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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: 1995 To: 1995

This page lists 43 cases, and was prepared on 02 April 2018.

 
Sceneout Ltd v Central Manchester District Council [1995] RVR 200; [1995] 34 EG 77
1995


Land
The tribunal calculated compensation in a total extinguishment by reference to the value to the owner. In this case a multiplier of just under two was used.
1 Citers


 
UCB Bank plc v Beasley [1995] NPC 144
1995


Land

1 Citers


 
Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381
1995
CA
Aldous LJ
Land, Contract
The First Defendant agreed to purchase a business from the Second Defendant for £160,000. £80,000 was raised by way of a secured loan from the plaintiff and was paid to the Second Defendant. The balance of £80,000 was left outstanding and secured by way of a second charge against the property. The arrangements for the sale and purchase of the business and the property were embodied in a contract. The agreement said that the Plaintiffs' charge would rank before the Second Defendant's. A Clause provided that the Second Defendant was to retain the use of the property until the whole of the principal money and. interest due under the agreement had been paid. The transfer and mortgage deed were co-dated with the contract. The First Defendant failed to pay both the Second Defendant, and also the mortgage. In possession proceedings the Second Defendant defended on the grounds that the Plaintiffs were not entitled to possession of the property, the Second Defendant's overriding interest in the property taking priority over the first legal charge. It was argued that the Second Defendant had an unpaid vendor's lien which had priority over the first charge. Held: The submission failed. There was no vendor's lien because the Second Defendant had received all he bargained for when he received the second charge, and the rights under the clause were a contractual licence which could not give rise to an overriding interest. Only proprietary interests can be overriding.
The submission also failed because of the decision in Cann.
Aldous LJ continued: "The submission also fails because the charges, the agreement and the transfer were all signed on the same day namely June 1. Thus, his right to occupation under clause 6 did not accrue prior to the creation of the respondent's charge. In Abbey National Buildins Society v. Cann the House of Lords decided that the relevant date for determining the existence of an overriding interest was the date of registration of the estate affected. In this case that date was August 3, 1990. They went on to hold that to acquire an overriding interest against a chargee by virtue of occupation, the person claiming the interest had to have been in actual occupation at the time of the creation of the legal estate. In this case that was June 1, 1990. They concluded that when a purchaser relied on a building society, such as the respondent, to enable completion, the transactions involved were one indivisible transaction and, therefore, there was no scintilla temporis during which the right to occupation vested free of charge.
The same reasoning is applicable to the facts of this case. On June 1, the contract, the transfer and the legal charges were completed. They formed an indivisible transaction and there was no scintilla temporis during which any right to occupation under clause 6 of the agreement vested in the appellant which was free of the respondent's charge. Thus, the right given by clause 6 did not provide an overriding interest under section 70(1)(g) of the 1925 Act even if the right was a proprietary right.
Mr Collins submitted that that conclusion ignored the reality of the position and that at all times the appellant was in occupation. However that submission ignores the reality of the legal position. The appellant gave up his right to occupy as an unpaid vendor by signing the agreement and thereby obtained permission to occupy, which permission did not take effect prior to the respondent's charge."
1 Citers


 
CIN Properties Ltd v Rawlins [1995] 2 EGLR 130
1995
CA
Lord Phillips
Land
Young men were barred from a shopping centre. The private company owner considered that their behaviour was a nuisance. Held: The owner had the right to determine any licence which the applicants might have had to enter the Centre. The local authority had not entered into any walkways agreement with the company which would have dedicated the walkways or footpaths as public rights of way, and which would have given the local council the power to issue bye-laws regulating use of those rights of way. Nor was there any basis for finding an equitable licence.
Highways Act 1971 18(1) - Highways Act 1980 35
1 Citers



 
 Castle Phillips Finance v Piddington; CA 1995 - [1995] 1 FLR 783

 
 Regina v Suffolk County Council Ex Parte Steed and Steed; Admn 1995 - (1995) 70 P&CR 487
 
