J A Pye (Oxford) Ltd and Others v Graham and Another: HL 4 Jul 2002

The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had overstayed the expiration of a grazing tenancy, and been asked to leave but had not been dispossessed.
Held: The claimant’s appeal was allowed. The issue was only whether or not the claimant had been in actual possession of the land – had the defendant squatter dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the owner’s consent? Older cases relating to an idea of ‘non-adverse possession’ should not be followed. Actual possession for one own or another’s benefit was required. The intention needed was to possess, not necessarily to ‘own’ the land. The only question after the 1833 Act was whether the squatter had been in possession in the ordinary sense of that word for the requisite period without the consent of the owner. The requirement that the land is in the possession of a person in whose favour time can run is not directed to the nature of the possession, but to the capacity of the squatter or other person in possession of the land.
An offer to purchase the paper owner’s interest need not defeat a claim (Ocean Estates).
Lord Hope of Craighead discussed the claim under Human Rights. That question: ‘….is not an easy one, as one would have expected the law – in the context of a statutory regime where compensation is not available – to lean in favour of the protection of a registered proprietor against the actions of persons who cannot show a competing title on the register. Fortunately…….a much more rigorous regime has now been enacted in Schedule 6 to the 2002 Act. Its effect will be to make it much harder for a squatter who is in possession of registered land to obtain title against the wishes of the proprietor. The unfairness in the old regime which this case has demonstrated lies not in the absence of compensation, although that is an important factor, but in the lack of safeguards against oversight or inadvertence on the part of the registered proprietor.’

Lord Bingham of Cornhill, Lord Mackay of Clashfern, Lord Browne-Wilkinson, Lord Hope of Craighead and Lord Hutton
Times 05-Jul-2002, [2002] UKHL 30, [2002] 3 All ER 865, [2002] 3 WLR 221, [2003] 1 AC 419, [2002] NPC 92, [2002] HRLR 34, [2003] 1 P and CR 10, [2002] 28 EGCS 129, [2002] 2 P and CR DG22
House of Lords, Bailii
Limitation Act 1980 15 Sch 1 para 1 Sch 1 para 8, European Convention on Human Rights 1
England and Wales
Citing:
Approved ‘Remarkable’Powell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘It will be convenient to begin by . .
DisapprovedLittledale v Liverpool College CA 1900
The mere storage of items in a property was insufficient to demonstrate the necessary intention to dispossess the rightful owner. It was a mere exercise of the rights under an easement. Enclosure of land is not necessarily decisive. Lord Lindley MR . .
DisapprovedLeigh v Jack CA 11-Dec-1879
The plaintiff’s predecessor in title (Mr Leigh) had laid out part of his estate as proposed streets to be known as Grundy Street and Napier Place. He conveyed to the defendant certain land described as being ‘bounded by’ Grundy Street and Napier . .
CitedOcean Estates Ltd v Pinder HL 1969
The court asked whether the sufficiency of adverse possession might be qualified either by the intentions of the paper owner or the squatter’s willingness to pay for their occupation if asked. Lord Diplock: ‘Where questions of title to land arise in . .
Appeal fromJ A Pye (Oxford) Ltd and Another v Caroline Graham and Another CA 6-Feb-2001
Where a tenant under a grazing license had stayed over after the end of the tenancy, and had been refused a renewed licence, and had continued to graze the land for over twelve years, the mere overstaying was not enough to evidence an animus . .
At first instanceJ A Pye and Another v Graham and Another ChD 14-Mar-2000
The fact alone of being prepared to take a licence of land would not defeat an application for adverse possession, but a request for a licence would be relevant. The adverse possession commenced from the time when the licence expired, given that a . .

Cited by:
Appealed toJ A Pye (Oxford) Ltd v South Gloucestershire District Council and Others CA 29-Mar-2001
Where there was an agreement between an applicant and the planning authority under section 106 of the new Act, with respect the undertaking of work in return for the grant of planning permission, there was no requirement for there to be a direct . .
CitedTopplan Estates Ltd v David Townley CA 27-Oct-2004
The registered proprietor of land appealed a finding that the defendant had established adverse possession of their land. The claimant had occupied it as part of his farm. Originally there had been a grazing tenancy. The tenancy was terminated, and . .
CitedTower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
CitedChapman and Another v Godinn Properties Ltd and others CA 27-Jun-2005
Dispute over right of way over land subject to claim for possessory title. ‘But each case must turn on its own facts. In a case of this nature, the court must ask itself what it is that would be expected of somebody in possession of land of this . .
At House of LordsJ A Pye (Oxford) Ltd v The United Kingdom ECHR 15-Nov-2005
The claimants had been the registered proprietors of land, they lost it through the adverse possession of former tenants holding over. They claimed that the law had dispossessed them of their lawful rights.
Held: The cumulative effect of the . .
CitedInglewood Investments Company Ltd v Baker CA 8-Nov-2002
The court considered a claim for the adverse possesion of land.
Held: Dyson LJ said: ‘to establish a claim of adverse possession for the requisite period of 12 years it is necessary to establish: (1) actual possession; (2) an intention to . .
CitedAllen v Matthews CA 13-Mar-2007
The defendants appealed an order refusing title by adverse possession to registered land. They denied that the limitation period had been restarted by their solicitor’s letter acknowledging the title.
Held: The letter must be read as a whole. . .
CitedGodmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
CitedClear Channel United Kingdom Ltd, Regina (on the Application of) v First Secretary of State and Another Admn 14-Oct-2004
The claimant sought a declaration that it had a tenancy for its occupation by an advertising station, and that it had protection under the 1954 Act. The defendant council said that only a licence had been granted.
Held: The grants included the . .
CitedJ A Pye (Oxford) Ltd v The United Kingdom ECHR 30-Aug-2007
UK Advers Possession Law – Not Compliant
The claimant had said that the UK law which allowed it to lose land by virtue of twelve year’s occupation by a squatter, interfered with its right to ownership of property.
Held: The UK law on adverse possession did comply with the Convention. . .
CitedOfulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
CitedNational Westminster Bank Plc v Ashe (Trustee In Bankruptcy of Djabar Babai) CA 8-Feb-2008
The mortgagees had made no payments under the charge for more than twelve years, and had remained in possession throughout. They argued that the bank were prevented from now seeking to enforce the charge. The bank argued that the possession had not . .
CitedRoberts v Crown Estate Commissioners CA 20-Feb-2008
The commissioners sought to claim title to a foreshore by adverse possession. The claimant asserted that he had acquired title in his capacity of Lord Marcher of Magor which had owned the bed of the estuary since the Norman Conquest, and that the . .
CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
CitedJohn Laing Construction Ltd v Amber Pass Ltd ChD 7-Apr-2004
The landlord resisted the exercise of a break clause saying that the entire premises had not been vacated. The difference was as to whether mere vacation was enough, or whether the tenant had to do some further positive act. The tenant had left . .
CitedJones v London Borough of Merton CA 16-Jun-2008
The court was asked ‘If a former secure tenant of a dwelling-house who has become a ‘tolerated trespasser’ in it decides to cease to occupy it, does his liability to pay mesne profits to his former landlord in respect of the dwelling-house cease . .
CitedLancashire County Council v Buchanan Admn 7-Nov-2007
The defendant estate agent was prosecuted for misdescribing the ability of his client to convey good title to the land offered. The seller did not initially have a registered possessory title to part of the land.
Held: The agent’s appeal . .
CitedSmith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
CitedClarence House Ltd v National Westminster Bank Plc CA 8-Dec-2009
The defendant tenants, anticipating that the landlord might delay or refuse consent to a subletting entered into a ‘virtual assignment’ of the lease, an assignment in everything but the deed and with no registration. The lease contained a standard . .
CitedBaxter v Mannion ChD 18-Mar-2010
B appealed against an order for rectification against him of the land register returning ownership to M. B had obtained registration with possessory title, claiming to have kept horses on the field for many years in adverse possession of it. M had . .
CitedWilson and Another v Grainger ChD 4-Dec-2009
The claimants appealed against a decision of the Adjudicator that they had not acquired a piece of their neighbour’s land by adverse possession, on the basis that their use had been by virtue of an oral licence. The judge had found the occupation to . .
CitedThe Port of London Authority v Ashmore CA 4-Feb-2010
The Port sought to register ownership of the river bed and tidal foreshore. The defendant’s boat had been moored at a wharf, and he claimed adverse possession. The court was asked whether it was possible to acquire any title by adverse possession to . .
CitedStar Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
CitedSmith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
CitedBalevents Ltd v Sartori ChD 29-Sep-2011
A strip of land had at one point been left aside for an anticipated road widening which never took place. The defendant had eventually obtained a registered possessory title to it. The claimant, owner of a neighbouring plot, now challenged that . .
CitedZarb and Another v Parry and Another CA 15-Nov-2011
The parties disputed the position of the boundary between their neighbouring properties. The appellant Z had succeeded in establishing that the the boundary was as they decribed on paper, but the respondents had succeeded in their claim for adverse . .
CitedChambers v London Borough of Havering CA 20-Dec-2011
The defendant appealed against an order for him to surrender possession of land he had claimed by adverse possession. The Council was the registered proprietor. The defendant said he had used the land since 1981 for dumping of motor vehicle parts. . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 05 December 2021; Ref: scu.174187

Prudential Assurance Company Ltd v Waterloo Real Estate Inc: ChD 13 May 1998

The owner of a party wall who had allowed a neighbour exclusive use of it without objection for a period over twelve years, could lose his interest in the wall by the adverse possession of that neighbour.

