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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: 1991 To: 1991

This page lists 20 cases, and was prepared on 02 April 2018.

 
Visionhire Ltd v Britel Fund Trustees Ltd 1991 SLT
1991


Scotland, Land

1 Citers


 
Hampshire County Council v Milburn [1991] 1 AC 325
1991
HL
Lord Templeman
Land
The 1965 Act "was passed to give effect to the recommendations of the Royal Commission so far as registration was concerned. The Act of 1965 did not confer any general public right of access over common land and did not set up the machinery for the establishment and implementation of schemes of management and improvement. But there can be no doubt that further steps were intended to implement the recommendations of the Royal Commission and no doubt that such steps have become more, and not less, desirable."
No new mesne Lordships can be created after 1290 in consequence of the prohibition on subinfeudation in s.1 of Quia Emptore
Commons Registration Act 1965
1 Citers


 
Re Citro, Lloyds Bank plc v Byrne and Byrne, Abbey National plc v Moss and others and Barclays Bank plc v Hendricks [1991] 1 FLR 71; [1991] Ch 142; (1991) 23 HLR 472
1991
CA
Bingham LJ, Nourse LJ
Land, Insolvency
Trustees in bankruptcy of bankrupt husbands successfully appealed for the removal of provisos delaying the operation of orders for sale made under s30 in respect of each husband’s matrimonial home for the benefit of that husband’s wife who had been declared by the judge at first instance to be an equal owner with the husband of the beneficial interest in the matrimonial home. Bingham LJ: "Section 30 of the Law of Property Act 1925 confers two discretion’s. First, it confers a discretion on “any person interested” to “apply to the court .... for an order directing the trustees for sale to give effect thereto.” Secondly, it confers a discretion on the court to “make such order as it thinks fit”. The section contains no express limitation on the exercise of these discretions but neither is it altogether unfettered." The interests of a bankrupt spouse's creditors would, absent exceptional circumstances, usually prevail over those of the other spouse and children. Accordingly it reduced to six months the period of postponement of the order for sale of the property made by the judge below.
Nourse LJ: "One of the consequences of the 1925 Property Legislation is that the legal estate in any property which is beneficially owned jointly or in common is necessarily held on trust for sale and is thus subject to the jurisdiction of the court under s. 30. From its inception the section was one of wide application. But is seems that before Jones -v- Challenger [above] it had not been the means of making an order for the sale of a former matrimonial home ...." and as to what counted as exceptional circumstances: " What then are exceptional circumstances? As the cases show, it is not uncommon for a wife with young children to be faced with eviction in circumstances where the realization of her beneficial interest will not produce enough to buy a comparable house in the same neighbourhood or indeed elsewhere. And, if she has to move elsewhere, there may be problems over schooling and so forth. Such circumstances, while engendering a natural sympathy in all who hear of them, cannot be described as exceptional. They are the melancholy consequences of debt and improvidence with which every civilised society has been familiar."
Law of Property Act 1925 30
1 Citers


 
Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton [1991] Ch 185
1991
CA

Land
The river Derwent passed through land. Before steps could be taken to re-open the river to public navigation, the court had to decide what rights of way existed over it. Held: The 1932 Act did apply, and public rights of way applied, but no public rights had been created in this particular case. Several cases and learned textbooks before 1932 refer to a right of navigation as or as analogous to a public highway. If a highway is no more than a way over which members of the public enjoy rights of passage, it is no misuse of language to refer to a right to navigate as a "right of way". A waterway is water in a channel passing through land, and it is no misuse of language to refer to a right of navigation as a right of way "over" land. The vessel is in contact with and is carried by the surface of the water, but the water runs over land. The Act sets out to overcome the difficulties inherent in establishing a dedication by sufficiently continuous user. This applies to establishing a right of navigation just as much as as it does to establishing a right to walk or drive on terra firma. Last, a river or other waterway is properly and literally described as "land covered by water," the land being the bed of the stream, lake or pond in which the water is contained. "Accordingly we are satisfied that, at the time when the Act of 1932 was passed, the general law was such that public rights of way could exist over a navigable river which was then, in legal parlance, a highway and that such rights of navigation were properly described as rights of way" and 'If . . . the object of the Act of 1932 was to simplify the law relating to the proof of the acquisition of public rights of way over highways, there is no reason to assume that the draftsman deliberately set out to exclude one particular class of highway, viz. navigable rivers.'
Rights of Way Act 1932
1 Cites

