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Land - From: 1993 To: 1993

This page lists 37 cases, and was prepared on 02 April 2018.

 
Emile Elias and Co Limited v Pine Groves Limited [1993] 1 WLR 305; [1993] EG 31; (1993) 66 P & CR 1; [1993] UKPC 3
1993
PC
Lord Keith of Kinkel, Lord Oliver of Aylmerton, Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Woolf
Land
The parties disputed whether a building scheme had been established. There was no external evidence of the intention of the original parties. Held: The building scheme was not established over a piece of land comprising five plots because (amongst other reasons) it was not shown that the purchasers of plots 1 and 3 (or their predecessors) knew that plot 5 was included. Their conveyances had a general plan showing plots 1 to 4, but not plot 5.
1 Cites

1 Citers

[ Bailii ]
 
Bradley v Wingnut Films Ltd [1993] 1 NZLR 415
1993

Gallen J
Torts - Other, Media, Land
(New Zealand High Court) The plaintiffs complained that a relative's tombstone was depicted in a satiric film set in part in a cemetery, and containing a significant degree of gore and violence. The tombstone was never shown in its entirety, appearing for 14 seconds only, and it was not possible to read any writing on the tombstone. Held: The tombstone could not be identified by viewers. Moreover, there was nothing to connect the action in the film with the tombstone. A child may have a right of residence with her parents, but does not have a sufficient interst in the land to bring an action for trespass. There was however a tort of invasion of privacy involving public disclosure of private facts, but the disclosure, to be actionable, must be highly offensive and objectionable to a reasonable person of ordinary sensibility.
The infliction of emotional distress which is recognised by the authorities requires proof of something more than a transient reaction of emotional distress, regardless of initial severity.
1 Cites

1 Citers


 
Pulleyn v Hall Aggregates (Thames Valley) Ltd (1993) 65 P & CR 276
1993


Land, Limitation

1 Citers


 
Lloyds Bank plc v Byrne and Byrne [1993] 1 FLR 369
1993

Parker LJ
Land
A husband held the matrimonial home on trust for sale for himself and his wife in equal shares. The couple lived in the house. The husband and another man were in business with through a limited company, and guaranteed the its debts to the plaintiff, who obtained a default judgment against the husband under the guarantee and then a charging order absolute against the husband’s interest in the matrimonial home. The bank obtained an order that the house be sold under s. 30. The wife appealed saying that the bank’s application under s. 30 should have been dismissed or, if an order for sale should have been made, it should have been subject to conditions favourable to her. Held: The appeal failed. "The bank are not claiming under Mr Byrne, they are asserting rights over his share in the proceeds of sale. Furthermore it appears to me that to accept the contention would be to defeat the whole purpose of s. 30 of the Law of Property Act, which is to enable the court as a matter of discretion to do what is equitable, fair and just. In my judgment this is wholly a matter of discretion and there is no difference in principle between the case of a trustee in bankruptcy and that of a chargee. All the circumstances must be weighed and the court must consider whose voice should in equity prevail." The court did not accept that as the husband could not obtain an order against his wife, the bank could be in no better position as it claimed under him.
Law of Property Act 1925 30
1 Citers


 
Regina v Secretary of State for the Environment, ex parte Cowell [1993] JPL 851
1993
CA
Rose LJ, Staughton and Balcombe LJJ
Land
The question of sufficiency of evidence for the purpose of the proviso in the subsection is a question of fact for the tribunal to determine in each case. The court rejected a broad submission from the appellant that the 1980 Act and its predecessor had fundamentally altered the common law by introducing much more stringent requirements on a landowner than hitherto if he sought to rely on evidence of no intention to dedicate. Rose LJ (obiter) the proviso did not limit "sufficient evidence" of no such intention to, or by, the matters referred to in section 31(3)-(6), although proof of such matters would provide sufficient evidence in a particular case. The sufficiency of evidence in other cases would necessarily vary from case to case and whether there was sufficient evidence of a lack of intention to dedicate was a matter of fact to be determined by the tribunal of fact in accordance with the evidence in the particular case.
Staughton LJ noted that Denning LJ's requirements in Faiery of overt and notorious acts were dicta, went on to say that although "that was not said in the section itself", it "seemed a sensible rule."
Highways Act 1980 31(1) 31(2)
1 Cites