Times 13-May-1998
England and Wales
Cited by:
Appeal FromPrudential Assurance Company Limited v Waterloo Real Estate Inc CA 22-Jan-1999
Where title to land was to be established by adverse possession, the claim had to be unequivocal only in the sense that the intention to possess was clear to the world. It was unnecessary for the dispossessed party to know of the title he lost. . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 05 December 2021; Ref: scu.85071

Buckinghamshire County Council v Moran: CA 13 Feb 1989

The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and using the land for their own purposes. The evidence was that the Plaintiff, the owner of the paper title, had no immediate use for the land but intended in due course to dedicate it for the purposes of a road diversion. Accordingly, the use made of the disputed land by the Defendants did not interfere with the proposed future use to which the true owner intended to devote the land.
Held: The Defendant had established a title by adverse possession, and the fact that the acts of ownership relied upon to establish his claim to adverse possession were not inconsistent with the use to which the true owner intended to put the land in the future was irrelevant. ‘Possession of land would never be ‘adverse’ within the meaning of the Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title, and his licence has not been duly determined, he can not be treated as having been in ‘adverse possession’ as against the owner with the paper title.’
Nourse LJ said: ‘The essential difference between prescription and limitation is that in the former case title can be acquired only be possession as of right. That is the antithesis of what is required for limitation, which perhaps can be described as possession as of wrong. It can readily be understood that with prescription the intention of the true owner may be of decisive importance, it being impossible to presume a grant by someone whose intention is shown to have been against it. But with limitation it is the intention of the squatter which is decisive. He must intend to possess the land to the exclusion of all the world, including the true owner, while the intention of the latter is, with one exception, entirely beside the point. In order that title to land may be acquired by limitation, (1) the true owner must either (a) have been dispossessed, or (b) have discontinued his possession, of the land; and (2) the squatter must have been in adverse possession of it for the statutory period before action brought . .’ Hoffmann LJ said that what is required is ‘not an intention to own or even an intention to acquire ownership but an intention to possess.’
Slade LJ referred to Powell v MacFarlane and said: ‘I agree with the judge that ‘what is required for this purpose is not an intention to own or even an intention to acquire ownership but an intention to possess’ – that is to say, an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title. No authorities cited to us establish the contrary proposition.’

Slade LJ, Nourse LJ, Butler-Sloss LJ
[1990] 1 Ch 623, [1989] EWCA Civ 11, [1990] Ch 632, [1989] 2 All ER 255
Bailii
Limitation Act 1980 15
England and Wales
Citing:
DisapprovedLeigh v Jack CA 11-Dec-1879
The plaintiff’s predecessor in title (Mr Leigh) had laid out part of his estate as proposed streets to be known as Grundy Street and Napier Place. He conveyed to the defendant certain land described as being ‘bounded by’ Grundy Street and Napier . .
CitedWallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd CA 10-Jul-1974
A strip of land between a holiday camp and a garage had been conveyed as an intended roadway. It had not been fenced. A plot of land was sold by the previous farmer to the garage. Later the plaintiffs bought the farm, excluding the roadway, and the . .
CitedIn Re Daintrey, Ex Parte Holt QBD 1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .
CitedSouth Shropshire District Council v Amos CA 1986
Lord Justice Parker said that the use of the words ‘without prejudice’ prima facie meant that a letter was intended to be a part of negotiation. A letter which purported to initiate some sort of negotiation (‘an opening shot’) is not necessarily . .
CitedRains v Buxton 1880
rains_buxtonChD1880
Fry J said: ‘The difference between dispossession and the discontinuance of possession might be expressed in this way: the one is where a person comes in and drives out the others from possession, the other case is where the person in possession . .
CitedRush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
CitedTreloar v Nute CA 1976
The judge in the County Court had rejected a claim to adverse possession by a defendant who together with his father had done a number of acts, some more trivial than others, in and around a disputed gully and adjacent land leading eventually to the . .
CitedPowell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘It will be convenient to begin by . .

Cited by:
ApprovedRhondda Cynon Taff Borough Council v Watkins CA 12-Feb-2003
Land had been purchased compulsorily, but the respondent unlawfully returned to possession in 1966, and now claimed title by adverse possession. The Council executed a vesting deed poll in 1988. The Council asserted that he could not be in adverse . .
CitedMayor and Burgesses of London Borough of Lambeth v George Bigden and Others CA 1-Dec-2000
A block of flats had been occupied over several years by a succession of squatters. The present occupiers appealed an order for possession, and the authority appealed refusal of possession for other flats. The occupiers asserted possessory title. . .
CitedMayor and Burgesses of London Borough of Hounslow v Anne Minchinton CA 19-Mar-1997
The defendant asserted title to a strip of land by adverse possession. The judge had held that the occupation by the claimant had been insufficient to establish possession.
Held: The use of the land as a garden for compost heaps and similar . .
CitedMayor and Burgesses of London Borough of Hounslow v Anne Minchinton CA 19-Mar-1997
The defendant asserted title to a strip of land by adverse possession. The judge had held that the occupation by the claimant had been insufficient to establish possession.
Held: The use of the land as a garden for compost heaps and similar . .
CitedTopplan Estates Ltd v David Townley CA 27-Oct-2004
The registered proprietor of land appealed a finding that the defendant had established adverse possession of their land. The claimant had occupied it as part of his farm. Originally there had been a grazing tenancy. The tenancy was terminated, and . .
CitedChapman and Another v Godinn Properties Ltd and others CA 27-Jun-2005
Dispute over right of way over land subject to claim for possessory title. ‘But each case must turn on its own facts. In a case of this nature, the court must ask itself what it is that would be expected of somebody in possession of land of this . .
CitedAllen v Matthews CA 13-Mar-2007
The defendants appealed an order refusing title by adverse possession to registered land. They denied that the limitation period had been restarted by their solicitor’s letter acknowledging the title.
Held: The letter must be read as a whole. . .
CitedLong v Tower Hamlets London Borough Council ChD 20-Mar-1996
The parties had agreed for a lease, and the tenant entered possession, but no formal lease was executed. The tenant stopped paying rent in 1977 or 1984. He now claimed rectification of the registers to show him as proprietor. The landlord argued . .
CitedOfulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
CitedSze To Chun Keung v Kung Kwok Wai David and Lam Chak Man Estate Limited PC 27-Jun-1997
(Hong Kong) The respondents were registered owners of land occupied by the appellant who claim title by adverse possession after entry in 1955. Subsequently the claim resided with the Crown.
Held: ‘on the facts as pleaded, the land has been . .
CitedWilliams v Hull ChD 19-Nov-2009
The parties had bought a house together, but disputed the shares on which it was held. The appeal was on the basis that a without prejudice letter had been redacte and then wrongly admitted as not in fact without prejudice, an as an unambiguous . .
CitedThe Port of London Authority v Ashmore CA 4-Feb-2010
The Port sought to register ownership of the river bed and tidal foreshore. The defendant’s boat had been moored at a wharf, and he claimed adverse possession. The court was asked whether it was possible to acquire any title by adverse possession to . .
CitedCity of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 05 December 2021; Ref: scu.259373

Mayor and Burgesses of London Borough of Hounslow v Anne Minchinton: CA 19 Mar 1997

The defendant asserted title to a strip of land by adverse possession. The judge had held that the occupation by the claimant had been insufficient to establish possession.
Held: The use of the land as a garden for compost heaps and similar was a sufficient trespass to allow an action, and was therefore sufficient to found a claim for adverse possession. Having acquired a title by adverse possession, the claimant does not lose it by going out of possession, unless the original owner retakes possession. Enclosure is strong evidence of possession.

Lord Justice Butler-Sloss, Lord Justice Millett, Lord Justice Thorpe
[1997] EWCA Civ 1277, (1997) 74 P and CR 221
England and Wales
Citing:
CitedPulleyn v Hall Aggregates (Thames Valley) Ltd 1993
. .
CitedBuckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
CitedLeigh v Jack CA 11-Dec-1879
The plaintiff’s predecessor in title (Mr Leigh) had laid out part of his estate as proposed streets to be known as Grundy Street and Napier Place. He conveyed to the defendant certain land described as being ‘bounded by’ Grundy Street and Napier . .
CitedBuckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
CitedGray v Wykeham Martin and Goode 17-Jan-1977
. .
CitedKynoch Limited v Rowlands 1912
The parties owned adjoining agricultural land divided by a dry ditch. The Plaintiffs built an enclosing wall on their own side of the ditch, cutting themselves off from access to the ditch.
Held: The true boundary between the properties lay . .

Cited by:
CitedTower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 05 December 2021; Ref: scu.141673

Seddon v Smith: 1877

Adverse possession was claimed over land subject to a private grant of a right of way. The defendant had a paper title to a strip of land along Molyneux Lane. The plaintiff sought damages for trespass, claiming for wrongful abstraction of coal from under the strip of land (as well as from under his own adjacent land). The evidence showed that the right of way had been granted over the land to the plaintiff’s predecessors in title and others. The strip of land led from a public road to other land of the plaintiff. It appeared that the plaintiff had not simply used the right of way over the strip; he had also used the remainder of the strip to raise cabbages, potatoes and other produce, ploughing it up and doing all other acts necessary for that purpose, leaving only a narrow lane which could be used as a way. This way was used by the plaintiff, and others, who were said to derive title from the defendant’s predecessor in title. At trial, the plaintiff obtained damages for coal abstracted from under all parts of the strip.
Held: His damages were reduced by one-quarter.
Cockburn CJ said: ‘Originally the soil of this piece of land known as Molyneux Lane remained in the lord of manor subject only to the easement created over it. And with the property in the soil that in the underlying minerals also of course remained in him.’

