications for certificates for such sites, may be taken into consideration when determining prospect of planning permission on cancellation assumptions

Citations:

[2020] UKUT 37 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 19 October 2022; Ref: scu.647077

Adamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council: Admn 9 May 2019

The Court was asked whether the defendant local authority (the council) was obliged to obtain the consent of the minister before deciding to dispose of certain land in its area currently in use as allotments by the claimant, Mr Adamson, and others. That depends on whether the council has ‘appropriated’ that land for use as allotments within section 8 of the Allotments Act 1925, as amended. If it has, it may not dispose of the land without the consent of the minister.
Held: The land had been appropriated for that purpose in 1935 when, as part of a town planning scheme, the council decided to zone the land for allotments.

Judges:

The Hon Mr Justice Kerr

Citations:

[2019] EWHC 1129 (Admin)

Links:

Bailii

Statutes:

Allotments Act 1925

Jurisdiction:

England and Wales

Cited by:

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

Land, Local Government

Updated: 17 October 2022; Ref: scu.637773

Lancashire County Council, Regina (on The Application of) v Secretary of State for Environment, Food and Rural Affairs and Another: CA 12 Apr 2018

The court was asked: ‘Did the concept of ‘statutory incompatibility’ defeat an application for the registration of land as a town or village green under section 15 of the Commons Act 2006? ‘ At first instance, the judge had held that he could not properly interfere with the inspector’s conclusion.
Held: The CA agreed with the court at first instance

Judges:

Rupert Jackson, Lindblom, ThirlwallLJJ

Citations:

[2018] EWCA Civ 721

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Lancashire County Council v The Secretary of State for The Environment, Food and Rural Affairs and Another Admn 27-May-2016
Ouseley J he said that he would have arrived at a different conclusion from the Inspector as to the purpose for which the Authority had acquired the land at issue; but considered that that did not entitle him to interfere with the inspector’s . .

Cited by:

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

Land, Local Government, Planning

Updated: 17 October 2022; Ref: scu.608721

Malpass, Regina (on The Application of) v The County Council of Durham: Admn 25 Jul 2012

The question was whether the council held land as open space, either under the Public Health Act 1875 or under the Open Spaces Act 1908. The title deeds under which the council acquired the land in 1936 did not state the purpose for which it had been acquired. The council relied on a subsequent deed dated 1964. That deed recited that ‘the Council have been requested to put on record the purposes for which the lands are to be used and the Council have decided so to do by this Deed’. It then purported to declare that the land was ‘held by the Council under its statutory powers for the benefit or interest of the Public as Open Spaces for the recreation of the Public or for Public Walks Parks and Pleasure Grounds’. Consistently with the deed the land was used for that purpose for many years. In the course of a non-statutory inquiry the inspector decided that the deed amounted to an appropriation.
Held: HHJ Kaye QC did not agree. He accepted a submission that: ‘It was insufficient merely to state that the land was ‘in practice’ held for a purpose which was not inconsistent with the new, informally appropriated, purpose. To be a valid appropriation to the stated use, the local authority must have concluded that the land subject to the appropriation was ‘not required’ for its existing purposes (see Local Government Act 1933, ss 163, 165). No such conclusion is recorded in the 1964 Deed or elsewhere nor does the 1964 Deed declare it was appropriating the land to a different purpose. Moreover, to take effect as an appropriation from one use to another the formal statutory mechanisms of the Local Government Act 1933 needed to be complied with and ministerial approval (at that time) was needed. It was apparent none of the formalities had been observed. All this is unsurprising given the inspector was relying on and treating the 1964 Deed as an informal process.’

Judges:

HHJ Kaye QC

Citations:

[2012] EWHC 1934 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

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

Land, Local Government

Updated: 17 October 2022; Ref: scu.463281

Barkas v North Yorkshire County Council: CA 23 Oct 2012

The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of right’?’ The appellant now appealed on an argument not put before the judge at first instance.
Held: The appeal failed. Sullivan LJ said: ‘The Field was ‘appropriated for the purpose of public recreation’ by the UDC and its successor the Borough Council under an express statutory power to provide and thereafter maintain it as a recreation ground. Throughout the 20 year period the local inhabitants indulged in lawful sports and pastimes on the Field by right and not as of right.’
Commenting on the case of Beresford, Sullivan LJ said: ‘I confess that I find it difficult to understand why the statutory approval of the corporation’s new town plan 1973 by the minister, which had the effect of granting planning permission for the development of the land as ‘parkland/open space/playing field’, when coupled with the subsequent laying out and grassing over of the land, was not sufficient to amount to an ‘appropriation’ of the land as recreational open space in the sense in which Lord Walker used that word.’