1 Citers


 
Palk v Mortgage Services Funding Plc [1993] Ch 330; [1993] 2 All ER 481; [1993] 2 WLR 415; [1993] ANZ Conv R 588
1993
CA
Sir Donald Nicholls V-C
Land
The mortgagees had obtained an Order for possession with the intention, not of proceeding to sell the property but of waiting in the hope that the market might improve. The mortgagor was anxious that the property should be sold so that the proceeds would reduce the mortgage debt, on which interest was accruing at an alarming rate. Held: Since the mortgagees could buy the property themselves if they wished to speculate on an increase in its value, in the interests of fairness the property should be sold. The duty to take reasonable care of the property secured requires the mortgagee to be active in protecting and exploiting the security, maximising the return, but without taking undue risks. In such a case the mortgagor might obtain an order for sale even though the proceeds of sale would be insufficient to discharge the mortgage debt.
Nicholls V-C said: "I have given two examples where the law imposes a duty on a mortgagee when he is exercising his powers: if he lets the property he must obtain a proper market rent, and if he sells he must obtain a proper market price. I confess I have difficulty in seeing why a mortgagee's duties in and about the exercise of his powers of letting and sale should be regarded as narrowly confined to these two duties. In addition to the mortgaged property, a mortgagee normally has a right of recourse against the borrower personally. He may also have the benefit of a guarantee from a third party. There is no problem when the borrower or guarantor can raise the necessary money, or the security available is adequate and readily realisable. Then the borrower should arrange to pay off his debt in full. The difficulty arises when that is not possible. Then the borrower is in the mortgagee's hands. Whether in that situation a mortgagee is at liberty to exercise his rights of leasing and sale in a way that in all likelihood will substantially increase the burden on the borrower or guarantor beyond what otherwise would be the case is not a question I need to decide on this appeal . . That he should act in such a cavalier fashion is not a proposition I find attractive. That is a question which may call for careful examination on another occasion . ."
1 Cites

1 Citers


 
Re Kumar (A Bankrupt), ex parte Lewis v Kumar [1993] 1 WLR 224
1993

Ferns J
Insolvency, Family, Land, Insolvency
H had transferred his interest in the jointly owned matrimonial home to W for her promise to have sole liability for the mortgage debt. Nearly a year later her divorce claim for capital provision was dismissed by consent on the basis that H had already transferred his interests to W. H was bankrupted, and his trustee applied under Section 339. The trustee relied on both paragraphs (a) and (c) of Section 339(3). He said that the consideration supporting the transfer of the bankrupt's interest was a release of such claims as she might have had under the 1973 Act, sections 23-25. Held: The assertion failed. The transfer of the property happened before the divorce and there was no evidence to support the contention that the transfer was in return for the Respondent agreeing not to apply for further capital provision under Sections 23-25. Ferns J said: "Re Abbott, although it is a decision on Section 42 of the Act of 1914, is applicable to section 339 to the extent that it decides that a compromise of a claim to a provision in matrimonial proceedings is capable of being consideration in money or money's worth".
W's counsel submitted that W had provided consideration. Ferns J said: "I would add that even if I had accepted the argument that there was such a compromise of Dr. Gupta's prospective claim for capital provision as was contended for on her behalf, it appears to me that I would have been driven to substantially the same conclusion. The transfer of Mr. Kumar's interest in 43, Broadwalk was a disposal of his only remaining capital asset of any significance. I cannot believe that any divorce court would have so exercised its jurisdiction under section 24 of the Matrimonial Causes Act 1973 as to require Mr. Kumar to transfer to Dr. Gupta, who had a superior earning capacity, substantially the whole of his capital, leaving him without the means to contribute from capital to the cost of acquiring a separate home for himself. In my view, in all the circumstances of this case as I find them, the transfer of his interest in 43, Broadwalk, contained a substantial element of bounty on the part of Mr. Kumar even if, as I find not to be the case, Dr. Gupta had agreed in return not to seek further provision out of capital."
Insolvency Act 1986 339 - Matrimonial Causes Act 1973 23 24 25
1 Cites