Cockburn CJ, Baggallay, Brett JJA
[1877] 36 LTR 168
England and Wales
Cited by:
CitedSmith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
CitedSmith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
CitedPowell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘It will be convenient to begin by . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 05 December 2021; Ref: scu.320863

Powell v McFarlane: ChD 1977

A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law: In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to the persons who can establish a title as claiming through the paper owner.
If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (‘animus possidendi’).
The animus possidendi, which is also necessary to constitute possession, was defined by Lindley M.R., in Littledale v. Liverpool College (a case involving an alleged adverse possession) as ‘the intention of excluding the owner as well as other people.’ This concept is to some extent an artificial one, because in the ordinary case the squatter on property such as agricultural land will realise that, at least until he acquires a statutory title by long possession and thus can invoke the processes of the law to exclude the owner with the paper title, he will not for practical purposes be in a position to exclude him. What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.
The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.
Factual possession signifies an appropriate degree of physical control. It must be a single [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot be both in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed . . Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.
The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with a right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.’
Slade J said: ‘In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intention sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him.’ and
‘What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.’ and
‘Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession.’

Slade J
(1977) 38 P and CR 452
Limitation Act 1980
England and Wales
Citing:
CitedSeddon v Smith 1877
Adverse possession was claimed over land subject to a private grant of a right of way. The defendant had a paper title to a strip of land along Molyneux Lane. The plaintiff sought damages for trespass, claiming for wrongful abstraction of coal from . .

Cited by:
Approved ‘Remarkable’J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
CitedMayor and Burgesses of London Borough of Lambeth v George Bigden and Others CA 1-Dec-2000
A block of flats had been occupied over several years by a succession of squatters. The present occupiers appealed an order for possession, and the authority appealed refusal of possession for other flats. The occupiers asserted possessory title. . .
CitedTopplan Estates Ltd v David Townley CA 27-Oct-2004
The registered proprietor of land appealed a finding that the defendant had established adverse possession of their land. The claimant had occupied it as part of his farm. Originally there had been a grazing tenancy. The tenancy was terminated, and . .
CitedLondon Borough of Lambeth v Blackburn CA 14-Jun-2001
The appellant had broken into an empty council owned flat, and subsequently occupied it. After twelve years the authority obtained a court order for possession. The court had held that the appellant had not had a sufficient animus possidendi since . .
CitedTower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
CitedChapman and Another v Godinn Properties Ltd and others CA 27-Jun-2005
Dispute over right of way over land subject to claim for possessory title. ‘But each case must turn on its own facts. In a case of this nature, the court must ask itself what it is that would be expected of somebody in possession of land of this . .
CitedInglewood Investments Company Ltd v Baker CA 8-Nov-2002
The court considered a claim for the adverse possesion of land.
Held: Dyson LJ said: ‘to establish a claim of adverse possession for the requisite period of 12 years it is necessary to establish: (1) actual possession; (2) an intention to . .
CitedAllen v Matthews CA 13-Mar-2007
The defendants appealed an order refusing title by adverse possession to registered land. They denied that the limitation period had been restarted by their solicitor’s letter acknowledging the title.
Held: The letter must be read as a whole. . .
CitedGodmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
CitedClear Channel United Kingdom Ltd, Regina (on the Application of) v First Secretary of State and Another Admn 14-Oct-2004
The claimant sought a declaration that it had a tenancy for its occupation by an advertising station, and that it had protection under the 1954 Act. The defendant council said that only a licence had been granted.
Held: The grants included the . .
CitedBuckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
CitedLodge (T/A JD Lodge) v Wakefield Metropolitan Council CA 21-Mar-1995
The plaintiff had formerly been a tenant of the defendant under an informal tenancy. No rent had been paid since 1974. He claimed to have acquired the land by adverse possession. He gave evidence at trial that if he had been asked to pay rent at any . .
CitedOfulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
CitedSmith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
CitedThe Port of London Authority v Ashmore CA 4-Feb-2010
The Port sought to register ownership of the river bed and tidal foreshore. The defendant’s boat had been moored at a wharf, and he claimed adverse possession. The court was asked whether it was possible to acquire any title by adverse possession to . .
CitedWilson and Another v Grainger ChD 4-Dec-2009
The claimants appealed against a decision of the Adjudicator that they had not acquired a piece of their neighbour’s land by adverse possession, on the basis that their use had been by virtue of an oral licence. The judge had found the occupation to . .
CitedStar Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
CitedBalevents Ltd v Sartori ChD 29-Sep-2011
A strip of land had at one point been left aside for an anticipated road widening which never took place. The defendant had eventually obtained a registered possessory title to it. The claimant, owner of a neighbouring plot, now challenged that . .
CitedZarb and Another v Parry and Another CA 15-Nov-2011
The parties disputed the position of the boundary between their neighbouring properties. The appellant Z had succeeded in establishing that the the boundary was as they decribed on paper, but the respondents had succeeded in their claim for adverse . .
CitedChambers v London Borough of Havering CA 20-Dec-2011
The defendant appealed against an order for him to surrender possession of land he had claimed by adverse possession. The Council was the registered proprietor. The defendant said he had used the land since 1981 for dumping of motor vehicle parts. . .
CitedCity of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 05 December 2021; Ref: scu.182281

Loose v Lynn Shellfish Ltd and Others: CA 19 Jun 2014

The parties disputed the rights to take shellfish from the foreshore. Fishermen now appealed against a finding as to the extent of a private fishery from which they were excluded, in particular as to the rights overfomer sandbanks, at the western, seaward boundary.
Held: The Estate’s rights extended to the lowest astromical tidal mark.

Moore-Bick, Pitchford, Kitchin LJJ
[2014] EWCA Civ 846, [2015] Ch 547, [2015] 2 WLR 643, [2014] WLR(D) 280
Bailii, WLRD
England and Wales
Citing:
CitedMalcolmson v O’Dea HL 1863
A private fishery may be established by prescription.
Willes J said: ‘The soil of ‘navigable tidal rivers,’ like the Shannon, so far as the tide flows and reflows, is prima facie in the Crown, and the right of fishery prima facie in the . .
CitedThe Attorney General for The Provinces British Columbia v The Attorney General for The Dominion of Canada and Another PC 2-Dec-1913
Canada – Lord Haldane set out the principles under which fishery rights might be acquired by prescription.
Fish stocks are a public resource, and there is no property in fish until they are caught. The right to fish in tidal waters or in the . .
At ChDLoose v Lynn Shellfish Ltd and Others ChD 18-Apr-2013
The court was asked whether the defendants had infringed the claimant’s fishery rights in an area of the Wash.
Held: The private fishery extended seawards as far as the mean low-water mark of spring tides and the fishermen had been fishing in . .

Cited by:
At CALynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .

Lists of cited by and citing cases may be incomplete.

Land, Agriculture

Updated: 04 December 2021; Ref: scu.526737

Econometric Ltd and Others v Greater London Authority: UTLC 22 May 2014

COMPENSATION – Compulsory Purchase – Acquisition of 0.67 acre waste transfer station in connection with the London 2012 Olympic Park development – valuation – rental value – treatment of tenant’s payment on entry into lease – Land Compensation Act 1961 section 5, rule (2) – compensation determined at 1,475,000 pounds

[2014] UKUT 219 (LC)
Bailii
England and Wales

Land, Damages

Updated: 04 December 2021; Ref: scu.526453

3 Aylmer Drive, Re: UTLC 29 Apr 2014

UTLC RESTRICTIVE COVENANT – modification – proposed erection of detached house in place of former lodge – whether practical benefits of substantial value or advantage – application granted on ground (aa) – compensation awarded of andpound;75,000 – Law of Property Act 1925 s84(1)(aa) and (c)

[2014] UKUT 153 (LC)
Bailii
England and Wales

Land

Updated: 03 December 2021; Ref: scu.525942

Church Commissioners for England, R v Hampshire County Council and Another: CA 14 May 2014

Effect of correction of application to register a Town or Village Green on application date and time that may be given for such correction

Arden, Richards, Vos LJJ
[2014] EWCA Civ 634, [2014] WLR(D) 207, [2014] BLGR 706, [2014] 1 WLR 4555
Bailii, WLRD
Commons Act 2006, Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 5(4)
England and Wales

Land

Updated: 03 December 2021; Ref: scu.525470

Andrews, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs: Admn 8 May 2014

The court was asked whether the then Secretary of State, by her Inspector, was right to dismiss an appeal against the decision of Wiltshire County Council refusing an application made by the Claimant to the Council for it to modify the Definitive Map for its area to include upon it a public bridleway that does not currently appear on that map.

Foskett J
[2014] EWHC 1435 (Admin), [2014] PTSR 1253, [2014] WLR(D) 195
Bailii, WLRD
Inclosure Consolidation Act 1801
England and Wales
Cited by:
Appeal fromAndrews, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs CA 1-Jul-2015
The claimant appealed against rejection of his request for judicial review of the decision by the respondent not to amend the definitive map to show two sections of public bridleway across an arable field.
Lord Dyson MR considered the purposive . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 03 December 2021; Ref: scu.525070

Brunner v Greenslade: ChD 1971

Megarry J discussed the ratio decidendi of and approving dicta in Lawrence.
‘The substance of the views of Simonds J was that where there is a head scheme, any sub-purchasers are bound inter se by the covenants of that head scheme even though they have entered into no covenants with the sub-vendor or with each other. What binds the sub-purchasers inter se is not any covenant of their own making (for there is none) but an equity independent of any contractual obligation entered into by them, and arising from the circumstances of the existence of the head scheme, the process of division into sub-lots and the disposal of those lots. If on the disposal the common intention was that the local law created by the head scheme should apply within the sub-area, then apply it would. It would be remarkable if the restrictions of the head scheme were to be reciprocally enforceable between the owners of a sub-lot and of a plot elsewhere on the estate, however distant, and yet be unenforceable as between neighbouring owners of sub-lots. I have ventured a somewhat free summary of the conclusions reached by Simonds J., but I think that it contains the kernel of his reasoning.
…Perhaps I may go back to first principles and try to summarise the matter in my own way. The most straightforward case is where A owns the entire estate and, having laid it out, himself sells individual lots to individual purchasers who enter into the covenants of the scheme. As soon as he sells a lot to the first purchaser, B, the scheme crystallises. Not only is B bound in respect of his lot to A, for the benefit of the remainder of the estate, but also A is bound, in respect of the remainder of the estate, to B, for the benefit of B’s plot. It may be noted that while B is bound by the express covenants that he entered into, A may well have entered into no express covenants with B; and yet the concept of a scheme of development requires that A shall be treated as having impliedly bound himself by the provisions of the scheme. If A then sells another plot to C, C is taking part of the land that has already been subjected to the scheme in favour of B, and the covenants that he enters into are treated as being made for the benefit not only of A’s remaining land but also of B’s plot. If A continues to sell off one lot to each purchaser, and all the purchasers are different, in this way the whole concept of the enforceability of the covenants under a scheme of development, as between all within the area of the scheme, is readily explicable in terms of covenant, express or implied.’

