swarb.co.uk - law index
These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.
Land - From: 1990 To: 1990
This page lists 17 cases, and was prepared on 02 April 2018.
Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton [1990] Ch 136
1990
ChD
Vinelott J
Land
The 1932 Act did not apply to public rights of navigation over a river. Vinelott J said: " I do not think that any ordinary educated user of the English language would regard a right of navigation as a right of way over land . ." The extended definition of land in the Act is apt to cover situations such as a ford or a causeway subject to flooding or perhaps to stepping-stones in a stream.
Rights of Way Act 1932
1 Citers
Re Gorman; ChD 1990 - [1990] 1 WLR 616; [1990] 2 FLR 284
JT Developments v Quinn and Another [1991] 2 EGLR 257; (1990) 62 P & CR 33
1990
CA
Ralph Gibson LJ
Landlord and Tenant, Contract, Land
The plaintiff told the defendant it was willing to grant a lease on the same terms as those contained in a new tenancy that the plaintiff had recently granted to the tenant of a nearby shop, also owned by the plaintiff. The defendant carried out improvements in reliance on that assurance. Held: The plaintiff was bound to grant the lease in question. It is not open to the court to impose an agreement because it would have been reasonable for the parties to agree or because, if the importance of an immediate agreement had been more clearly understood at the time, the parties might well or probably have so agreed.
Referring to the AG of Hong Kong case, Ralph Gibson LJ said: "In that case, there was express use of the phrase 'subject to contract' and its effect was fully understood by both sides. In this case there were no such words. The right, however, not to proceed with negotiations for the contract exists independently of the use of that phrase, which is required, normally, in circumstances where an express agreement in writing is apparently reached which would constitute an enforceable agreement but for the use of that phrase."
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Delta Vale Properties Ltd v Mills [1990] 1 WLR 445
1990
CA
Slade LJ, Bingham LJ
Land
A contract for the sale of land provided that, upon service of a notice to complete, the transaction should "be completed within 15 working days of service and in respect of such period time shall be of the essence". The notices however substituted a period of 28 days for the period of 15 days. The purchaser, lacking the necessary funds, failed to complete within the period of 28 days; then, having obtained the necessary funds a few days later, sought specific performance of the contract. The vendor claimed that he had rescinded the contract on the purchaser's failure to comply with the notice to complete. Held: The notice was effective. There was only one sense in which any reasonable recipient would have read it, viz. that the vendor would not exercise the rights conferred by the contract (to rescind if the purchaser did not complete within 15 days), provided that the purchaser completed within 28 days. (Bingham L.J.) "The authorities show that a notice will be invalid and ineffective unless it gives the precise notice which the contract requires and leaves the recipient in no reasonable doubt as to the effect of the notice."
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China and South Sea Bank Limited v Tan Soon Gin; PC 1990 - [1990] 1 AC 536
S v France; ECHR 1990 - [1990] 65 DR 250
Regina v Secretary of State for the Environment ex parte Burrows and Simms [1991] 2 QB 354; [1990] 3 All ER 490
1990
CA
Glidewell LJ, Purchas LJ
Land
The conclusive character of the definitive map and statement is not intended to preclude the duty of the local authority to modify them where proper. If evidence came to light to show that a mistake had been made in drawing up the definitive map, then such a mistake could be corrected in either of the three ways envisaged in Section 53(3)(c) of the 1981 Act. The objective of these provisions was to ensure that the definitive map provided as accurate a picture as possible of the relevant rights of way.
Purchas LJ said: "It would, in my judgment, be strange indeed if the detailed and extensive provisions of section 53 were to be inhibited in important or material respects from achieving an accurate up-to-date record. This would be particularly so if, notwithstanding the discovery of new evidence, an error which had been detected on the definitive map or in the statement would nevertheless be perpetuated."
He sought to reconcile sections 53 and 56, saying that section 56 applies generally, but not such as to inhibit a review under section 53: "There is no difficulty in reconciling sections 53 and 56 of the Act 1981 once the comparatively restricted purpose of the legislation as a whole is understood, namely the preparation and maintenance of an authoritative record in the form of a definitive map and statement . . Parliament never removed the duty to revise and keep the record up to date so that not only changes caused by supervening events . . These should be taken into account in order to produce the most reliable evidence that can be achieved."