1 Citers


 
Browne v Perry [1991] WLR 1297
1991
PC
Lord Templeman
Land, Limitation, Evidence
Any acknowledgement of title must be in writing. Lord Templeman explained the rule against relience upon oral acknowledgements in adverse possession cases: "If an oral acknowledgment were allowed to constitute an interruption litigation would be encouraged and litigants would dispute what was said, by whom and to whom . . Once an acknowledgment has been reduced to writing, there is certainty about the words used and the court need only decide whether the words which have been written amount to an acknowledgment. There is no room for fraud, mistake or failure of memory. The written word speaks for itself."
Limitation Act 1980 S1
1 Citers



 
 Mills and Another v Silver and others; CA 1991 - [1991] Ch 271; [1991] 2 WLR 324; [1991] 1 All ER 449; [1990] EWCA Civ 12
 
Hughes v Doncaster Metropolitan Borough Council Gazette, 30 January 1991; [1991] 2 WLR 16; [1991] 1 AC 382
1991
HL
Lord Bridge of Harwich
Land
A claimant's claim for compensation on the compulsory acquisition of his land is but one claim for all those losses which flow from a compulsory acquisition of which the value of the land taken and any injury to retained land is but part of the compensation claim. The value of the land and the disturbance loss are no more than two inseparable elements of a single whole in that together they make up the value of the land to the owner
Land Compensation Act 1973 37
1 Cites

1 Citers


 
Vasiliou v Secretary of State for Transport [1991] 2 All ER 77
1991
CA
Nicholls LJ
Land, Damages, Planning
When considering the revocation or modification of a planning consent, any impact on an interested party is a relevant consideration. A planning permission should not have been granted closing a public road without considering its adverse effect on the business of traders relying on it. In the absence of a stopping-up or diversion order, the grant of planning permission does not of itself affect or override any existing rights of property or over a highway On a stopping up order the Secretary of State cannot go behind the planning authority's decision on the planning issues. It remains, however, a matter for the judgment of the Secretary of State.
1 Citers


 
C and G Homes Ltd v Secretary Of State For Health [1991] Ch 365
1991
CA
Nourse LJ, Lord Donaldson of Lymington MR
Land
The court was asked whether a health authority's housing of former mental in-patients in two houses on a residential estate resulted in a breach of one or both of two covenants burdening the houses. One covenant, (20) was: 'Not to cause or permit or suffer to be done in or upon the property any act or thing which may be or become a nuisance, annoyance, danger or detriment to the transferor or owners or occupiers for the time being of other parts of the estate' Held: the appeal succeeded. There had been no breach of covenant.
Nourse LJ said: 'Mr Macdonald's [for the appellant] primary submission was that the covenant does not impose any restriction on the persons who may occupy the property. It only restricts the acts or things which the occupants, whoever they be, may do there. Although Ferris J thought that that was too narrow a view, I suspect that it accords with the construction which most conveyancers would put on a covenant in this form, again a very familiar one'.
Lord Donaldson of Lymington MR said: 'The position in relation to covenant 20 is quite different. Once again I have to look to the object and to the words. It is not directed to the use being made of the property, that being the subject matter of covenant 24(2). It is directed instead at conduct in or upon the premises which causes or may cause nuisance, annoyance, danger or detriment to other owners … or occupiers of other parts of the estate or to the plaintiff. No complaint whatsoever is being made in relation to the conduct of the occupants in or upon the premises. The evidence relied upon as constituting a detriment to the plaintiff relates solely to the use of the premises made by the Secretary of State and amounts to no more than that in a buyers' market a particular purchaser was astute enough to use the general nature of that use as a lever to obtain a small reduction in the purchase price. There has been no breach of covenant 20'.
1 Citers


 
Miller's Wharf Partnership v Corinthia Column Ltd [1991] 1 EGLR 192
1991

Knox J
Land
The contract for a lease was conditional on several matters, with a provision that the sellers would use their best endeavours to satisfy the conditions. A notice to rescind was served. The conditions had been satisfied only after the de fixed, but before the rescission notice. Held: A way to argue for the loss of the right of rescission was to qualify the right to "rescind at any time thereafter" by making it one to "rescind at any time thereafter but before the condition is satisfied". Knox J said this had not been argued on behalf of the plaintiff "and in my judgment entirely justifiably."
1 Citers