National and Provincial Building Society v Ahmed [1995] 2 EGLR 127
1995
CA
Millett, Russell and Rose LJJ
Land
A mortgagor's equity of redemption is extinguished when the mortgagee, in the exercise of his power of sale, enters into a contract of sale of the mortgaged property.
Millett LJ said: "The purpose of making an order under section 36 of the Administration Act 1970 is to enable a mortgagor who has fallen into arrears with the payment of the mortgage instalments to resume his payments and to pay off the arrears with a view to the ultimate redemption of the mortgage by instalments in the ordinary way. But that result can no longer be achieved once the mortgagor's equity of redemption has been extinguished by the exchange of contracts of sale of the mortgaged property by the mortgagee to a purchaser. Of course, if the order for possession had not been executed so that the court still retained jurisdiction to suspend it, and the mortgagor or his tenants were in possession at the date of the contract for sale so that the purchaser had notice of the mortgagor's rights, the mortgagee would not be able to rely upon the contract to defeat the mortgagor's application. But that is not the present case."
Administration of Justice Act 1970 36
1 Citers



 
 Jacques v Secretary of State for the Environment; CA 1995 - [1995] JPL 1031
 
Harrow London Borough Council v Donohue [1995] 1 EGLR 257
1995
CA
Waite LJ, Hirst LJ, Sir Stephen Brown
Land, Litigation Practice
The plaintiff complained at the defendant's garage, half of which had been built on the plaintiff's land. The judge had awarded damages in lieu of a mandatory injunction for its removal. The Council appealed. Held: Where a landowner had been "totally dispossessed by the defendant's "encroaching building" the plaintiff was entitled "as of right to a mandatory order" although it suggested that the court, depending on the circumstances, might "well retain a limited discretion".
1 Citers


 
Re Snaith and Dolding's Application [1995] 71 P&CR 104
1995
LT
Judge Bernard Marder QC
Land
The applicants sought modification of a covenant, to enable them to build a second house on a single plot within a building scheme. Held: "The position of the Tribunal is clear. Any application under section 84(1) must be determined upon the facts and merits of the particular case, and the Tribunal is unable to bind itself to a particular course of action in the future in a case which is not before it… It is however legitimate in considering a particular application to have regard to the scheme of covenants as a whole and to assess the importance to the beneficiaries of maintaining the integrity of the scheme. The Tribunal has frequently adopted this approach.
Insofar as this application would have the effect if granted of opening a breach in a carefully maintained and outstandingly successful scheme of development, to grant the application would in my view deprive the objectors of a substantial practical benefit, namely the assurance of the integrity of the building scheme. Furthermore I see the force of the argument that erection of this house could materially alter the context in which possible future applications would be considered."
Law of Property Act 1925 84
1 Citers


 
Re Bromor Properties Limited [1995] 70 P & CR 569
1995
LT
Mr Clarke
Land
On an application to vary a restrictive covenant preventing further building, construction disturbance was treated as one of number of factors justifying refusal to modify.
Law of Property Act 1925 84
1 Cites

1 Citers


 
Elliott v Safeway Stores plc [1995] 1 WLR 1396
1995

Judge Paul Baker QC
Land
Proposed use of land would be in breach of covenant when it was put to a use which was ancillary to the use of adjoining land. Held: The allegation failed. There would only have been a breach if the land in question had been used for the purpose for which the adjoining land was to be put.
1 Citers


 
Director of Buildings and Land v Shun Fung Ironworks Limited [1995] 2 AC 111
1995
PC
Lord Nicholls
Damages, Land
The House considered a claim for compensation in the form of loss of profits. Held. The loss of profits in the shadow period, being the period after the possibility that the claimant's site might be resumed became known and which had a paralyzing effect on its operations, were awarded.
Lord Nicholls held that such losses might be recovered if they satisfy three conditions, namely, that the losses were causally connected with the resumption; that they were not too remote; and that they were not losses which a reasonable person would have avoided.
Lord Nicholls said: "The purpose of these provisions, in Hong Kong and England, is to provide fair compensation for a claimant whose land has been compulsorily taken from him. This is sometimes described as the principle of equivalence. No allowance is to be made because the resumption or acquisition was compulsory; and land is to be valued at the price it might be expected to realise if sold by a willing seller, not an unwilling seller. But subject to these qualifications, a claimant is entitled to be compensated fairly and fully for his loss. Conversely, and built into the concept of fair compensation, is the corollary that a claimant is not entitled to receive more than fair compensation: a person is entitled to compensation for losses fairly attributable to the taking of his land, but not to any greater amount. It is ultimately by this touchstone, with its two facets, that all claims for compensation succeed or fail."

