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: 1992 To: 1992
This page lists 26 cases, and was prepared on 02 April 2018.
Tootal Clothing Ltd v Guinea Properties Ltd; CA 1992 - [1992] 64 P and CR 452; [1992] 2 EGLR 80
Honey v Sliversprings Bleaching and Dyeing Co Ltd [1992] Ch 268
1992
ChD
Land
1 Citers
Equity and Law Home Loans Ltd v Prestidge [1992] 1 WLR 137; [1992] 1 All ER 909
1992
CA
Equity, Land
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 left without making repayments, and the lender sought possession. Held: The charge ranked ahead of any interest of the non-owner, and an order for possession was made. It ranked ahead however only to the extent of the original mortgage.
1 Cites
1 Citers
Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd; SCS 1992 - 1992 SLT 1035; [1992] CLY 6215; 1992 SC 357
Grant v Macdonald [1992] 5 WWR 577
1992
Land
British Columbia Court of Appeal - the right to build and use a swimming pool and other improvements on part of a neighbour's land (the pool was never in fact built but a gazebo was) was regarded as capable of being an easement.
1 Citers
Tuck v Baker; CA 1992 - [1992] EGLR 195
Tinsley v Milligan [1992] Ch 310; (1991) 63 P and CR 152; [1992] 2 WLR 508; [1992] 2 All ER 391
1992
CA
Lord Justice Lloyd, Lord Justice Nicholls
Land, Torts - other
The court considered the defence of illegal user to a claim to have established an easement by prescription: "These authorities seem to me to establish that when applying the 'ex turpi causa' maxim in a case in which a defence of illegality has been raised, the court should keep in mind that the underlying principle is the so-called 'public conscience' test. The Court must weigh, or balance, the adverse consequences of granting relief against the adverse consequences of refusing relief. The ultimate decision calls for a value judgment. The detailed principles summarised by Lord Justice Kerr in the Euro-Diam case, [1900] 1 QB. 1, and distinctions such as that between causes of action which arise directly ex turpi causa and causes of action to which the unlawful conduct is incidental are valuable as guidelines. But they are no more than guidelines. Their value and justification lie in the practical assistance they give to courts by focusing attention on particular features which are material in carrying out the balancing exercise in different types of case".
Ralph Gibson LJ dissented, observing that: "in so far as the basis of the ex turpi causa defence, as founded on public policy, is directed at deterrence it seems to me that the force of the deterrent effect is in the existence of the known rule and in its stern application. Lawyers have long known of the rule and must have advised many people of its existence."
Law of Property Act 1925 193(1)
1 Cites
1 Citers
Hulley v Silversprings Bleaching and Dyeing Co Ltd [1992] 2 Ch 268
1992
ChD
Eve J
Land
A lower riparian owner sued the Silversprings company for nuisance. Held: The fact that the plaintiff's predecessors had acquiesced in pollution for twenty years was no defence, because the plaintiff was not the only person affected by the pollution. There was a wider public interest. Under the legal fiction of lost modern grant: "The evidence on both sides satisfies me that the defendants have continually, and down to very recent dates in this year, been committing offences against the Act - in other words, that the user on which they rely as establishing the easement is a user contrary to statute. A lost grant cannot be presumed where such a grant would have been in contravention of a statute, and as title by prescription is founded upon the presumption of a grant, if no grant could lawfully have been made, no presumption of the kind can arise, and the claim must fail."
As to the claim for a prescriptive right: "The progressive increase in the plant in the defendants' mill and in the volume of water polluted is destructive of that certainty and uniformity essential for the measurement and determination of the user by which the extent of the prescriptive right is to be ascertained."
Rivers Pollution Prevention Act 1876
1 Cites
1 Citers
Walford v Miles; HL 1992 - [1992] 2 AC 128; [1992] 1 All ER 453; [1992] 2 WLR 174; [1992] ANZ Conv R 207
Re Fisher and Gimson (Builders) Ltd's Application (1992) 65 P&CR 312
1992
LT
Victor Wellings QC, President
Land, Damages
A new house was built in contravention of a covenant, which the builder thought to be unenforceable. A neighbour objected, and having been found to have the benefit of the covenant after other neighbours had settled, he claimed 100% of the developer's profit, which he assessed at £290,000. Held: The President allowed the modification on the limited benefit ground, and indicated that he was willing to award compensation based on "a share in the development value released". He rejected the objector's calculations as "misconceived", and awarded £6,000, based on a comparison with the sums paid to the other potential objectors.
1 Citers
Neighbour v Barker; CA 1992 - [1992] 40 EG 140
Jones v Price and Morgan (1992) 64 P & CR; Independent, 16 January 1992
16 Jan 1992
CA
Parker LJ
Land
At trial, the use of a track across a neighbouring farm for the driving of sheep was found to be originally by oral permission, and that although the permission was not expressly renewed "there was a tacit understanding that did not need to be expressed overtly between neighbours, then on good terms" that when the one farm made arrangements to bring sheep along the track "it was on the assumption on both sides that the permission to do so was still in force." The judge also found that other farmers, who could not by reason of the location of their land prescribe for an easement, similarly used the track. Held: The appeal failed. The 1832 Act could not be used to acquire a right of way where there was found a tacit understanding that a permission given before the suggested prescription period was still in place. The use was permissive so as to preclude a prescriptive easement being acquired.
Parker LJ said: "Oral permission given within the period will of course negative user as of right or any claim to user as of right, but so also, in my view, will a user which continues on a common understanding that the user is and continues to be permissive. If both parties have such a common understanding it cannot be, in my judgment, that there is an assertion to a claim as of right, nor could any such user bring home to the mind of the alleged servient owner that a claim of right was being asserted. This common understanding has been found by the judge, and there was ample evidence on which he could so find."