 
Spiro v Glencrown Properties Ltd and Another [1991] Ch 537; [1991] 1 All ER 600; [1991] 2 WLR 931
1991
ChD
Hoffman J
Land, Contract
The court considered the nature of an option to buy land. Hoffman J said: "The granting of the option imposes no obligation upon the purchaser and an obligation upon the vendor which is contingent upon the exercise of the option. When the option is exercised, the vendor and purchaser come under obligations to perform as if they had concluded an ordinary contract of sale . . The exercise of an option is a unilateral act. It would destroy the very purpose of the option if the purchaser had to obtain the vendor's counter signature to the notice by which it was exercised."
The exercise of an option by notice does not make the notice a contract. The courts have moved away from construing an option as an irrevocable offer as opposed to a conditional contract which arises only when the grantee seeks to exercise unilaterally the option.
Hoffman J spoke as to the Law Commissions report leading to the 1989 Act: "The recommendation that contracts relating to land should be incorporated in a signed document which contains all the terms was, clearly, intended to promote certainty. There is no reason why certainty should be any less desirable in relation to arrangements for security over land than in relation to any other arrangements in respect of land. The present case itself illustrates the need to be able to identify the obligation which is to be secured. I do not find it surprising that Parliament decided to enact legislation which would be likely to have the effect of avoiding disputes on oral evidence as to the obligations which the parties intended to secure".
Law of Property Act 1925 40 - Law of Property (Miscellaneous Provisions) Act 1989 2
1 Citers



 
 Hawker v Vickers; 1991 - [1991] 1 NZLR 399
 
Goff v Gauthier [1991] 62 P&CR 388
1991


Land, Contract

1 Citers


 
Westminster City Council v Duke of Westminster [1991] 4 All ER 136
1991
ChD
Harman J
Land
There was a covenant that the premises should not "be used for any art trade or business or profession whatsoever . . " but should be "kept and used only for the purposes of the Grosvenor Housing Scheme as dwellings for the working classes . . ". Held: A term in a restrictive covenant was now so vague as to render the covenant unenforceable. The first part imposed a restrictive obligation, but that the second part, obliging the premises to be used for the working classes, was a positive covenant enforceable by the Lessors which did not fall within the jurisdiction of the Lands Tribunal. "As I have said, the covenant falls into several parts. The first part is plainly restrictive. Mr Lightman argued that the second part is not restrictive but positive. He pointed to the words 'shall be kept and used' and said that those words amounted to a continuing obligation to carry out the purposes. That cannot, he submitted, be called a restrictive covenant. The law is familiar with positive covenants in leases, perhaps especially in user covenants. A covenant to use a particular shop for some particular trade requires the tenant not to leave the shop empty but to actively carry on the trade. Obviously a covenant to carry out some purpose, as here to provide dwellings for the working classes, does not require that every part of the demised premises should always be occupied by such persons. Premises can legitimately stand vacant between the tenancies. Premises may be required to be vacant for purposes of redecoration. It is even possible that a whole block of flats might be required to be empty for a considerable period of time if that were necessary for the purposes of repair to the block, or for better equipping the block to provide adequate dwelling. Such intervals would not mean that the City of Westminster was not keeping and using the blocks for the proper purpose. The City of Westminster merely needed an interval while the purpose was pursued. But in my judgment the obligation here undertaken is a positive obligation. The word 'used' carries to my mind a connotation of a duty to use. The whole phrase suggests to me, what in my view is shown by the heads of agreement and other material in evidence to be the case, that the purpose of the grant was to provide buildings in which the City of Westminster would keep tenants. It is not a covenant that could be performed by keeping the buildings empty with a view to reducing expenditure on maintenance. In my judgment the contrast in wording between the negative prohibition in the first lines of the covenant followed by the words 'but that' shows a clear shift of meaning from restraint to activity. It is of course true that a duty to use land for some purpose necessarily means that the land shall not be used for other purposes. Nevertheless the duty to use remains a positive obligation although a negative implication may flow from it . . It is not in dispute that the Lands Tribunal can only modify restrictive covenants. In my judgment this part of sub-clause (IX)(a) is a positive covenant and as such cannot be the subject of an application to the Lands Tribunal."
Law of Property Act 1925 84
1 Citers