 
Porter v Secretary of State for Transport [1995] 2 EGLR 175
1995
LT
Judge Marder QC
Land, Damages, Estoppel
A positive section 17 (or section 18) certificate has been issued on the basis that the relevant land would be developed, or could only be developed, in conjunction with other land in the vicinity. It was argued that no assumption arose as a matter of law that planning permission would be granted for such development of the other land. Held. In such circumstances an issue estoppel arose so as to preclude the acquiring authority from reopening the issues of fact on the basis of which a section 18 certificate had been granted.
1 Citers


 
Torbay Borough Council v Cross (1995) 159 JP 682
1995
QBD
Dyson J, McCowan LJ
Land
The highway was 15 metres wide and pedestrianised. Shop owners displayed goods outside their shops, projecting no more than five percent of the total width of the road. The magistrates acquitted them of obstruction. Held. The appeal was allowed and the case remitted to them with a direction to convict. A possible exception to the rule in Seekings was on the principle of de minimis, where there was a fractional projection. Dyson J held that the de minimis principle could not be applied. That principle was reserved for cases of fractional obstructions, which this case was clearly not.
1 Cites

1 Citers


 
Regalian Properties Plc and Another v London Docklands Development Corporation Gazette, 25 January 1995; [1995] 1 WLR 212; [1995] Ch 212
25 Jan 1995
ChD
Rattee J
Land, Contract
Negotiations intended to result in a contract were expressly on the basis that each party was free to withdraw from the negotiations at any time, the costs of a party in preparing for the intended contract were incurred at its own risk and it was not entitled to recover them by way of restitution if for any reason no contract resulted. It was held that by the deliberate use of the words "subject to contract" in their usual sense, each party had accepted that if no contract was concluded any resultant loss should lie where it fell. Held: The costs of the failed negotiations were not recoverable. The phrase 'subject to contract' is so widely used that parties must be assumed to know its effect without having it explained.
1 Citers



 
 Mid-Glamorgan County Council v Ogwr Borough Council and Others; HL 3-Feb-1995 - Gazette, 08 March 1995; Times, 03 February 1995
 
Cin Properties Ltd v Rawlins and Others Times, 09 February 1995
9 Feb 1995
CA

Land
If there is no express dedication of a public right of way through it, the owners of a shopping mall can choose to exclude anyone.

 
Director of Buildings and Lands v Shun Fung Ironworks Ltd Times, 27 February 1995; [1995] 2 AC 111
20 Feb 1995
PC
Lord Nicholls, Lord Keith of Kinkel, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick
Land, Commonwealth, Damages
Compensation is payable for losses properly anticipating resumption of possession of the land. The principle of equivalence gives rise to the statutory right to interest under section 11(1). The council explained the conceptual foundation of the discounted cash flow basis of calculation: "In this calculation the discount rate, or capitalisation rate, comprises the rate at which an amount of money payable at a future date should be reduced to arrive at its present value. Its present value is the price which a person would pay now for the right or prospect of receiving the amount of money in question at the future date. Three ingredients can be identified in the discount rate. One is the rate of return the potential purchaser would expect on his money, assuming that the payment to him at the future date is free of risk. A second ingredient is the allowance the potential purchaser would make because of the likely impact of inflation. He is buying today, in today's currency, the right to be paid at a future date an amount which, when paid, will be paid in tomorrow's depreciated currency. The third ingredient is the risk factor. The greater the risk that the purchaser will not receive in due course the future payments he is buying, the higher the rate of return he will require."
Compulsory Purchase Act 1965 11(1)
1 Citers

[ PC ]
 
Ho Young v Bess (Saint Vincent) Gazette, 22 February 1995
22 Feb 1995
PC

Land, Commonwealth
Land forfeiture rule was discretionary not automatic-passed on death.