Judges:

Richards, Sullivan, McFarlane LJJ

Citations:

[2012] EWCA Civ 1373, [2013] 1 WLR 1521, [2012] WLR(D) 306, [2013] 1 P andCR 8, [2013] 1 EGLR 1, [2013] 2 EG 68, [2012] 44 EG 95, [2013] BLGR 32

Links:

Bailii

Statutes:

Commons Act 2006 15

Jurisdiction:

England and Wales

Citing:

Appeal from – Barkas, Regina (on The Application of) v North Yorkshire County Council and Scarborough Council Admn 20-Dec-2011
The claimants sought to have registered as a town or village green land in Whitby which had been provided as a playing field by the Local Authority since 1934. The inspector had found that the use had not been ‘as of right’ as required by the 2006 . .
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – Hall v Beckenham Corporation 1949
A claim was made in nuisance against the local authority, the owner of a public park, in which members of the public flew noisy model aircraft.
Held: The local authority were not liable as the occupiers of the park for an alleged nuisance that . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .

Cited by:

Appeal from – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Cited – 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.
Lists of cited by and citing cases may be incomplete.

Land, Local Government

Updated: 17 October 2022; Ref: scu.465109

Goodman, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs: Admn 30 Jul 2015

The local council had acquired land for open space purposes. It subsequently appropriated the land for industrial and employment purposes. But the land continued to be used for recreation. On an application to register the land as a town or village green, the inspector held that it could be inferred from the council’s conduct that it had re-appropriated the land to open space use, alternatively, it had impliedly granted permission for lawful sports and pastimes to be carried out on the land.
Held: The decision was quashed. Under section 163 of the 1933 Act (and now section 122 of the Local Government Act 1972) the local authority must decide whether or not the land is required for the purpose for which it is held, it must carry out what has been described as a conscious deliberative process. Thus the suggestion that an appropriation can be inferred from use alone is problematic.
Dove J said: ‘First, section 122(1) contains no prescribed formula for the procedure to be adopted when a council appropriates land from one purpose to another. It does however need the council to determine that it no longer requires the land for the purpose for which it was holding it up to the point of that appropriation.’
Dove J continued: ‘The difficulty with that suggestion is the need for the authority, when exercising the power under section 122 of the 1972 Act, to be satisfied that the land ‘is no longer required’ for the purpose for which it is held. That requires some conscious deliberative process so as to ensure that the statutory powers under which the land is held is clear and appropriation from one use to another cannot, in my view, be simply inferred from how the council manages or treats the land.’

Judges:

Dove J

Citations:

[2015] EWHC 2576 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

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

Planning, Land, Local Government

Updated: 17 October 2022; Ref: scu.552359

Fisher, Re Dayspring: LT 30 Jun 2008

LT RESTRICTIVE COVENANT – modification – dwellinghouse – restrictions preventing erection of more than one dwellinghouse or bungalow – application to modify to permit two or three dwellinghouses – whether restrictions obsolete – whether proposed user reasonable – whether restrictions secured practical benefits of substantial value or advantage – whether discharge would cause injury – application refused – Law of Property Act 1925 s84(1)(a), (aa) and (c).

Citations:

[2008] EWLands LP – 31 – 2006

Links:

Bailii

Statutes:

Law of Property Act 1925 84(1)(a) 84(aa) 84(c)

Jurisdiction:

England and Wales

Land

Updated: 16 October 2022; Ref: scu.278605

Thames Water Plc v Handcock (Valuation Officer): LT 18 Aug 2008

LT RATING – plant and machinery – sludge tank scrapers in sewage disposal works – whether rateable – principal beam element held not to be support or bridge or walkway and not a structure or in the nature of a structure – handrail attached to beam held not to be structure or in the nature of a structure – appeal allowed – Valuation for Rating (Plant and Machinery) (England) Regulations 2000 reg 2, Sch Class 4 Table 3.