Glidewell LJ said: "There are two alternative ways in which the deletion and downgrading provisions in section 53(3) may be reconciled with the provisions of section 56. The first is that adopted by Taylor J in Rubinstein's case, 57 P & CR 111, namely by treating section 56 as pre-eminent and as limiting the operation of section 53(3). The alternative course is to interpret section 56 as not applying to the review process in section 53 at all so that the review starts from what is shown in the definitive map, but does not for its purposes treat the definitive map as conclusive. For all other purposes within the limits laid down by section 56(1) the definitive map is conclusive. In particular it is conclusive evidence in any dispute that may arise between a landowner . . and . .[users] . ."
Wildlife and Countryside Act 1981 56
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Regina v Secretary of State for the Environment ex parte Riley [1990] 59 P&CR 1
1990
Macpherson J
Land
The court considered the effect of a reclassification of a road under the 1968 Act. Held: Reclassification as a bridleway left open the possible existence of public vehicular rights since the 1968 Act had left the effect of the proviso in section 32(4)(b) in th e1949 Act unaltered and contained no positive word about extinguishment save for the one reference in Paragraph 10(c).
National Parks and Access to the hcountryside Act 1948 - Countryside Act 1968
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Re Tarhale Limited (1990) 60 P&CR 368
1990
LT
Victor Wellings QC, President
Land
Two five bedroom houses were proposed on the garden of a plot for which only one plot was permitted by the restrictive covenant. There was a specific covenant relating to the use of the approach drive and preventing its use by lorries or heavy vehicles, apart from those required for a particular development. The objectors said that the numbers of vehicles used in the driveway during the construction period would be as many as ten vehicles per day, and that they would suffer "substantial and intolerable nuisance" from noise, fumes and dust from builder's traffic using the driveway. Held: The tribunal accepted the objection. The restrictions secured practical benefits: ". . . in preventing the intolerable nuisances, which on the evidence will occur during the construction period".
Law of Property Act 1925 84
1 Citers
Re Curtain Dream plc [1990] BCLC 925
1990
Knox J
Equity, Land, Company
The company sought to finance its stock. It first sold it to a finance company, then repurchased it on terms including a retention of title clause. Held: The whole transaction was, in its nature, a charge on the company's assets, and as such was registerable as a company charge.
1 Citers
Manjang v Drammeh [1990] 61 P&CR 194
1990
PC
Lord Oliver
Commonwealth, Land
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 adjoining land to the public highway. Held: Lord Oliver explained the principle underlying the grant of a right of way of necessity by implication: "It seems hardly necessary to state the essentials for the implication of such an easement. There has to be found, first, a common owner of a legal estate in two plots of land. It has, secondly, to be established that access between one of those plots and the public highway can be obtained only over the other plot. Thirdly, there has to be found a disposition of one of the plots without any specific grant or reservation of a right of access. Given these conditions, it may be possible as a matter of construction of the relevant grant (see Nickerson v Barraclough) to imply the reservation of an easement of necessity."
1 Cites
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Lovett v Fairclough (1990) 61 P and CR 385
1990
Land
1 Citers
Post Investments Pty Ltd v Wilson; 1-Feb-1990 - (1990) 26 NSWR 598
Foy v Hertfordshire County Council; CA 1-May-1990 - Times, 04 May 1990
Director of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith; HL 12-Jul-1990 - [1990] 2 AC 783; Times, 13 July 1990; [1988] UKHL 11
P v United Kingdom; ECHR 12-Dec-1990 - 14751/89
Record v Bell Times, 21 December 1991; [1991] 1 WLR 853
21 Dec 1990
ChD
Baker QC HHJ
Contract, Land
Contracts for the sale of a house were about to be exchanged but office copy entries of the vendor's title at the Land Registry had not yet been supplied. The solicitors agreed that contracts would be exchanged on the basis of a warranty that office copies, when available, would show that the vendor was the registered proprietor. Office copy entries were supplied before completion was due, and the vendor's title was established. But, in answer to a summons for a summary order for specific performance, the purchaser argued that the contract did not satisfy the requirements of section 2 of the 1989 Act. Held: The warranty was binding on the vendor even though not given in writing. It was collateral to the principle contract, and outside section 2. The warranty was intended to induce the purchaser to exchange contracts, but it was not itself a term of the sale, and the existence of the warranty did not lead to the conclusion that the requirements of section 2 of the 1989 Act were not satisfied in respect of the contract of sale.
Law of Property (Miscellaneous Provisions) Act 1989 2
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