 
Robinson v Adair Times, 02 March 1995
2 Mar 1995
QBD
Dyson J
Land, Limitation
The Truro Crown Court had allowed Mr Adair's appeal against his conviction for obstructing a highway. The prosecutor appealed. Held: It had to be decided whether a particular road had become by presumed dedication a public highway. The use relied on constituted an offence under section 34(1) of the 1988 Act. A claim of long user which was based upon acts prohibited by statute cannot found a claim for a public right of way. The court could see no rational distinction between acquisition of a private easement by presumed grant after long illegal user and the presumed dedication of a highway after long illegal user.
Highways Act 1980 137 - Road Traffic Act 1988 34(1)
1 Cites

1 Citers



 
 Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd); CA 4-Mar-1995 - Times, 04 March 1995; Independent, 15 March 1995; [1995] 2 All ER 929; [1995] Ch 259; [1995] 26 EG 129
 
Emslie and Simpson Ltd v Aberdeen City DC Times, 10 March 1995
10 Mar 1995
IHCS

Land
Acquiring authority to pay expenses of application to Lands Tribunal.


 
 Regina v Somerset County Council Ex Parte Fewings and Others; CA 22-Mar-1995 - Gazette, 26 April 1995; Times, 23 March 1995; Independent, 22 March 1995; [1995] 1 WLR 1037; [1995] EWCA Civ 24; (1995) 7 Admin LR 761; [1995] 3 All ER 20
 
Abbott v Minister for Lands [1895] AC 425; [1895] UKPC 17
30 Mar 1995
PC
Lord Herschell LC
Constitutional, Land
(From the Supreme Court for New South Wales) When considering what was a 'vested right' for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the community or any class of them into an accrued or vested right to which the presumption applies, the particular beneficiary of the right must have done something to avail himself of it before the law is changed. Since the purpose of legislation is to alter the existing legal situation, there is no presumption that it will not alter rights which individuals have, but have not exercised.
1 Citers

[ Bailii ]
 
Hereford and Worcester County Council v Pick (1995) 71 P & CR 231
1 Apr 1995

Stuart-Smith LJ
Land
The issue was whether a presumed dedication of a road as a public highway could result from twenty years or more of uninterrupted public use in breach of section 34(1) of the 1988 Act. The court was considering whether a footpath, alleged to have become a public highway for vehicles by presumed dedication, had been unlawfully obstructed. Held: The user relied on for the presumed dedication would have constituted a public nuisance to pedestrians using the footpath and for that reason the user could not lead to a presumed dedication. "Public rights cannot be based on long use where the user is prohibited by statute."
Road Traffic Act 1988 34(1)
1 Cites

1 Citers


 
Overseas Investment Services Ltd v Simcobuild Construction Ltd and Another Ind Summary, 12 June 1995; Times, 21 April 1995
21 Apr 1995
CA

Land, Registered Land
Grant of s38 rights in a Highways agreement didn't operate as grant of future public rights of way, nor create an overriding interest.
Highways Act 1980 38(3)(b) - Land Registration Act 1925 70(1)(a)
1 Cites


 
Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931
3 May 1995

Harman J
Land
The court considered that the time period of twenty years necessary to establish a right of common under the Act was the period ending with the date of the application. Held: The court rectified the register under section 14 so as to remove the registration of an area of land between a row of houses occupied by military personnel and the Ministry's airbase. The user by the inhabitants of the Ministry's houses was not "as of right" as was required.
Harman J said that his views on locality were a second ground for his decision: "Other points were argued. In particular, Mr Drabble QC argued that it was impossible for a village green to be created by the exercise of rights save on behalf of some recognisable unit of this country--and when I say recognisable I mean recognisable by the law. Such units have in the past been occasionally boroughs, frequently parishes, both ecclesiastical and civil, and occasionally manors, all of which are entities known to the law, and where there is a defined body of persons capable of exercising the rights or granting the rights.
The idea that one can have the creation of a village green for the benefit of an unknown area--and when I say unknown I mean unknown to the law, not undefined by a boundary upon a plan, but unknown in the sense of unrecognised by the law-then one has, says Mr Drabble, no precedent for any such claim and no proper basis in theory for making any such assertion. In my belief that also is a correct analysis." and "Upon that basis there can be no possible claim of right here arising, and the activities are not activities which could give rise to a claim of right sufficient to found a basis that the activity is enough to create a village green. That would be, in my view, the end of the case and it would then be just to rectify the register because, in my view, it would be unfair and burdensome, that is unjust, to a landowner to have an entry made upon a register which hampers and burdens him in the exercise of his rights over his own land when those burdens have no proper existence at all in law. My judgment therefore is that the motion should succeed".
Commons Registration Act 1965
1 Citers