Megarry J
[1971] Ch 993
England and Wales
Citing:
CitedLawrence v South Country Freeholds Ltd ChD 1939
Simonds J held that on the facts before him no general scheme of development existed. It was accordingly not necessary to determine what rights as between the sub-purchasers there might have been if the main scheme had been held to exist. However, . .

Cited by:
CitedSmall v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Dicta approvedYoungsam, Regina (on The Application of) v The Parole Board Admn 7-Apr-2017
The claimant challenged being recalled to prison from licence after being found in an area from which he was excluded as a condition of his parole. . .
CitedPickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Updated: 30 November 2021; Ref: scu.242394

Mortgages 1 Ltd v Shaida Ahmed Chaudhary: ScSf 14 Nov 2013

‘The pursuers seek warrant in terms of section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970 in respect of the property at [address] and an order for removing in terms of section 5 of the Heritable Securities (Scotland) Act 1894
Held: The Sheriff Principal, having heard parties, allows the appeal and recalls the sheriff’s interlocutor of 6 June 2013 complained of; remits the cause to the sheriff’s By Order Roll to proceed as accords; finds the defender and appellant liable to the pursuers and respondents in the expenses of the appeal; allows an account to be given and remits same when lodged to the auditor of court to tax and to report.’

[2013] ScotSC 109
Bailii
Heritable Securities (Scotland) Act 1894, Conveyancing and Feudal Reform (Scotland) Act 1970 24
Scotland

Land

Updated: 28 November 2021; Ref: scu.519720

Tomlinson v Congleton Borough Council and others: HL 31 Jul 2003

The claimant dived into a lake, severely injuring himself. The council appealed liability, arguing that it owed him no duty of care under the Act since he was a trespasser. It had placed warning signs to deter swimmers.
Held: The council’s appeal succeeded. The risk of injury arose, not from any danger due to the state of the defendants’ premises, or to things done or omitted to be done on those premises, but from the claimant’s own misjudgment in attempting to dive in water that was too shallow. This was not a risk that gave rise to any duty on the defendants’ part and that, in any event, it had not been a risk in respect of which the defendants might reasonably have been expected to afford the claimant protection. The dangers were signposted, and therefore the 1957 Act did not apply. Under the 1984 Act, the question was whether there was a difference between someone whose entry to the property was as a trespasser, and someone who having entered property lawfully, became a trespasser after by acting outside the terms of the licence. There should not be a difference, and nor should the authority be required to take greater steps than they had to prevent others taking risks which were obvious.
Lord Hoffmann said why the voluntary assumption of risk was a complete answer to his claim: ‘I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hand-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalistic view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.
My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with an appropriate moderation my disagreement with the proposition of Sedley LJ that it is ‘only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability’. A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Commissioner of the Police of the Metropolis [2000] 1 AC 360.’

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote
[2003] UKHL 47, Times 01-Aug-2003, Gazette 11-Sep-2003, [2003] 3 WLR 705, [2004] 1 AC 46, [2003] NPC 102, [2003] 32 EGCS 68, [2003] 3 All ER 1122, [2004] PIQR P8
Bailii, House of Lords
Occupier’s Liability Act 1984 1, Occupier’s Liability Act 1957 2
England and Wales
Citing:
Appeal fromTomlinson v Congleton Borough Council and Another CA 14-Mar-2002
The claimant was injured swimming in a lake in a park. Warning signs clearly indicated that the lake was dangerous for swimming.
Held: The authority were liable. They knew that the lake was attractive to swimmers, and that the signs were . .
CitedHillen and Pettigrew v ICI (Alkali) Ltd HL 1936
Stevedores who were lawfully on a barge for the purpose of discharging it, nevertheless became trespassers when they went onto an inadequately supported hatch cover in order to unload some of the cargo. They knew that they ought not to use the . .
CitedDonoghue v Folkestone Properties Limited CA 27-Feb-2003
The claimant had decided to go for a midnight swim, but was injured diving and hitting a submerged bed. The landowner appealed a finding that it was 25% liable. The claimant asserted that the defendant knew that swimmers were common.
Held: The . .
CitedBritish Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
CitedStaples v West Dorset District Council CA 5-Apr-1995
There was no duty of care on a landowner to warn of obvious danger on Lyme Regis Cobb. The quay clearly dangerous for anyone to see. . .
CitedOverseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
CitedJolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
CitedDarby v National Trust CA 29-Jan-2001
The claimant’s husband drowned swimming in a pond on the National Trust estate at Hardwick Hall. Miss Rebecca Kirkwood, the Water and Leisure Safety Consultant to the Royal Society for the Prevention of Accidents, gave uncontradicted evidence, which . .
CitedBolton v Stone HL 10-May-1951
The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence.
Held: When looking at the duty of care the court should ask whether the risk was not so remote . .
CitedCommissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 11-Feb-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
CitedStevenson v Glasgow Corporation 1908
Lord M’Laren said: ‘in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town . .
CitedHastie v Magistrates of Edinburgh 1907
There are certain risks against which the law, in accordance with the dictates of common sense, does not give protection – such risks are ‘just one of the results of the world as we find it’. . .
CitedGlasgow Corporation v Taylor HL 18-Nov-1921
A father brought an action for damages for the death of his son who had eaten poisonous berries growing in one of the defenders’ public parks. The plants were easily accessible from a children’s play area and it was said that the defender had a duty . .
CitedCotton v Derbyshire District Council CA 20-Jun-1994
No notice warning of danger was necessary on a public right of way for an obviously dangerous cliff. The Court upheld the decision of the trial judge dismissing the plaintiff’s claim for damages for serious injuries sustained from falling off a . .
CitedKarl Andrew Whyte v Redland Aggregates Limited CA 27-Nov-1997
The appellant dived into a disused gravel pit and struck his head on an obstruction on the floor of the pit. The Court dismissed his appeal that he was not entitled to damages.
Held: ‘In my judgment, the occupier of land containing or bordered . .
CitedBartrum v Hepworth Minerals and Chemicals Limited QBD 1984
The claimant dived from a ledge on a cliff. In order to avoid shallow water he knew that he had to dive out into the pool but he failed to do so and fractured his neck.
Held: The court dismissed his claim for damages saying ‘So far as the Act . .

Cited by:
CitedSimonds v Isle of Wight Council QBD 23-Sep-2003
The claimant sought damages, having been injured at a school sports day. The school had carried out a risk asessment and acknowledged a risk of injury.
Held: Not every risk identified could or should be controlled. The injury occurred whilst . .
CitedGorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
CitedSandhar, Murray v Department of Transport, Environment and the Regions QBD 19-Jan-2004
The claimant asserted a common law duty on the respondent to maintain a roadway free of frost.
Held: No such common law duty existed. Where parliament has conferred a discretionary power, ‘ . . the minimum preconditions for basing a duty of . .
CitedJane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
CitedMcTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
CitedHampstead Heath Winter Swimming Club and Another v Corporation of London and Another Admn 26-Apr-2005
Swimmers sought to be able to swim unsupervised in an open pond. The authority which owned the pond on Hampstead Heath wished to refuse permission fearing liability for any injury.
Held: It has always been a principle of the interpretation of . .
CitedKeown v Coventry Healthcare NHS Trust CA 2-Feb-2006
The claimant a young boy fell from a fire escape on the defendant’s building. He suffered brain damage and in later life was convicted of sexual offences.
Held: His claim failed: ‘there was no suggestion that the fire escape was fragile or had . .
CitedCorr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
CitedJL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
CitedGeary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
CitedHelena Partnerships Ltd v HM Revenue and Customs CA 9-May-2012
The company had undertaken substantial building works and sought associated tax relief. The court was asked whether, following a change in the company’s memorandum and articles of association, the company, a registered social landlord, remained a . .
CitedHarvey v Plymouth City Council CA 29-Jul-2010
The Council appealed against a finding of liability under the 1957 Act after the claimant was injured after jumping over a fence to flee hving to pay a taxi, and falling down a steep slope onto a car park. The land had been licenced to the . .
CitedCockbill v Riley QBD 22-Mar-2013
cockbill_rileyQBD2013
The claimant sufferd catastrophic injury diving into a paddling pool at a party held by the defendant for his daughter to celebrate completing her GCSEs.
Held: The claim failed. ‘It was reasonably foreseeable that someone would lose his . .
CitedUren v Corporate Leisure (UK) Ltd CA 2-Feb-2011
The claimant suffered injury at a competitive fun day organised by his employers, the RAF at a facility of the respondents. He struck his head diving into a very shallow inflatable pool. He appealed against dismissal of his claim.
Held: The . .
CitedOvu v London Underground Ltd (Duty of Care) QBD 13-Oct-2021
Safety of Stairs within Undergrounds Care of duty
The Claimant sued the London Underground company because their relative Mr Ovu died after falling down stairs on a fire escape. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Leading Case

Updated: 27 November 2021; Ref: scu.185424

Spearman v Royal United Bath Hospitals NHS Foundation Trust: QBD 4 Dec 2017

The Claimant suffered a hypoglycaemic attack (being Type 1 diabetic) and was taken by ambulance to the Hospital, arriving at 22.00 hours. Within 15 minutes, he had left the emergency department of the hospital, climbed five flights of stairs to a flat roof, climbed over a protective barrier and either fallen or jumped into a courtyard below where he suffered serious injuries.
The issue for decision is whether this accident occurred as a result of the breach of duty of the defendant whether owed to the Claimant under the Occupiers Liability Act 1957 and/or the Occupiers Liability Act 1984 or at Common Law, or whether the Claimant was the author of his own misfortune.