Citations:

[2008] EWLands RA – 87 – 2006

Links:

Bailii

Jurisdiction:

England and Wales

Land, Rating

Updated: 16 October 2022; Ref: scu.278620

Kent County Council v Upchurch River Valley Golf Course Limited: Admn 21 Nov 1997

The defendants had been acquitted of obstructing a public highway across their golf course. The authority appealed.
Held: The obstruction was deliberate. If the defendants wanted to challenge the status of the pathway on the definitive map, then they should do so by proper means.

Citations:

[1997] EWHC Admin 1035

Links:

Bailii

Statutes:

Highways Act 1990 130

Jurisdiction:

England and Wales

Citing:

Cited – Arrowsmith v Jenkins 1963
Lord Parker CJ said that ‘wilfully’ in the context of an accusation of wilfully obstructing a highway means ‘intentionally as opposed to accidentally, that is, by an exercise of his or her free will’ . .
Lists of cited by and citing cases may be incomplete.

Land, Local Government

Updated: 14 October 2022; Ref: scu.137980

Rudra v National and Provincial Building Society; Stickley and Kent (Risk Management Unit) Ltd: CA 22 Aug 1997

Before the auction, the estate agents had signed a contract to sell the house to the claimant. The Society, as mortgagees, said that the agents did not have authority to bind it, and that the contract did not sufficiently identify the property so as to constitute a memorandum of the sale under the 1989 Act, and refused to complete. He sought damages from the agent. The claimant sought to bring in other evidence to join the memorandum with the special conditions of sale.
Held: The proposed amendment to the pleadings raised an arguable point of law. Leave to appeal was given.

Citations:

[1997] EWCA Civ 2310

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act l989 2

Jurisdiction:

England and Wales

Citing:

Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Williams v Attridge Solicitors (a Firm) CA 8-Jul-1997
The solicitor-defendants were seeking to prove a negative and to show at the very outset of the proceedings that the claim should be struck out without the need for any further inquiry. The court considered the admission of new evidence on an appeal . .

Cited by:

leave to Appeal – Rudra v Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited CA 26-Feb-1998
The parties disputed whether a contract had been entered into for the sale of land, and whether new evidence could be entered on an appeal against a strike out. The estate agents had signed a contract as agents for the mortgagee in possession, but . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency, Land

Updated: 14 October 2022; Ref: scu.142708

Martin v Lipton and Others (Restrictive Covenants – Modification): UTLC 14 Jan 2020

RESTRICTIVE COVENANTS – MODIFICATION – restriction to one dwellinghouse per plot on small estate – modification sought to permit one additional house on largest plot – whether restriction secured practical benefit of substantial value or advantage – whether modification would set a damaging precedent – whether compensation payable for short term disruption caused by building works – application allowed – compensation for temporary disturbance payable to some objectors – Law of Property Act 1925, s.84(1)(aa) and (c).

Citations:

[2020] UKUT 8 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 14 October 2022; Ref: scu.647074

Re Ocensa Pipeline Group Litigation: TCC 27 Jul 2016

This litigation is brought by 109 claimants in respect of 73 farms, each of whom claims that the Ocensa pipeline caused damage for which he or she should be compensated. It is brought in England because the Defendant was at the relevant time an English subsidiary of BP and was involved in the Ocensa project. The substantive claims are subject to the Colombian law of torts and contract. The State of Colombia formally recognises the public benefit attaching to oil pipeline projects and has established a regulatory legal framework that reflects the tension between public benefit and private detriment to which I have already referred. Whether and to what extent that framework creates, limits or excludes private law rights is only one of the elements of Colombian law affecting the outcome of this litigation.

Judges:

Stuart-Smith J

Citations:

[2016] EWHC 1699 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 13 October 2022; Ref: scu.567837

De Zwarte Band and Another v Kanhai and Another: PC 23 Dec 2019

(Trinidad and Tobago) Appeal by two judgment creditors against a stay imposed by the Trinidad and Tobago Court of Appeal upon an order for the sale of property over which they have charges.

Judges:

Lord Wilson, Lady Black, Lord Briggs, Lady Arden, Sir Rupert Jackson

Citations:

[2019] UKPC 48

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 12 October 2022; Ref: scu.646835

Sinclair v Fletchell’s Trustees and Others: HL 15 Apr 1878

Held (rev. judgment of the Court of Session), in a claim by an overpaying heritor under an interim locality against the representatives of a heritor who had been exempted from all payment under the interim locality, and who had ceased to be a heritor in the parish more than forty years before the claim for repetition was made, that the negative prescription applied and extinguished the ground of the claim.