1 Citers


 
White v Richards [1993] 68 P&CR 105
1993
CA
Nourse, Stewart-Smityh, Mann LJJ
Land
A right had been granted to "pass or repass on foot and with or without motor vehicles over and along the track coloured brown on the plan so far as the said right may be necessary for the use and enjoyment of the retained land." The county court judge found that the track in question was on average 8 feet 10 inches. He held that only vehicles whose wheel base was limited to 8 feet and which were no more than 9 feet wide could use the track. Even this, as he noted, would allow an overhang of a foot or so, and was, in his words, "more than generous to the defendants". The judge considered and expressly rejected a submission that the way could be used by agricultural vehicles which extended beyond the grass verges at the side Held: The appeal failed.
Nourse LJ considered the construction of such a deed and said: "The nature and extent of a private right of way created by express grant depend on the intention of the parties which must be ascertained from the words of the grant read in the light of the surrounding circumstances." and "The judge was right to focus his attention on "the track". There was no other point from which he could start . . Here the words of the grant, to the extent that they are clear, identify nothing but the track, so that it is only from the physical characteristics with (sic) the width of the way can be ascertained." The surrounding circumstances will include the width and physical characteristics of the track.
1 Citers



 
 Bidaisee v Dorinsa Yusidai Sampath and Others; PC 1993 - 33 of 1993
 
Mercury Communications Ltd v London and India Dock Investments Ltd (1993) 69 P&CR 135; [1994] 1 EGLR 229
1993

Judge Hague QC
Land, Damages

1 Cites

1 Citers


 
Kingston upon Thames Royal Borough Council v Prince (1993) 31 HLR 794
1993

Hale J, Roch LJ
Housing, Land, Children
A minor could succeed to a secure tenancy under the 1985 Act. Hale J said: "A minor can hold an equitable tenancy of any property, including a council house." quoting the Law commission which said: "Moreover the statutory provisions do not restrict a minor's ability to acquire an equitable interest in land: there is nothing to prevent a would-be lessor granting an equitable tenancy to a minor. The desired result can be achieved by the lessor's entering into a contract with the minor to grant him a lease on the agreed terms, followed by the minor's entry into possession of the property let."
Housing Act 1985
1 Citers


 
Charles v Beach [1993] EGCS 124
1993

Waite LJ
Land
The parties shared a right of way over land. The common way could be used for most of its length, except for an intervening flowerbed on the land of the servient owner. Held: The existence of the flowerbed was insufficiently permanent or substantial to qualify the express terms of the grant.
Waite LJ said: "Where (as in this instance) the words of grant are apt to accommodate an easement of access to every point along the boundary of the dominant and servient tenements, but there is in existence at the date of grant some feature on the servient tenement which represents a potential obstruction to the free and uninterrupted enjoyment of access by the dominant owner, it is a matter of construction in every case for the court to determine whether the existence of that obstacle calls for the words of grant to be given a restricted meaning so as to deny access at the point of obstruction. It is essentially a question of degree. The more transient or insubstantial the obstacle, the more ready the court will be to infer that it was the intention of the grantor to override the instruction, and (conversely) the more solid and permanent the obstruction, the greater will be the reluctance of the court to impute to the grantor any intention to give the dominant owner the right to insist upon its removal." and concluded
"When all these considerations are borne in mind, the intention that is properly to be imputed to the common vendor is in my judgment an intention to allow the dominant owner access for pedestrians and vehicles at every point along the driveway. The fact that this interpretation would carry with it the right to call upon the servient owner to abandon his flowerbed at any point where the dominant owner desired to exercise a right of access does not in my view involve a consequence sufficiently drastic to contradict the plain language of the grant. Nor can it be affected in retrospect by the fact that Miss Walker was a lady who never drove a car and never sought to exercise vehicular access rights in her lifetime. The right was given to her and to her successors in title in language that is too plain to be contradicted by any reference to the contemporaneous topography."
1 Citers