 
Rockeagle Ltd v Alsop Wilkinson [1992] Ch 47; [1991] 4 All ER 659
1991
CA

Contract, Land
The position of a stakeholder and the two potential claimants to a stake is the subject of a tripartite contract. The relationship between the stakeholder and the two potential claimants is contractual, not fiduciary. The money is not trust money. The stakeholder is not a trustee or agent; he is a principal who owes contractual obligations to the potential claimants to the stake.
At common law, before settlement, if both parties agree as to the way in which the deposit should be paid or otherwise transferred, the stakeholder is obliged to follow that requirement.
Farquharson LJ said: "It is clear from the authorities, and in particular Potters v Loppert [1973] Ch. 399, that the duties and authority of a stakeholder lie in contract or quasi-contract and not as trustee".
1 Cites

1 Citers



 
 Save Britain's Heritage v Number 1 Poultry Ltd; HL 28-Feb-1991 - [1991] 1 WLR 153; Times, 01 March 1991; [1991] 2 All ER 10; [1991] 62 P and CR 105
 
McAuley v Bristol City Council [1991] EWCA Civ 2; [1992] QB 134; [1992] 1 All ER 749; (1991) 23 HLR 586; [1991] 45 EG 155; [1991] 3 WLR 968; [1991] 2 EGLR 64; 89 LGR 931
25 Jun 1991
CA
Neill, Ralph Gibson LJJ
Personal Injury, Land
The Council appealed against a finding of liability to the plaintiff tenant who slipped and fell in the back garden of the tenanted house.
Defective Premises Act 1972 4
[ Bailii ]
 
IDC Group Ltd and others v Clark and others [1991] EWCA Civ 3; [1992] 1 EGLR 186
25 Jun 1991
CA
Sir Nicolas Browne-Wilkinson VC
Trusts, Land
Sir Nicolas Browne-Wilkinson VC reviewed the cases about constructive trust claims summarising the result as follows: "That decision [Lyus] was approved by the Court of Appeal in Ashburn Anstalt v Arnold . . The Court of Appeal put what I hope is the quietus to the heresy that a mere licence creates an interest in land. They also put the quietus to the heresy that parties to a contractual licence necessarily become constructive trustees. They also held . . that the mere fact that property is sold subject to a contractual licence is not sufficient to create a constructive trust. They held . . that the mere fact that somebody has purchased with notice of a claim does not give rise to a constructive trust. However, the Court of Appeal plainly considered that Lyus v Prowsa was rightly decided.
The result, as it seems to me, is that in the normal case a conveyance of land subject to or with notice of prior incumbrances or prior interests will not operate so as to make enforceable under a constructive trust such prior incumbrances or interests which would otherwise be unenforceable.
However, in certain circumstances equity raises a constructive trust because it is unconscionable for the person having received such property not to give effect to the terms on which he received it. As the Court of Appeal said, and with respect I would agree:
'In matters relating to the title to land certainty is of prime importance. We do not think it desirable that constructive trusts of land should be imposed in reliance on inferences from slender materials.'
It is important always to bear in mind that it is of the greatest importance that the title to land should be capable of being ascertained in accordance with well-known procedures. To raise constructive trusts which do not fit into the conveyancing machinery currently operating, thereby giving rise to liabilities of which purchasers might otherwise not be aware, is a dangerous course to pursue.
In my judgment, the decision in Ashburn Anstalt does not warrant the creation of a constructive trust unless there are very special circumstances showing that the transferee of the property undertook a new liability to give effect to provisions for the benefit of third parties. It is the conscience of the transferee which has to be affected and it has to be affected in a way which gives rise to an obligation to meet the legitimate expectations of the third party."
1 Cites

1 Citers

[ Bailii ]

 
 Golden Bay Realty Private Ltd v Orchard Twelve Investments Pte Ltd Co; PC 22-Jul-1991 - [1991] UKPC 28

 
 Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton; HL 5-Dec-1991 - Gazette, 15 January 1992; [1991] 3 WLR 1126; [1992] 1 AC 425; (1991) 63 P & CR 411; (1991) 90 LGR 15
 
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