Citations:

[1878] UKHL 522

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 12 October 2022; Ref: scu.646304

AM v SS: FD 19 Mar 2014

Preliminary questions relating to the ownership and beneficial interest of the parties in three properties

Judges:

Colreridge J

Citations:

[2014] EWHC 2887 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – AM v SS FD 21-Nov-2013
Application by a wife for a Legal Services Order in the course of heavily contested financial remedy proceedings. . .

Cited by:

See Also – AM v SS FD 31-Mar-2014
The court considered perennial and intractable problem of the proper weight to give to valuable resources which do not belong to one of the parties to the litigation but to e.g. a parent or family trust . .
Lists of cited by and citing cases may be incomplete.

Family, Land

Updated: 12 October 2022; Ref: scu.539785

R and R Fazzolari Pty Limited v Parramatta City Council etc: 2 Apr 2009

(High Court of Australia) French CJ said: ‘Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretative approaches where statutes are said to affect such rights . . The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights . . The terminology of ‘presumption’ is linked to that of ‘legislative intention’. As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights’

Judges:

French CJ

Citations:

[2009] HCA 12

Links:

Austlii

Jurisdiction:

Australia

Cited by:

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

Land

Updated: 11 October 2022; Ref: scu.414937

Ugolor and Others v Ugolor: ChD 19 Mar 2021

Application by the Defendant to allow him to remortgage the property in London with a different lender from the one who currently has a mortgage over it.

Judges:

Peter Knox QC (sitting as Deputy Judge of the High Court)

Citations:

[2021] EWHC 686 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 11 October 2022; Ref: scu.659933

Matson v Baird and Co: HL 5 Jul 1878

A horse having strayed from the public road by a level-crossing, which was without gate or fence, upon a branch line of railway belonging to the proprietors of the ground, and from that at a distance of about half-a-mile having got upon the main line of the North British Railway Company, which was likewise without gate or fence, and been killed-in an action of damages the proprietors of the branch line were [ aff. judgment of Court of Session] assoilzied, there being no obligation under the Railway Statutes to erect gates and fences on private lines.

Judges:

Lord Chancellor, Lord O’Hagan, Lord Blackburn, and Lord Gordon

Citations:

[1878] UKHL 778, 15 SLR 778

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 11 October 2022; Ref: scu.646311

Duke of Sutherland v Ross: HL 15 Apr 1878

By the action of stream and tide in the estuary of a river, part of a salmon fishery district, a long narrow strip of land, had gradually been separated from the mainland by a channel which was dry at low tide except when the river was in flood. From the seaward end of this island there extended a long low bank dry at low water, which confined the river in its main channel at low tide as in a canal, and prevented it spreading into an adjacent bay. By operations on the opposite side of the estuary, performed thirty years before the date of action, a larger body of water was thrown on to this bank, which was thus broken through, so that a new channel was made for the river into the bay. The proprietor of the adjacent land, and of the fishings ex adverso thereof, embanked the outside of the island so as to preserve it, and restored the bank by an artificial erection, which he ultimately raised to 16 inches above the natural level of the bank, to enable it to resist the force of the stream. He held on a barony title, and this erection was on his foreshore. It had the effect of preserving the bank, but at the same time considerably improving his fishings. Held ( aff. judgment of the Court of Session- diss. Lord Gordon) that the proprietor was entitled to preserve the island in the way described, although the effect of so doing might be to improve the fishing.

Judges:

Lord Chancellor Cairns, Lord Hatherley, Lord Blackburn, and Lord Gordon

Citations:

[1878] UKHL 532, 15 SLR 532

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 11 October 2022; Ref: scu.646303

Mackenzie v Bankes: HL 27 Jun 1878

In an action of declarator of joint-right or common property in a piece of water alleged to be part of an inland loch, in which the pursuer and defender had equal rights, the latter asserted that he was the sole owner and the only riparian proprietor of the water, which bore a different name, and was separated from the loch by a causeway erected upwards of forty years previously, and not since taken exception to.- Held [affirming judgment of Court of Session- dub. Lord Blackburn] that the two pieces of water must be held to be separate lochs, judging, inter alia-[1] from their difference of name; [2] from the configuration of the ground; and [3] from the existence of the causeway for the period of prescription.
Review by Lord Blackburn of the common law regulating the rights of different parties in respect of their occupation of property along the banks of a lake.