 
Jaggard v Sawyer [1993] 1 EGLR 197
1993
CC
Judge Jack QC
Land, Damages
(Weymouth County Court) The court refused an injunction to a land owner who complained that a neighbour had erected a building over a right of way. The court awarded damages of £694.44, being a proportionate part of the the sum he might be expected to have to pay for the right of way which had been lost.
1 Citers


 
Heronsgate Enterprises Ltd v Harman (Chesham) Ltd Unreported, 21 January 1993
21 Jan 1993
CA
Sir Donald Nicholls VC
Land, Contract
The court described the duties of a vendor as trustee of the property after exchange but before completion: "It is well-established law that, subject always to the terms of the particular contract, a seller of property under a specifically enforceable contract is to be regarded after the contract has been made as holding the property as a trustee for the buyer. However, he is not a bare trustee. His trust obligations are limited in certain respects. For example, if, as is usually the case, he is entitled to remain in possession for the period after the contract has been made pending the date fixed for completion, he is entitled to keep and retain for his own benefit the rents and profits of the land arising during that period . . The seller must take care not to damage the property or to prejudice the buyer's interest in the property of which, on completion, he will become the legal owner. But in general, within those limits he is entitled to the ordinary rents and profits, and for him to take steps to obtain them after contract and before the date fixed for completion, either by occupying and using the property himself or by permitting another to occupy and work the property in return for a rent, is not a breach of his duties as seller under a contract for sale." The release of a tipper from an indemnity agreement was not a matter of which a purchaser could complain, since the benefit of the agreement was not part of the property being sold: it was not annexed to the land, and was a benefit vested in the vendor under an agreement which, on completion, would not survive to bind or to benefit the purchaser as the new owner. If the purchaser could not compel the vendor to assign that benefit, then the purchaser could not complain if the vendor chose not to do so.
1 Citers



 
 Re Land at Freshfields; ChD 27-Jan-1993 - Ind Summary, 22 February 1993; Times, 01 February 1993
 
John Goddard v National Development Corp Co [1993] UKPC 2
1 Feb 1993
PC
Templeman, Griffiths, Mustill, Slynn of Hadley, Woolf LL
Commonwealth, Land
(St. Lucia)
[ Bailii ]
 
London Borough of Sutton v Bolton and Another [1993] 68 P & CR 166; [1993] 91 LGR 566; [1993] 2 EGLR 181; [1993] 33 EG 91
3 Feb 1993
ChD
Paul Baker QC J
Planning, Land
Land had been owned by the authority and used as a children's home. After a boundary change taking the land outside its area, it sought to sell the land for development. The neighbours, claiming the benefit of a restrictive covenant allowing only one house on the land, objected. Using the 1972 Act, the authority purported to override the covenant by appropriating the property to planning purposes. They now sought validation of that appropriation. Held: The appopriation was unsuccessful. The section allowed no greater power than the power to acquire land for any particular purpose, and it could not have been acquired for that purpose, since the land was no longer within its district. The authority had to show the appropriation was for a purpose set out in the section, which did not include the satisfaction of the planning purposes of a different authority.
Local Government Act 1972 122 - Town and Country Planning Act 1971 127 - Town and Country Planning Act 1990 237 246

 
Regina v Minister of Agriculture Fish and Food ex parte Cox Times, 16 February 1993
16 Feb 1993
CA

Agriculture, Land
The temporary transferee of part of an agricultural unit which held a dairy quota, must come to be actually operating the agricultural unit before he could make a claim for the transfer of any associated milk quota.

 
Workers Trust and Merchant Bank Ltd v Dojap Investments Ltd Gazette, 07 April 1993; [1993] 2 WLR 702; [1993] 2 All ER 370; [1993] AC 573
22 Feb 1993
PC
Lords Keith, Jauncey, Donaldson, Browne-Wilkinson, Sir Christopher Slade
Land, Contract
(Jamaica) The purchaser at an auction had been obliged under the terms of the auction contract to pay a deposit of 25%. He failed to complete, and the vendor took the deposit by way of forfeit. The standard deposit payable would be 10%. The Court of Appeal of Jamaica ordered the return of the excess above 15%. Held: A penalty was "a contractual provision which requires one party in the event of his breach of the contract to pay or forfeit a sum of money to the other party is unlawful as being a penalty, unless such provision can be justified as being a payment of liquidated damages being a genuine pre-estimate of the loss which the innocent party will incur by reason of the breach. One exception to this general rule is the provision for the payment of a deposit (customarily 10% of the contract price) on the sale of land. " A deposit in excess of 10% of the purchase price (25%) was not properly described as 'earnest money' and may be treated rather as a penalty. As such, the whole deposit taken was repayable to the defaulting purchaser.
1 Cites