Prescription Act 1832
1 Citers
Toplis v Green Unreported 14 February 1992
14 Feb 1992
CA
Butler-Sloss LJ
Land
Butler-Sloss LJ said, as to the construction of a conveyance with a plan: "In taking the objective approach, one looks at the language used in the contract, the content of the plan and in the context the facts relating to the locus in quo, if it is in issue as indeed it is in this appeal, including relevant photographs and the preliminary enquiries. The question, therefore, is: what would the reasonable layman think he was in fact buying?"
Graham v Pitkin Gazette, 29 April 1992; [1992] 1 WLR 403; [1992] UKPC 8
9 Mar 1992
PC
Lord Templeman
Land
A delay in completion was not challenged by a notice to complete; mere delay may itself be repudiatory. Specific performance was considered. As to Lee-Parker v Izzett, the Board doubted the finding that there was no contract in that case, because the purchaser could always have decided that the mortgage was satisfactory and proceeded.
1 Cites
[ Bailii ]
Colchester Borough Council v Smith and Others; CA 18-Mar-1992 - Gazette, 18 March 1992; [1992] Ch 421
Liverpool City Council v Attorney General; 15-May-1992 - Unreported, 15 May 1992; Times, 01 May 1992
Chelsea Football and Athletiic Co Ltd v Sb Property Co Ltd Gazette, 20 May 1992
20 May 1992
CA
Land
Dispute as to validity of grant of lease defeated exercise of option to buy.
Mansukhani v Sharkey Gazette, 27 May 1992
27 May 1992
CA
Land
A transfer which was expressed to have been given for natural love and affection was truly a gift and not a sale, despite the apparent existence of some consideration.
IDC Group Ltd v Clark; CA 2-Jul-1992 - Gazette, 26 August 1992; Times, 23 July 1992; [1992] EWCA Civ 14; [1992] 49 EG 103; (1993) 65 P & CR 179
Cresstock Investments Ltd v The Commons Commissioner Gazette, 16 September 1992; [1992] 1 WLR 1088; [1993] 1 All ER 213
10 Jul 1992
CA
Land
The Commons Commissioner had included a wood within the commons. The landowner appealed. Held: A 1933 conveyance as had referred to the land as "several pieces or parcels of land adjoining & enjoyed with" the house, and it had been enjoyed with the house for many years. The wooded garden should excluded from the common. The words 'land ancillary to' a dwelling house should be read to include a garden, and need not be construed tightly so as to include only agricultural or cultivated land.
Common Land (Rectification of Registers) Act 1989 1(2) 1(3)
1 Citers
Oldham Borough Council v Attorney General Gazette, 28 October 1992; [1992] EWCA Civ 21; [1993] Ch 210; [1993] 2 WLR 224; [1993] 2 All ER 432
28 Jul 1992
CA
Dillon, Russell, Farquharson LJJ
Charity, Land
The cy-pres doctrine could be allowed to be applied to allow the sale of land if such an action would remain within the purpose of the original charitable gift.
Charities Act 1960 13
[ Bailii ]
London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd Gazette, 29 July 1992; [1992] 1 WLR 1278; [1993] 4 All ER 157
29 Jul 1992
ChD
His Honour Judge Paul Baker QC
Land
A right to park was claimed as an easement. Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: "A small coal shed in a large property is one thing. The exclusive use of a large part of the alleged servient tenement is another."
There can be no possible easement without there being both dominant and servient tenements at all times. The court asked what extent of use could be granted and the grant still be an easement: "The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant."
1 Citers
Benn v Hardinge (1992) 66 P & CR 246; Times, 13 October 1992
13 Oct 1992
CA
Land
The court declined to find an intention on the part of the dominant land owner to abandon a right of way even though no use had been made of that right of way for one hundred and seventy five years because the dominant owner had other access to the particular land.
1 Cites
Stafford and Another v Lee and Another [1992] EWCA Civ 17; [1992] EG 136 (CS); [1992] NPC 142; (1993) 65 P & CR 172
10 Nov 1992
CA
Nourse LJ, Russell LJ
Land
Whether a right of way claimed by the plaintiffs as appurtenant to their land falls into the second class of implied easements described by Lord Parker of Waddington in Pwllbach Colliery Company Limited v. Woodman [1915] AC 634 and usually known as intended easements. Held. The grantee asserting an impled easement must surmount two hurdles: "He must establish a common intention as to some definite and particular user. Then he must show that the easements he claims are necessary to give effect to it. " Here, the layout implied that the right of way had been reserved to allow further development.
1 Cites
[ Bailii ]
Stafford and Another v Lee and Another Gazette, 09 December 1992; (1993) 65 P & CR 172; Times, 16 November 1992
10 Nov 1992
CA
Nourse LJ
Land
The plaintiff had built houses on his land and sought an easement of necessity over the neighbour's drive for access for the houses under the rule in Pwllbach Colliery, saying an intended easement had been granted because it was known to the parties when the land was sold that it was to be used for residential purposes and that it was therefore implied that a right of way would be needed. Held: To claim under the rule in Pwllbach, the plaintiff must show that some specific use was intended for the land, and that the easement was necessary for that use. The intentions were to be established on a balance of probabilities. Here the plans had shown similar plots on each side of the vacant lot and each with houses. That was sufficient to show the necessary intention. The easement was granted. Nourse LJ: "There are therefore two hurdles which the grantee must surmount. He must establish a common intention as to some definite and particular user. Then he must show that the easements he claims are necessary to give effect to it."
1 Cites
1 Citers
Downsview Nominees Ltd and Another v First City Corporation Ltd and Another; PC 19-Nov-1992 - Gazette, 09 December 1992; [1993] AC 295; Times, 15 December 1992; [1992] UKPC 34