Martin Spencer J
[2017] EWHC 3027 (QB)
Bailii
Occupiers Liability Act 1957, Occupiers Liability Act 1984
England and Wales
Cited by:
CitedOvu v London Underground Ltd (Duty of Care) QBD 13-Oct-2021
Safety of Stairs within Undergrounds Care of duty
The Claimant sued the London Underground company because their relative Mr Ovu died after falling down stairs on a fire escape. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good . .

Lists of cited by and citing cases may be incomplete.

Land, Personal Injury

Updated: 27 November 2021; Ref: scu.601123

Trail Riders Fellowship and Others v Powys County Council: Admn 17 Oct 2013

The applicants challenged decisions of the Council to make a traffic regulation order over each of two byways in the county. The Council was both the traffic and highway authority for the county. These orders had the effect of prohibiting the use of the byways by motor vehicles, motor cycles and horse drawn vehicles.

Cranston J
[2013] EWHC 3144 (Admin)
Bailii

Land, Local Government

Updated: 21 November 2021; Ref: scu.516545

Margate Town Centre Regeneration Company Ltd and Others v Secretary of State for Communities and Local Government and Others: CA 8 Oct 2013

Appeal against dismissal of claim for quashing of compulsory purchase order.

Goldring, Elias LJJ, Sir David Keene
[2013] EWCA Civ 1178
Bailii
Acquisition of Land Act 1981
England and Wales
Citing:
Appeal fromMargate Town Centre Regeneration Company Ltd and Others v Secretary of State for Communities and Local Government and Another Admn 2-May-2013
Challenges to compulsory purchase orders.
Held: The Orders stand . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 21 November 2021; Ref: scu.516320

Hall v Beckenham Corporation: 1949

A claim was made in nuisance against the local authority, the owner of a public park, in which members of the public flew noisy model aircraft.
Held: The local authority were not liable as the occupiers of the park for an alleged nuisance that was being committed in the park. Finnemore J discussed the purpose of a public walks or pleasure grounds under the 1875 Act, saying: ‘So far as a local authority are concerned, if land is bought under s. 164 of the Act of 1875 for that purpose it is dedicated to the use of the public for the purpose of a park.’

Finnemore J rejected the plaintiff’s submission that even if it was not the occupier, the authority was liable because it had the management and control of the park: ‘So long as a member of the public behaves himself in the ordinary way, committing no criminal offence and observing the by-laws, the corporation cannot stop his doing what he likes in this recreation ground . . I think that the corporation are the trustees and guardians of the park, and that they are bound to admit to it any citizen who wishes to enter it within the times when it is open. I do not think that they can interfere with any person in the park unless he breaks the general law or one of their by-laws. They cannot put themselves in the position of judges of whether a person may be causing a nuisance to someone outside the park. Their proper attitude to such a complaint is to say that the complainer must take action against the person who is said to be committing the nuisance.’

Finnemore J
[1949 ] 1 KB 716
Public Health Act 1875
England and Wales
Cited by:
CitedRegina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
CitedBarkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
CitedBarkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Land, Local Government

Updated: 17 November 2021; Ref: scu.187797

Maksymenko and Gerasymenko v Ukraine (LS): ECHR 16 May 2013

ECHR Article 1 para. 1 of Protocol No. 1
Deprivation of property
Public interest
Invalidation ten years after the event of privatisation of hostel and all subsequent transfers of property without compensation: violation
Facts – In 2004 the applicants purchased a hostel that had been privatised in 1995 from S., a private company in liquidation. However, in 2006 the domestic courts invalidated the original 1995 decision to privatise the hostel and all subsequent transfers of property and ruled that ownership of the hostel was to be transferred to the town council. The applicants were awarded compensation to be paid by S, but this was never paid. In 2007 the regional court of appeal found in a separate case that the privatisation of another hostel in 1995 had been lawful, since hostels did not form part of State housing stock. Subsequently, the town council sold to their occupants twelve of the fourteen apartments at the hostel that had been purchased by the applicants.
Law – Article 1 of Protocol No. 1: There had been a deprivation of property which amounted to interference with the applicants’ right to the peaceful enjoyment of their possessions. The decision of 2006 invalidating the 1995 decision to privatise was based on a provision of national law which appeared unclear as there was no single approach at national-court level on whether ‘hostels’ were caught by the prohibition on privatising ‘housing stock’. The State authorities had, with a view to protecting the housing rights of others, corrected what they considered to be an erroneous interpretation of the law in force more than ten years earlier. In this context, the principle of good governance had particular importance and in addition to imposing an obligation on the authorities to act promptly to correct a mistake, could also require the payment of adequate compensation or another type of appropriate reparation. Before taking the decision to sell the hostel to the applicants, the board of creditors had informed the State authorities of possible complications but in January 2004 the town mayor had explicitly refused to take over ownership of the hostels. A year later the prosecutor had instituted court proceedings seeking to invalidate the contract of sale of the hostel on the grounds that the hostel should not have been privatised in the first place. However, a year after the decision satisfying the prosecutor’s claim was upheld by a higher court, 85% of the hostel apartments had been sold on to their occupants. This confirmed that the State did not intend to keep the hostel for use as social housing. Lastly, the applicants had not received any compensation for the property. Although the domestic courts had ordered S. to pay compensation, they must have been aware by then that the company was already insolvent. In such circumstances, the Court was not convinced that the applicants were required to institute further proceedings to claim damages from the State and so dismissed the Government’s objection in that regard. Accordingly, even assuming the interference in question was based on clear and foreseeable provisions of the national law and was aimed at protecting the housing rights of others, the fact that the applicants, who were bona fide purchasers, were unable to obtain compensation for their losses, which had been inflicted on them by the inconsistent and erroneous decisions of the State authorities, constituted a disproportionate burden.
Conclusion: violation (unanimously).
Article 41: EUR 6,127 in respect of pecuniary damage, EUR 3,000 in respect of non-pecuniary damage.

49317/07 – Legal Summary, [2013] ECHR 543
Bailii
European Convention on Human Rights
Human Rights
Citing:
Full JudgebtMaksymenko and Gerasymenko v Ukraine ECHR 16-May-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Land

Updated: 14 November 2021; Ref: scu.510971

JMMB Merchant Bank Ltd v The Real Estate Board: PC 20 Apr 2015

(Jamaica) The Board was asked ‘ two issues, namely (i) whether a charge in favour of the Real Estate Board (‘the REB’) is valid only if it has been registered under section 93 of the Companies Act 2004; and (ii) to what extent (if at all) does a charge in favour of a regulated financial institution rank pari passu with the REB’s charge.’

Lady Hale
Lord Sumption, Lord Carnwath, Lord Hughes, Lord Hodge
[2015] UKPC 16
Bailii
England and Wales

Land, Company

Updated: 12 November 2021; Ref: scu.545684

Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd): CA 4 Mar 1995

The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to mislead the plaintiff into making the relevant mistake, the plaintiff had in fact made it, and this was sufficiently unconscionable conduct on the part of the defendant to render it liable to rectification. The deliberate attempt to hide the other’s mistake made the contract unenforceable. An offer and acceptance of a land contract may not be by letter. Rectification may in certain circumstances be ordered, where there has been no common mistake, but one party has proceeded on a base which the other knew to be mistaken. Where A intends B to be mistaken as to the construction of a contract and diverts B’s attention from discovering the mistake by making false and misleading statements and B makes the mistake which A intends, then suspicion and not actual knowledge of the mistake is enough for rectification to be granted.
Stuart-Smith LJ said: ‘[W]here a false representation is made for the purpose of inducing the other party to adopt a certain course of conduct and the representation is such as to influence a person behaving reasonably to adopt that course of conduct, the court should infer, in the absence of evidence to the contrary, that the representation did have that effect.’ and
‘In the case of unilateral mistake, that is to say where only one party is mistaken as to the meaning of the contract, rectification is not ordinarily appropriate. This follows from the ordinary rule that it is the objective intention of the parties which determines the construction of the contract and not the subjective intention of one of them. Also, it would generally be inequitable to compel the other party to execute a contract, which he had no intention of making, simply to accord with the mistaken interpretation of the other party: see Olympia Sauna Shipping Co SA v Shinwa Kaiun Kaisha Ltd [1985] 2 Lloyds Rep. 364, 371 per Bingham J. But the court will intervene if there are ‘additional circumstances that render unconscionable reliance on the document by the party who has intended that it should have effect according to its terms:’ Spry, Equitable Remedies, 4th ed. (1990), p.599. The debate in this case turns on what amounts to unconscionable conduct.’