1 Citers


 
Greenwich London Borough Council v Secretary of State for Environment and Another Ind Summary, 15 March 1993; Times, 02 March 1993; [1993] CLY 439
2 Mar 1993
CA

Environment, Land
When the Secretary of State considered the offer of land in substitution for other land, an ancient woodland and site of special scientific interest, which was sought to be compulsorily acquired for a roadway, he was entitled to assess whether the exchanged land would be equally advantageous at the time when the exchange would take place, and to exercise a degree of flexibility.
Wildlife and Countryside Act 1981 - Acquisition of Land Act 1981 19

 
Waltham Forest Borough Council v Secretary of State for the Environment Ind Summary, 15 March 1993
15 Mar 1993
QBD

Land
A public enquiry was not needed where there was a proposal to compulsorily acquire common land under the Act, providing alternative land in substitution for the common land. The issues remained clear even though there were 800 local objections filed.
Acquisition of Land Act 1981 19


 
 Rhone and Another v Stephens; CA 17-Mar-1993 - Gazette, 17 March 1993; [1993] EGCS 3

 
 in Re Pavlou (A Bankrupt); ChD 17-Mar-1993 - Gazette, 17 March 1993; [1993] 1 WLR 1046; [1993] 3 All ER 955
 
Wrexham Maelor Borough Council v MacDougall and others [1993] EWCA Civ 24
1 Apr 1993
CA

Land, Damages

Lands Tribunal Act 1949
[ Bailii ]
 
Hogg v Campbell 1993 GWD 27-1712; Unreported, 2 April 1993
2 Apr 1993

Lord Clyde
Scotland, Land
The proposition that the dominant proprietors are the only persons interested in an easement cannot be taken too strictly. The right extends to the proprietors' guests, visitors, employees and others who come there for the purposes to which the land is being put. But that use must be within the intended scope of the servitude and it must not impose an undue burden on the servient tenement.
1 Citers


 
Surrey County Council v Bredero Homes Ltd [1993] 1 WLR 1361; [1993] 3 All ER 705; [1993] EWCA Civ 7; [1993] EWCA Civ 21; [1993] EGCS 77; [1993] 25 EG 141
7 Apr 1993
CA
Dillon, Steyn, Rose LJJ
Land, Damages, Planning
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to enable it to share in the planning gain if, as happened, planning permission was subsequently granted for the erection of a larger number of houses. The purpose was that the developer would have to apply and pay for a relaxation of the covenant if it wanted to build more houses. In breach of covenant the developer completed the development in accordance with the later planning permission, and the local authority brought a claim for damages. Held: The erection of the larger number of houses in breach of the covenant had not caused any financial loss to the local authority. The Court refused to countenance the possibility of awarding restitutionary damages for breach of contract, giving reasons why such an award should be exceptional. Wrotham Park type damages were defensible only on the basis that they were restitutionary in nature. The judge had awarded nominal damages of pounds 2, and the Court of Appeal dismissed the local authority's appeal.
Steyn LJ distinguished between a claimant's "positive or expectation interest" and his "negative" interest which enables a claim to be made for "reliance" losses.
1 Cites

1 Citers

[ Bailii ] - [ Bailii ]

 
 Wrotham Park Settled Estates v Hertsmere Borough Council; CA 12-Apr-1993 - Ind Summary, 12 April 1993; [1993] 33 RVR 56; [1993] 2 EGLR 15; [1991] 62 P&CR 652
 