 
Dunlop v Secretary of State for the Environment Times, 05 May 1995
5 May 1995
QBD

Land
Designation as 'private carriage road' not a dedication or lost modern highway grant.


 
 Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another; ChD 27-Jun-1995 - Ind Summary, 24 July 1995; Times, 27 June 1995; Gazette, 13 July 1995; [1996] Ch 1
 
British Coal Corporation v Gwent County Council Times, 18 July 1995; Independent, 06 July 1995
6 Jul 1995
CA

Land
Compensation for subsidence damage measured by cost of repair and re-instatement. Lands Tribunal has no general power to award interest on compensation.
Law Reform (Miscellaneous Provisions) Act 1934 3(1) - Coal Industries Act 1975 2(4)(a)

 
Waverley Borough Council v Fletcher Independent, 14 July 1995; Times, 14 July 1995
14 Jul 1995
CA

Land
A brooch, which was not treasure trove belongs to the owner of the land on which it was found under the surface.

 
Evans v Waverley Borough Council Times, 18 July 1995
18 Jul 1995
CA

Environment, Land, Local Government
A Local Authority has no power to change a tree preservation order to 'woodland' on the making of the order.
Town and Country Planning Act 1990 199-1

 
Sharp and Another v Thomson and Others Times, 25 July 1995; 1995 SC 455
25 Jul 1995
IHCS

Land
The Plaintiff was bound by a floating charge which crystallised on the land before registration. Scots law, following Roman law, is unititular, which means that only one title of ownership is recognised in any one thing at any one time.
1 Citers



 
 First National Bank Plc v Thompson; CA 25-Jul-1995 - Ind Summary, 31 July 1995; Times, 25 July 1995; Gazette, 15 September 1995
 
Firstpost Homes Ltd v Johnson and Others Gazette, 15 September 1995; Times, 14 August 1995; [1995] 1 WLR 1567; [1995] 4 All ER 355
14 Aug 1995
CA
Peter Gibson, Balcombe, Hutchison LJJ
Land, Contract
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties. Held: The requirements of Section 2 had not been satisfied because it was the letter which contained the contract which referred to the plan and incorporated it and it was the letter which under Section 2 had to be signed. A typed signature is insufficient for a land contract. Old Frauds cases are irrelevant under the new regime introduced for exchange and otherwise of contracts for the sale of land.
New provisions on signatures are to stand free of both old cases and statutes on the topic. The purpose of section 2 was to introduce a new and stricter regime in relation to contracts for the creation or transfer of interests in land.
Peter Gibson LJ said: "The point is a short one and largely one of first impression, though in considering whether the two sheets of paper are one document or two for the purposes of s 2 of the 1989 Act it is important to bear in mind that the section expressly contemplates that one document may incorporate the terms of a second document by reference. It seems to me that the natural way of looking at the letter enclosing the plan, to use the significant language of the letter, is to treat the letter alone as one document and the plan as another document, the terms of which are incorporated in the letter. That incorporation comes about because of the reference in the letter to the plan as showing what are the 15.64 acres of land at the rear of Fulfen Farm." and "the Act of 1989 seems to me to have a new and different philosophy from that which the Statue of Frauds 1677 and section 40 of the Act of 1925 had."
Balcombe LJ: "Like the proverbial elephant, a document may be difficult to define but it is easy to recognise".
Law of Property (Miscellaneous Provisions) Act 1989 2
1 Citers