Stuart-Smith LJ, Evans LJ, Farquharson LJ
Times 04-Mar-1995, Independent 15-Mar-1995, [1995] 2 All ER 929, [1995] Ch 259, [1995] 26 EG 129
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited by:
CitedWell Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
CitedGeorge Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedColes and Others v William Hill Organisation Ltd ChD 18-Mar-1998
When agreeing an extension of an existing lease, the new lease by mistake included a break clause which had been intended by neither party. The tenant’s solicitors noticed the error in their client’s favour but did not mention it. The landlord only . .
CitedNorth Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
CitedDaventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.79287

Western Bank Ltd v Schindler: CA 1977

The mortgagee sought possession in circumstances in which the mortgagor had allowed a life policy, taken as collateral security, to lapse, but where there had been no default under the mortgage itself. The question arose whether the court could exercise the powers conferred by section 36(2) of the Act in a case where no sums being due under the mortgage and there being no default.
Held: The Court found it possible to construe section 36 of the Act of 1970 in such a way as to avoid what the court perceived would be an obvious lacuna if the words were given a literal meaning. The section in its terms was enacted in order to deal with problem which had arisen following Caunt; and which had been the subject of examination and recommendation by the Payne Committee. However an insertion by a judge must not be too big, or too much at variance with the language used by the legislature.
Lord Justice Buckley: ‘If sub-s (1) [of section 36] is read literally, the conditional clause introduced by the words ‘if it appears to the court’ (which I shall refer to as ‘the conditional clause’) appears to restrict the operation of the section to cases in which some sum is due or some default has taken place and remains unremedied when the application comes before the court. This, however, seems to me to lead to a ridiculous result.’ The words of the section being unfair and irrational, the court ‘must therefore investigate whether the section is capable of some other construction’ and ‘Section 36 is an enabling section which empowers the court to inhibit the mortgagee’s right to take possession. It confers a discretionary power on the court to achieve this result. It is, in my judgment, impossible to spell out of it a positive abrogation of an important property right, and, moreover, an abrogation of it only in particular circumstances.’
Lord Justice Scarman saw three ways forward: ‘The first is to treat the section as having a ‘casus omissus’ which only Parliament can fill. The second . . . is to treat the section as excluding the common law right to possession from mortgages of dwelling houses. The third is to treat the section as giving the court a power to delay making an order in all cases where, upon whatever ground, a mortgagee is seeking possession of a mortgaged dwelling house.’ and ‘Judicial legislation is not an option open to an English judge. Our courts are not required, as are, for instance, the Swiss courts (see the Swiss Civil Code, arts 1 and 2), to declare and insert into legislation rules which the judge would have put there had he been the legislator. But our courts do have the duty of giving effect to the intention of Parliament, if it be possible, even though the process require a strained construction of the language used or the insertion of some words in order to do so; see Luke v Inland Revenue Commissioners [1963] AC 557, per Lord Reid at p.577. The line between judicial legislation, which our law does not permit, and judicial interpretation in a way best designed to give effect to the intention of Parliament is not an easy one to draw. Suffice it to say that before our courts can imply words into an Act the statutory intention must be plain and the insertion not too big, or too much at variance with the language in fact used by the legislature. The courts will strain against having to take the first of the three courses I mentioned; that is to say, leaving unfulfilled the ‘casus omissus’. In the case of this section, is there an acceptable reading which would enable us to give effect to Parliament’s intention within the principle which I think governs the problem?
It would be going too far, in my judgment, to adopt the second course. It would, indeed, be judicial legislation to read a section conferring discretionary powers on the court as abrogating a common law right. I am not prepared to go that far in an attempt to make sense. If one had to go that far, then it would be for the legislature, not the courts, to take the step.’
Lord Justice Goff: Section 36 could not be held, by a side wind, to have abrogated the mortgagee’s proprietary right to take possession: ‘This would not, I think, be applying the principle of liberal construction to avoid absurdity stated in Luke v Inland Revenue Commissioners [1963] AC 577, but disregarding the statute or overriding it, which as Ungoed-Thomas J. pointed out in In re Maryon-Wilson’s Will Trusts [1968] Ch 268, 282, and in my judgment rightly pointed out, is what the court is not allowed to do.’ There were only two courses open to the court: to construe the section as conferring a discretion in all cases; or to construe the section literally and face whatever anomalies or absurdities that produced. He preferred the latter; on the ground that he could not see how any sensible effect could be given to the powers in subsection (2) if there was nothing to be done by the mortgagor which an adjournment, stay, suspension or postponement would enable to be done within a time which the court was required to decide was a reasonable time.

Lord Justice Scarman, Lord Justice Buckley, Lord Justice Goff
[1977] Ch 1
Administration of Justice Act 1970 36
England and Wales
Cited by:
CitedRopaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
CitedInco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .

Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.230370

Southwark London Borough Council v Williams: CA 1971

No Defence of Homelessness to Squatters

The defendants, in dire need of housing accommodation entered empty houses owned by the plaintiff local authority as squatters. The court considered the defence of necessity.
Held: The proper use of abandoned council properties is best determined by political decision making processes. Squatters, in urgent need of accommodation, could not claim a defence of necessity because the peril they found themselves in was ‘an obstinate and longstanding state of affairs’, rather than an immediate or emergent threat. The court denied that if a starving beggar takes the law into his own hands and steals food he is not guilty of theft.
Lord Denning MR said: ‘If homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine they were in need or would invent a need, so as to gain entry. The plea would be an excuse for all sorts of wrongdoing. So the courts must refuse to admit the plea of necessity to the hungry and the homeless: and trust that their distress will be relieved by the charitable and good.’
Edmund Davies LJ said: ‘But when and how far is the plea of necessity available to one who is prima facie guilty of tort? Well, one thing emerges with clarity from the decisions and that is that the law regards with the deepest suspicion any remedies of self-help and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear -necessity can very easily become simply a mask for anarchy.’

Lord Denning MR, Edmund-Davies LJ
[1971] 1Ch 734, [1971] 2 All ER 175, [1971] 2 WLR 467
England and Wales
Cited by:
CitedMonsanto Plc v Tilly and Others CA 30-Nov-1999
A group carried out direct action in protesting against GM crops by pulling up the plants. The group’s media liaison officer, while not actually pulling up plants himself, ‘reconnoitred the site the day before. He met the press at a prearranged . .
CitedIn Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
CitedWhite v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
CitedRegina v Burns, Paul CACD 27-Apr-2010
The defendant appealed against his conviction for assault. He had picked up a sex worker, driven away, but then changed his mind, and forcibly removed her from the car when she delayed. He now argued that he had the same right at common law to . .
CitedCity of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Crime, Housing, Land

Leading Case

Updated: 11 November 2021; Ref: scu.183171

Tinsley v Milligan: CA 1992

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.’

Lord Justice Lloyd, Lord Justice Nicholls
[1992] Ch 310, (1991) 63 P and CR 152, [1992] 2 WLR 508, [1992] 2 All ER 391
Law of Property Act 1925 193(1)
England and Wales
Citing:
CitedEuro-Diam CA 1900
The court must bear in mind when reaching a decision, the ‘public conscience’ element, weighing, or balancing, the adverse consequences of granting relief against the adverse consequences of refusing relief. The ultimate decision calls for a value . .
CitedNeaverson v Peterborough Rural District Council ChD 1902
The 1812 Act provided for the draining, enclosing and improving of a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of ‘sound and . .
CitedGeorge Legge and Son Ltd v Wenlock Corporation HL 1938
The question was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. The claimant asserted that a right by way of an easement could be acquired despite the . .
CitedCargill v Gotts CA 1981
The Act prohibited abstraction of water from a river without a licence from the Water Authority. The defendant had no such licence, but asserted that having extracted water over many years from the mill pond, he had acquired the right to do so: ‘The . .
CitedE R Ives Investments Ltd v High CA 14-Dec-1966
One exception to the requirement that an easement must be granted by a deed is that if permission to enjoy a right, capable of constituting an easement, is given by the landowner in terms likely to lead, and that do lead, the beneficiary of the . .
CitedE R Ives Investments Ltd v High CA 14-Dec-1966
One exception to the requirement that an easement must be granted by a deed is that if permission to enjoy a right, capable of constituting an easement, is given by the landowner in terms likely to lead, and that do lead, the beneficiary of the . .
CitedGlamorgan County Council v Carter QBD 1962
A caravan owner appealed against an enforcement notice on the basis that no planning permission was required because the parking of caravans was the purpose for which the land had been last used.
Held: Factually that was correct. Prima facie . .

Cited by:
Appeal fromTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
AppliedSilverwood (Executor of the Estate of Daisy Silverwood) v Silverwood; and Whiteley CA 15-Apr-1997
The deceased had withdrawn a capital sum from her bank, and given it to her grandchildren before claiming income support. She had not declared the sums given away. The judge (Harry Walker) had held that there had been no gift, and that a resulting . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – other

Leading Case

Updated: 11 November 2021; Ref: scu.193595

Dalton v Henry Angus and Co: HL 14 Jun 1881

The court explained the doctrine of lost modern grant. Where there has been more than 20 years’ uninterrupted enjoyment of an easement, and that enjoyment has the necessary qualities to fulfil the requirements of prescription, then unless, for some reason the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made. ‘. . the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest.’
Lord Blackburn, delivering the principal speech on this point, regarded the interposition of an independent contractor as irrelevant, because of the nature of the duty: ‘Ever since Quarman v Burnett (1840) 6 M and W 499, [1840] EngR 182, it has been considered settled law that one employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it: Hole v Sittingbourne Railway Co (1861) 6 H and N 488, [1861] EngR 170; Pickard v Smith 10 CB (NS) 470, [1861] EngR 71, Tarry v Ashton (1876) 1 QBD 314.’
Fry J (asked to give his opinion to the house said: ‘But leaving such technical questions aside, I prefer to observe that, in my opinion, the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest.’