Judges:

Lord Chancellor, Lord Selborne, Lord Blackburn, and Lord Gordon

Citations:

[1878] UKHL 755, 15 SLR 755

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 11 October 2022; Ref: scu.646307

Tupholme and Others v Firth: Misc 17 Sep 2015

Leeds County Court – Claim that a proposed bulding of additional premises within a property boundary would amount to an infringement of a restrictive covenant against causing a nuisance or annoyance to a neighbour.
Held: The building would be in breach of the covenant against causing annoyance.

Judges:

Behrens HHJ

Citations:

[2015] EW Misc B28 (CC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84(2)

Jurisdiction:

England and Wales

Land

Updated: 11 October 2022; Ref: scu.552430

Magistrates and Town Council of Edinburgh v The Edinburgh Roperie and Sailcloth Co: HL 12 Nov 1878

Held (aff. judgment of First Division) that a vassal who had purchased a part of a feu, and was entered with the superior by virtue of the provisions of the 2d subsection of section 4 of the Conveyancing Act 1874, was entitled under section 15 of that Act to redeem the casualties applicable to his portion of the feu on payment of one year’s rent effeiring to it; and objection by the superior that he must pay the casualties applicable to the whole original feu, repelled.

Judges:

Lord Chancellor (Cairns), Lord Penzance, Lord O’Hagan, and Lord Selborne

Citations:

[1878] UKHL 127, 16 SLR 127

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 08 October 2022; Ref: scu.646314

Police Commissioners of Fort-William v Kennedy: HL 8 Jul 1878

An owner of a house in a burgh which stood back some feet from the street line, but had a plot of ground in front separated from the street by a railing fixed on a wall, removed the latter and took down the front of the house, intending to rebuild it in advance. The Police Commissioners thereupon served him with a notice, under the 162d section of the General Police and Improvement (Scotland) Act 1862, to the effect that he must keep the new front wall of his house ‘in a line with that of the adjoining house.’ Held (affirming the judgment of the Court of Session) that that section of the Act did not apply, as there was no ‘house or building’ which had been taken down, the railing and wall not being a ‘house or building’ in the sense of the statute.

Judges:

Lord O’Hagan, Lord Selborne, Lord Blackburn, and Lord Gordon

Citations:

[1878] UKHL 765, 15 SLR 765

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 08 October 2022; Ref: scu.646312

Kerr, Anderson, and Co v Lang: HL 26 Feb 1878

The 384th section of the Glasgow Police Act 1866 empowers the Master of Works to call upon ‘any proprietor or occupier of a land or heritage to fence the same, or repair any chimney-stalk, . . or any rhone, sign-board, or other thing connected with or appertaining to any building thereon, which appears to be dangerous.’
Held (affirming judgment of Court of Session that a proprietor of lands which were bounded by the Clyde, a public navigable river, and through which there ran parallel to the river a public right-of-way, which was fenced off on that side only of the path which was beneficially occupied, could not be called upon under the above-quoted section to erect a fence upon the other side of the path adjoining the river.

Judges:

Lord Chancellor, Lord Hatherley, Lord Selborne, Lord Blackburn, and Lord Gordon

Citations:

[1878] UKHL 386 – 1, 15 SLR 386 – 1

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 08 October 2022; Ref: scu.646297

IAM Group Plc v Chowdrey: CA 15 Mar 2012

Appeal against rejection of claim for possession of land subject to adverse possession claim, and against order for registration of the defendant as registered proprietor.

Judges:

Thorpe, Etherton LJJ, Ryder J

Citations:

[2012] EWCA Civ 505

Links:

Bailii

Statutes:

Land Registration Act 2002 98(1)(a)

Jurisdiction:

England and Wales

Land, Limitation, Registered Land

Updated: 07 October 2022; Ref: scu.452996

Hawksley v Outram: CA 1892

The parties had concluded a contract for the sale of land and a business. The court considered a purported waiver of a non-compete clause, saying: ‘if there is any doubt whether [the provisions of the contract in issue] are binding upon the vendors, and the purchaser waives them, what have the vendors to complain of?’ and ‘the purchaser . . is at liberty to relinquish [those provisions]’. However, a clause may be so inextricably mixed up with other parts of the transaction that it cannot be severed.
Lopes LJ said that ‘it is perfectly clear that they are provisions intended solely for the benefit of the purchaser; the purchaser, therefore, is at liberty to relinquish them and, if he does so, it is immaterial whether he could have successfully insisted on them’.