 
Melluish (Inspector of Taxes) v BMI (No 3) Ltd and Related Appeals Gazette, 08 November 1995; Times, 16 October 1995; Ind Summary, 06 November 1995; [1996] AC 454
16 Oct 1995
HL
Lord Browne-Wilkinson
Corporation Tax, Income Tax, Land
Chattels which became affixed to a lessee's land became fixtures, and were not available for tax allowances calculations. Lord Browne-Wilkinson said: "The terms expressly or implicitly agreed between the fixer of the chattel and the owner of the land cannot affect the determination of the question whether, in law, the chattel has become a fixture and therefore in law belongs to the owner of the soil . . The terms of such agreement will regulate the contractual rights to sever the chattel from the land as between the parties to that contract and, where an equitable right is conferred by the contract, as against certain third parties. But such agreement cannot prevent the chattel, once fixed, becoming in law part of the land and as such owned by the owner of the land so long as it remains fixed." and "the intention of the parties as to ownership of the chattel fixed to the land is only material so far as such intention can be presumed from the degree and object of the annexation."
Capital Allowances Act 1990 24(1) 53(1)
1 Cites

1 Citers


 
Stockholm Finance Ltd v Garden Holdings Inc [1995] LTL
26 Oct 1995


Land
Robert Walker J considered how a court should decide on whether a person was in actual occupation of a house: "Whether a person's intermittent presence at a house which is fully furnished, and ready for almost immediate use, should be seen as continuous occupation marked (but not interrupted) by occasional absences, or whether it should be seen as a pattern of alternating periods of presence and absence, is a matter of perception which defies deep analysis. Not only the length of any absence, but also the reason for it, may be material (a holiday or a business trip may be easier to reconcile with continuing and unbroken occupation than a move to a second home, even though the duration is the same in each case). But there must come a point at which a person's absence from his house is so prolonged that the notion of his continuing to be in actual occupation of it becomes insupportable; and in my judgment that point must have been reached in this case, long before Mr Dawkins visited the house on 4 January 1990 (and still more so, long before 20 February 1990). By then Princess Madawi had not set foot in the property for over a year: she had for over a year been living with her mother in the Islamic household at Riyadh."
1 Citers



 
 Barclays Bank Plc v Hendricks and Another; ChD 3-Nov-1995 - Independent, 03 November 1995; [1996] 1 FLR 258
 
Regina v Secretary of State for Transport Ex Parte Owen Times, 13 November 1995; [1995] 2 EGLR 213
13 Nov 1995
QBD

Land, Damages
The damages awarded for a compulsory purchase were reduced. The vendor had foreseen the reduction in the value of the land. A significant depreciation of value comes within the expression 'seriously affected' in section 246(2A).
Highways Act 1980 246(2A)
1 Cites

1 Citers


 
Firglen Ltd v Secretary of State for the Environment Times, 16 November 1995
16 Nov 1995
ChD

Land
Interim injunction discharged because specific performance action was crown proceedings.
Crown Proceedings Act 1947 23(2)(a)

 
Cheltenham and Gloucester Building Society Plc v Norgan Gazette, 17 January 1996; Independent, 14 December 1995; Times, 08 December 1995; [1995] EWCA Civ 11; [1996] 1 WLR 343; [1996] 1 All ER 449
5 Dec 1995
CA
Evans, Waite LJJ, Sir John May
Consumer, Housing, Land
The starting point for assessing the period of time over which a court should order the repayment of arrears under a mortgage, when considering the need for a possession order, is the remaining balance of mortgage term.
Administration of Justice Act 1970 30 - Administration of Justice Act 1973 8
[ Bailii ]
 
Regina v Northumbrian Water Ltd Ex Parte Able UK Ltd Times, 18 December 1995; (1995) 72 PC&R 95
18 Dec 1995
QBD
Carnwath J
Land
A notice to treat on compulsory purchase can be withdrawn even after possession has been taken. The acquiring authority acquires an equitable interest in such land when the compensation has been assessed.
1 Citers


 
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