Lord Selborne LC, Lord Blackburn, Fry J (advising)
(1881) 6 App Cas 740, [1881] UKHL 1
Bailii
England and Wales
Citing:
At first instanceDalton v Henry Angus and Co 1877
Fry J said: ‘ . .I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part . .
Appeal fromDalton v Henry Angus and Co CA 1878
. .

Cited by:
CitedRegina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
ExplainedTehidy Minerals Ltd v Norman CA 1971
The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the . .
CitedBakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
CitedHunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
CitedLawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
CitedWoodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
CitedWinterburn and Another v Bennett and Another CA 25-May-2016
The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 11 November 2021; Ref: scu.187796

Heath v Kelly and Another: ChD 24 Jul 2009

The defendant and the deceased had purchased a house as joint tenants in equity. The claimant sought to enforce an agreement for the sale of the defendant’s half share. Payment having been made. The defendant argued that the agreement was uncertain and unenforceable.
Held: The agreement appeared to have been made under a misapprehension as to the legal position. The mistake appeared to have been created by the party seeking to rely on it, and equity could refuse specific performance of the contract. The claimant had also delayed her action. Specific performance was refused. Declaration as to interests accordingly.

Purle QC J
[2009] EWHC 1908 (Ch), [2009] Fam Law 1044, [2010] 1 FLR 610, [2009] 2 P and CR DG21
Bailii
England and Wales
Citing:
CitedGreat Peace Shipping Ltd v Tsavliris (International) Ltd CA 14-Oct-2002
The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: . .
CitedMilward v Earl Thanet CA 1801
Lord Alvanley MR said: ‘a party cannot call upon a Court of Equity for specific performance, unless he has shewn himself ready, desirous, prompt, and eager.’ . .
CitedP and O Nedlloyd Bv v Arab Metals Co and others CA 13-Dec-2006
An order for specific performance had been refused in a disputed contract for carriage. The claimant argued that normal limitation periods should not be applied by analogy.
Held: Because there was no corresponding legal remedy the remedy in . .
CitedWilliams v Greatrex CA 1956
A purchaser agreed to buy land to be laid out in building plots. On payment of a deposit and giving notice, the purchaser was to be entitled to enter onto a particular plot in order to build on it. The arrangement met with difficulties, with the . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Updated: 11 November 2021; Ref: scu.361469

Moore v Rawson: KBD 1824

Loss of Right of Light – Deemed Abandoned

The defendant denied infringement of the plaintiff’s right of light. An old building had a window in one side. That building was replaced by one with a blank wall. The defendant then erected his own building alongside the new blank wall.
Held: The right to light had been lost. The temporary disuse was a complete abandonment of the right. ‘Every man, prima facie, is entitled to enjoy all the light and air which come to his own land. The enjoyment of lights for twenty years, in a particuler mode, is presumptive evidence of a grant by the owner of the adjoining land of the privilege so to enjoy the light. Here, the former owners of the plaintiff’s premises enjoyed the light for that period, they must therefore be taken to have had a grant from some person capable of making it; and that being so, the right which was once vested in the owners of the plaintiff’s premises, could not be divested out of them, except by a release of the right so granted to them, or by a non user of the right for such a length of time as would warrant the presumption of a release. ‘

[1824] EWHC KB J28, [1824] 107 ER 756
Bailii
England and Wales

Land

Leading Case

Updated: 11 November 2021; Ref: scu.264575

North Eastern Properties Ltd v Coleman and Another: CA 19 Mar 2010

The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts had omitted an agreement for the payment of a 2% finders fee on exchange. The appellants intended to sell on the flats to buyers as they found them, by the assignment of the contracts, and the terms had been omitted at the appellants’ request to avoid its benefit being assigned to the sub-purchasers.
Held: The buyers’ appeals failed. It had not been the intention of the 1989 Act to make it easier for purchasers to escape from contractual liability, though ‘because of the rigorous discipline which it imposes upon parties to land contracts, it does indeed enable persons who have genuinely contracted to do just that.’ It was legitimate to interpret the 1989 Act so as to avoid the creation of an injustice, and ‘there is nothing contrary to common sense in construing such a clause as having the alternative meaning that the parties have agreed that the terms of some other part of the composite transaction are not to be conditions for the performance of the land contract.’
In this case the notices to complete gave an unreasonably short time period for completion of the construction works, and the purchaser could not rely on them.
Briggs J set out the principles: ‘A party seeking to avoid a land contract under section 2 must identify a term which the parties have expressly agreed, which is not to be found in the single, or exchanged, signed document. It is not sufficient merely to show that the land contract formed part of a larger transaction which was subject to other expressly agreed terms which are absent from the land contract. The expressly agreed term must, if it is required by section 2 to be included in the single document, be a term of the sale of the land, rather than a term of some simultaneous contract (whether for the sale of a chattel or the provision of a service) which happens to take place at the same time as the land contract, and to form part of one commercial transaction. Section 2(1) does not prohibit parties from structuring a transaction, for example, for the sale of the whole of a company’s assets, in such a way that the land sale is dealt with in a different document from the sale of stock, work in progress or goodwill, unless the sale of the land is conditional upon the sale of the other assets. For an illustration of this point, see Grossman v. Hooper [2001] 2 EGLR 82, paras 19-22, per Chadwick LJ.
. . In my judgment, the apparent disharmony constituted by the dicta on this point may be reconciled as follows: (i) Nothing in section 2 of the 1989 Act is designed to prevent parties to a composite transaction which includes a land contract from structuring their bargain so that the land contract is genuinely separated from the rest of the transaction in the sense that its performance is not made conditional upon the performance of some other expressly agreed part of the bargain. Thus, in Chadwick LJ’s example in Grossman v. Hooper [2001] 2 EGLR 82, parties may agree to the sale and purchase both of a house and of its curtains and carpets in a single composite transaction. None the less it is open to them to agree either (a) that completion of the purchase of the house is dependent upon the sale of the carpets and curtains, or (b) that it is not. They are free to separate the terms of a transaction of type (b) into two separate documents (one for the house and the other for the carpets and curtains) without falling foul of section 2. They may also agree to structure a transaction which includes the sale of two or more parcels of land by way of separate contracts for each, so that none of the land contracts is conditional upon the performance of any of the others. (ii) By contrast, the parties to a composite transaction are not free to separate into a separate document expressly agreed terms, for example as to the sale of chattels or the provision of services, if upon the true construction of the whole of the agreement, performance of the land sale is conditional upon the chattel sale or service provision. That would, albeit for reasons which seem to me to frustrate rather than serve the purposes for which the 1989 Act was passed, fall foul of section 2(1), however purposively construed. So would a series of separate contracts for the sale of separate parcels of land, if each was conditional upon the performance of the other. (iii) Since the splitting into separate contracts of parts of a composite transaction is inherently likely to give rise to uncertainties as to whether performance of the one is conditional upon performance of the other, the parties are free, and in my opinion should be positively encouraged, to make plain by express terms whether or not that conditionality exists. To do so serves rather than evades or frustrates the purposes of section 2, an important part of which is to encourage clarity rather than uncertainty in land transactions.’

Longmore, Smith LJJ, Briggs J
[2010] EWCA Civ 277, [2010] 2 EGLR 161, [2010] 12 EG 97 (CS), [2010] BLR 579, [2010] 3 All ER 528, [2010] NPC 39, [2010] TCLR 4, [2010] 1 WLR 2715, [2010] 2 All ER (Comm) 494
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
CitedTiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
CitedCommission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd) CA 4-Mar-1995
The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to . .
CitedTootal Clothing Ltd v Guinea Properties Ltd CA 1992
By a single commercial transaction the parties agreed to the grant of a lease, on terms that Tootal (the intending lessee), would carry out shop-fitting works, have the benefit of a three months rent-free period during the which the works were to be . .
CitedGrossman v Hooper CA 11-Apr-2001
The parties had lived together in the house, each contributing but held in the name of one only. The parties disputed the effect under the 1989 Act of a letter signed by each of them setting out their agreement as to the basis on which it was held. . .
CitedStickney v Keeble HL 1917
The purchaser had made repeated complaints about the seller’s delay in completing construction.
Held: The repeated complaints formed a principal ground for justification of the short specified notice period.
Lord Parker of Waddington set . .
CitedBritish Commonwealth Holdings plc v Quadrex Holdings Inc 1989
In considering the reasonableness of a time set in a notice to complete for construction works, the time it would actually take to complete the work is not the only consideration. . .
CitedOun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
CitedBusiness Environment Bow Lane Ltd v Deanwater Estates Ltd CA 27-Jun-2007
Enforcement of repairing obligations in lease after assignments, and the use of collateral contracts. Sir Andrew Morritt C said: ‘The law relating to collateral contracts is well-established but in connection with sales or leases of land needs to be . .
CitedGodden v Merthyr Tydfil Housing Association CA 15-Jan-1997
The Plaintiff was a building contractor; the Defendant a housing association engaged in developing suitable sites for residential accommodation for letting to tenants. Before the contract the parties had successfully completed what was been called . .
CitedInntrepreneur Pub Co v East Crown Ltd 2000
The ‘entire agreement’ clause contained in a lease not only had the effect of rendering evidence of an alleged collateral warranty inadmissible, but also deprived the warranty of all legal effect. It did not collapse the lease in on itself. Lightman . .
Appeal fromNorth Eastern Properties Ltd v Coleman and Another ChD 20-Aug-2009
The parties agreed for the developer to build and the defendants to purchase several apartments. The properties were not completed after a notice to complete and the purchasers purported to rescind the contract. The claimant completed the flats and . .