Judges:

Lindley LJ, Lopes LJ

Citations:

[1892] 3 Ch 359

Jurisdiction:

England and Wales

Cited by:

Cited – Heron Garage Properties Ltd v Moss 1974
A contract for the sale of land was conditional on obtaining planning permission. It was not granted. The purchaser sought to enforce the contract.
Held: He failed. Brightman J said: ‘Without seeking to define the precise limits within which a . .
Cited – Irwin v Wilson and Others ChD 23-Feb-2011
The claimant sought a declaration that his contract for the sale of leasehold property to the defendants had been lawfully terminated by a letter from his solicitors. The defendants had moved in before completion, but the claimant found himself . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 October 2022; Ref: scu.430314

Rangeley v Midland Railway Company: CA 1868

Where there is a highway, the surface of the land or other property is dedicated to public use.
Cairns LJ described a highway as: ‘a dedication to the public of the occupation of the surface of the land for the purpose of passing and repassing.’

Judges:

Cairns LJ

Citations:

[1868] 3 Ch App 306

Jurisdiction:

England and Wales

Cited by:

Cited – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
Cited – Dillner, Regina (on The Application of) v Sheffield City Council Admn 27-Apr-2016
The claimant challenged the policy of the respondent council to replace many established trees along streets in the City.
Held: Permission to apply for review was refused: ‘Some concern has been expressed by objectors to the scheme that, in . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 October 2022; Ref: scu.443845

Micklethwait v Newlay Bridge Co: CA 1886

Where land is bounded by a river or a public highway it is a general principle that a conveyance of the land will pass half the river bed or half the soil of the highway, as the case may be. Lopes LJ said: ‘if land adjoining a highway or a river is granted, the half of the road, or the half of the river is presumed to pass, unless there is something either in the language of the deed or in the nature of the subject-matter of the grant, or in the surrounding circumstances, sufficient to rebut that presumption, and this though the measurement of the property which is granted can be satisfied without including half of the road or half of the bed of the river, and although the land is described as bounded by a river or a road, and notwithstanding that the map which is referred to in the grant does not include the half of the river or the road.’

Judges:

Lopes LJ

Citations:

(1886) LR 33 Ch D 133.

Jurisdiction:

England and Wales

Cited by:

Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 October 2022; Ref: scu.539756

Bridle v Ruby: CA 1989

The plaintiff was able to establish a right of way by prescription despite his personal belief that he had such a right by grant.
Ralph Gibson LJ said: ‘For mistake as to the origin of the right asserted by the user to be relevant, it seems to me that it must be such as to be capable of affecting the way in which the user of the right is conducted by the claimant or in which that user is seen by the owner of the land over which the right is asserted. The requirement that user be ‘as of right’ means that the owner of the land, over which the right is exercised, is given sufficient opportunity of knowing that the claimant by his conduct is asserting the right to do what he is doing without the owner’s permission. If the owner is not going to submit to the claim, he has the opportunity to take advice and to decide whether to question the asserted right. The fact that the claimant mistakenly thinks that he derived the right, which he is openly asserting, from a particular source, such as the conveyance to him of his property, does not by itself show that the nature of the user was materially different or would be seen by the owner of the land as other than user as of right.’
Parker LJ said: ‘The true position, as exemplified in the Chamber Colliery case, 32 Ch.D. 549, is that user in an asserted but mistaken belief that it is justified on a right of limited duration, which belief is acquiesced in, cannot be made the foundation of a grant of unlimited duration. To go as far as saying that no user based on a mistaken belief in a right could found a claim to prescription would be to say that the law will only presume a grant or allow a claim to prescription at common law in favour of someone who is aware that he is a wrongdoer.’

Judges:

Ralph Gibson LJ

Citations:

[1989] QB 169

Jurisdiction:

England and Wales

Cited by:

Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 October 2022; Ref: scu.402567