City of Bradford Metropolitan Council v McMahon and McMahon Independent, 21 April 1993; [1994] 1 WLR 52; (1993) 25 HLR 534
21 Apr 1993
CA
Balcombe LJ
Housing, Local Government, Land
The right to buy a council house is dependant on the existence of a secure tenancy to which it is incidental, and that right disappears on the death of the tenant because there was no secure tenancy left upon which to base the right: "It is a creature of statute and is sui generis; if it is helpful to equate it to some more general right recognised by the courts I would prefer to describe it as analogous to a personal equity."
Housing Act 1985 121 ff
1 Citers



 
 William Sindall Plc v Cambridgeshire County Council; CA 21-May-1993 - Ind Summary, 28 June 1993; Times, 08 June 1993; [1993] NPC 82 CA; [1994] 1 WLR 1016; [1994] 3 All ER 932; [1993] EWCA Civ 14

 
 London and Blenheim Estates v Ladbroke Retail Parks Ltd; CA 1-Jun-1993 - Times, 01 June 1993; [1993] 4 All ER 157; [1994] 1 WLR 31

 
 Burton v Winters; CA 2-Jun-1993 - Gazette, 02 June 1993; [1993] 1 WLR 1077; [1993] 3 All ER 847
 
Brackenbank Lodge Ltd v Peart and Others Ind Summary, 28 June 1993; Times, 04 June 1993
4 Jun 1993
CA

Land
A right to stint, a grazing right defeated an assertion of an interest in the freehold, and the stint holders were awarded a proprietary interest in the moor as tenants in common.
1 Cites

1 Citers


 
Hanning and Others v Top Deck Travel Group Ltd Gazette, 09 June 1993; Times, 06 May 1993; [1993] NPC 73 CA; [1993] CLY 1821; [1994] P & C R 14
9 Jun 1993
CA
Lord Justice Dillon Lord Justice Kennedy And Sir Roger Parker
Land
The owner of a common appealed a finding that the neighbouring land owner had acquired by prescription a right of way across the common to use a track for commercial vehicles (buses) to get to the property (the bus depot). Held: An easement cannot become a right where the use of the route is illegal by virtue of a statutory provision. A use contrary to a statute cannot create an easement by prescription. The statute provided for a fine to be payable for someone using such a right of way other than by foot.
Law of Property Act 1925 193(1)
1 Cites

1 Citers


 
Co-operative Insurance Society Ltd v Hastings Borough Council Times, 23 June 1993; 91 LGR 608
23 Jun 1993
ChD
Vinelott J
Land, Local Government
The local authority made a CPO in 1981 in respect of a sports ground. The applicants later acquired the land. In 1989 the order was confirmed and in March 1989 a vesting order was made. The authority was unable to afford to complete the purchase. In October 1992, the applicant sought a declaration that the order was no longer exercisable. Held: A compulsory purchase order cannot be kept alive beyond the three year limit after its publication. The service of the particulars under 3(3) of the 1981 Act did not exercise the powers given by the order; that could only be done by a notice to treat. Accordingly the notice had lapsed. The failure by parliament when passing legislation in a related field to overrule a decision did not have the effect of confirming that decision.
Compulsory Purchase (Vesting Declarations) Act 1981 4 - Compulsory Purchase Act 1965 4 5 - Acquisition of Land Act 1981 3(1) 26(1) - Planning and Compensation Act 1991 67
1 Cites



 
 Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd; HL 22-Jul-1993 - 1993 SLT 1318; [1993] UKHL 15; [1993] EG 146 (CS); 1993 SC (HL) 44; 1993 SCLR 798
 
Sussex Investments Ltd and Another v Jackson and Cornell Times, 29 July 1993; Gazette, 02 August 1993
29 Jul 1993
CA

Torts - Other, Land
Where the owner was registered as proprietor of the land between the towpath and the water's edge, the securing of boats at the water's edge and the laying out of gangplanks, is a trespass to the land despite the existence of a right of towage.

 
Mid-Glamorgan County Council v Ogwr Borough Council and Others Ind Summary, 22 November 1993; Times, 05 November 1993
5 Nov 1993
CA

Land
There was no need to serve a notice to treat on each commoner for a compulsory purchase order to proceed.
Compulsory Purchase Act 1965 5 Sch 4
1 Citers


 
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