Cited by:
CitedKeay and Another v Morris Homes (West Midlands) Ltd CA 11-Jul-2012
The claimants sought damages alleging breach of contract. The defendants argued that the contract related to land, and since it was an oral agreement it was unenforceable under the 1989 Act.
Held: It was not possible for a contract which was . .
CitedRock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 11 November 2021; Ref: scu.403471

Littlejohns, Regina (on The Application of) v Devon County Council and Another: Admn 24 Mar 2015

The claimants sought judicial review of the refusal by the defendants to register rights of common in certain lands under the 2006 Act. The defendants said that the rights asserted did not fall within the scope of transitional provisions in the 2006 Act.
Held: The Authority’s decision was correct in law. The purpose of Schedule 3 was to provide a brief window within which the commons register could be updated and corrected by incorporating any registrations which could have been, but were not, made under the CRA 1965. Thereafter, any unregistered rights would be extinguished under paragraph 3, repeating the legislative approach adopted by section 1(2)(b) CRA 1965.

Lang DBE J
[2015] EWHC 730 (Admin), [2015] 3 WLR 862, [2015] WLR(D) 136, [2015] 1 QB 869
Bailii, WLRD
Commons Act 2006
Citing:
CitedCentral Electricity Generating Board v Clwyd County Council 1976
The owner of a farm applied late for the registration of a right of common over the Dee Marsh Saltings which had been provisionally registered as common land. After an inquiry the Commons Commissioner, Hugh Francis QC, confirmed the registration of . .
CitedOxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .

Cited by:
Appeal fromLittlejohns and Another v Devon County Council and Another CA 6-May-2016
Appeal against rejection of request for registration of land as a common: ‘At the heart of the appeal lies the question of law whether it is possible to acquire a right of common by virtue of an express grant or (as in the present case) user after 2 . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 11 November 2021; Ref: scu.544834

Parkin v Thorold: CA 1 May 1852

Time Not of Essence in Standard Land Contract

The parties had exchanged contracts to complete on a day. The vendor requested a postponment and the buyer agreed. On the new day fixed, the title was still complete. The vendor now appealed against refusal of his request for an order for specific performance.
Held: The appeal succeeded. On a contract for the sale of land, the time originally set for completion is not, in equity, of the essence. Either party may however give notice to the other insisting on completion within a reasonable time.

Lord Romilly MR
(1852) 22 LJ Ch 170, [1852] EngR 535, (1852) 16 Beav 59, (1852) 51 ER 698
Commonlii
England and Wales
Citing:
Appeal fromParkin v Thorold 2-Jun-1851
A purchase was to be completed on the 25th October. Before that, day arrived the purchaser, at the vendor’s request, extended the time to the 5th of November. The title, however was not completed on that day. Held, that the purchaser was at liberty . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Leading Case

Updated: 10 November 2021; Ref: scu.295658

Re Spollon and Long’s Contract: ChD 1936

The court considered the nature of title which could be imposed on a reluctant purchaser of land. One of the title deeds was not properly stamped. This defect was considered a matter of importance to the purchaser because if the title were subsequently challenged, he would not be able to produce in evidence the improperly stamped deed as part of the chain of title. For this reason he might have difficulty in selling the property without making special conditions.
Held: Luxmoore J said: ‘The purchaser having bought under an open contract was entitled to have a good marketable title which, as I understand it, is a title which will enable him to sell the property without the necessity of imposing special conditions of sale restrictive of the purchaser’s rights.’

Luxmoore J
[1936] Ch 713
England and Wales
Cited by:
CitedBarclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co CA 21-May-1998
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 10 November 2021; Ref: scu.229220

Winterburn and Another v Bennett and Another: CA 25 May 2016

The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the defendant’s ownership, using it exclusively as a car park for their shop customers.
Held: The claimants’ appeal against rejection of a claim to use for more than 20 years giving rise to a presumption of lost modern grant failed. The signs had been continually present, and now in the context of commons registration, the signs were enough to defeat the claim. ‘The situation which has arisen in the present case is commonplace. Many millions of people in this country own property. Most people do not seek confrontation, whether orally or in writing, and in many cases they may be concerned or even frightened of doing so. Most people do not have the means to bring legal proceedings. There is a social cost to confrontation and, unless absolutely necessary, the law of property should not require confrontation in order for people to retain and defend what is theirs. The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others. I do not see why those who choose to ignore such signs should thereby be entitled to obtain legal rights over the land.’

Sharp, David Richards LJJ, Moylan J
[2016] EWCA Civ 482, [2016] WLR(D) 297
Bailii, WLRD
England and Wales
Citing:
CitedDalton v Henry Angus and Co HL 14-Jun-1881
The court explained the doctrine of lost modern grant. Where there has been more than 20 years’ uninterrupted enjoyment of an easement, and that enjoyment has the necessary qualities to fulfil the requirements of prescription, then unless, for some . .
CitedNewnham v Willison CA 1987
Kerr LJ considered the exercise of an easement over land (a sweep of a curve over a driveway) by force, saying: ‘In my view, what these authorities show is that there may be ‘vi’ – a forceful exercise of the user – in contrast to a user as of right . .
CitedRegina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
CitedTaylor v Betterment Properties (Weymouth) Ltd and Another CA 7-Mar-2012
The respondent owned farmland over which public rights of way were claimed. . .
CitedBarkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
CitedEaton v The Swansea Waterworks Company 5-Jun-1851
Case for disturbing a watercourse which of right ought to flow into plaintiff’s close to irrigate it, On the trial it appeared that the watercourse was not ancient, but that the water had flowed in its present muree for more than twenty years, past . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 10 November 2021; Ref: scu.564718

Harris v Flower: CA 1904

The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way was appurtenant (‘the Pink Land’) and partly on other land (‘the White Land’). A claim was put forward on behalf of the plaintiffs that the right of way had been abandoned, on the ground that, as it was practically impossible to separate the lawful from the excessive user, the right of way could not be used at all.
Held: The appeal, based upon this contention, failed. There had been no abandonment, but the user of the way for access to the buildings so far as they were situate upon land to which the right of way was not appurtenant was in excess of the rights of the defendants, and a declaration was made accordingly, with liberty to apply. An alteration to provide for a mode of enjoyment by the dominant tenement with the effect of increasing the restriction beyond its legitimate limit will not be allowed. The use of an easement cannot be extended, beyond the scope of the grant, to impose a burden greater than that which the servient owner agreed to accept. A right to pass over plot A to reach plot B cannot be used as a means of access to plot C, unless it was so used at the time of the grant.
Vaughan-Williams LJ rejected a claim of a right of way for land the claim as excessive, on the basis that the uses for the additional land: ‘cannot be said to be mere adjuncts to the honest user of the right of way for the purposes of the Pink land . . It is not a mere case of user of the pink land with some usual offices on the White Land connected with the buildings on the Pink Land.’ and
‘I cannot help thinking that there not only may be, but there must be, many things done in respect of the buildings on the white land which cannot be said to be mere adjuncts to the honest user of the right of way for the purposes of the pink land . . under these circumstances it seems to me that, notwithstanding the fact that the buildings on the white and on the pink lands are intended to be used jointly for one purpose, yet that consideration does not exclude the inference that the use of the way is for the purpose of giving access to land to which the right of way is not appurtenant.’
The use of the factory would increase the volume of traffic on the way beyond the level permitted by the grant: ‘This particular burthen could not have arisen without the user of the white land as well as of the pink. It is not a mere case of user of the pink land, with some usual offices on the white land connected with the buildings on the pink land. The whole of object of this scheme is to include the profitable user of the white land as well as the pink, and I think access is to be used for the very purpose of enabling the white land to be used profitably as well as the pink, and I think we ought under these circumstances to restrain this user.’
Romer LJ said: ‘I think that it is impossible to say that this large building is to be regarded as if wholly erected on the land coloured pink, nor can it be said that every user of the way for the purposes of the land coloured white is one for the proper enjoyment of the land coloured pink. I will take one instance. The defendant has used, and claims a right to use, this right of way for the purpose of carrying building materials for the part of his buildings on the land coloured white. That, to my mind, is a user of the right of way for passage over the land coloured pink for the enjoyment of this land coloured white. It is impossible to say that by reason of one building being on both lands the defendant has made the right of way which was granted for the enjoyment of the one a right of way for the enjoyment of both, and that is what the defendant is really doing. That would substantially enlarge the grant of the right of way. The servient tenement is not obliged to submit to the carrying of building materials for the purpose I have indicated; and other incidences might easily be given which would result in using the right of way for purposes of the land coloured white, and not for the true and proper enjoyment of the land to which the way was appurtenant.’ and ‘The law really is not in dispute. If a right of way [is] granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B . . in the present case the defendant might have erected a building on the land coloured pink [the dominant tenement] and used it for a contractor’s business, and made use of the right of way for that purpose; but what he is really doing here is, under the guise of the enjoyment of the dominant tenement, to try and make the right of way become a right of way for the enjoyment of both lands, the pink and the white [the white land being a non-dominant tenement which the defendant also owned and which adjoined the dominant tenement], and [thereby use] the land coloured pink as a mere continuation of the right of passage from the pink to the white. That is not what is justified by the grant, and the plaintiff is entitled to say it is in excess of the grant, and a declaration in his favour ought to be made accordingly.’
Cozens-Hardy LJ said: ‘What is the right of way? It is a right of way for all purposes – that is, for all purposes with reference to the dominant tenement. The question is whether the defendant has not attempted, and is not attempting, to enlarge the area of the dominant tenement. The land coloured white is entirely landlocked by the acts of the defendant. The only access is by the passage over the land coloured pink; and it is, in my judgment, impossible to use the right of way so as to enlarge the dominant tenement in that manner.’

Vaughan-Williams LJ, Romer LJ, Cozens-Hardy LJ
(1904) 74 LJ Ch 127, (1904) 91 LT 816
Citing:
CitedSkull And Another v Glenister And Others 1864
A right of way appurtenant to land passes to the tenant by a parol demise of the land, though nothiiig is said about it at the time of the demise. – A, having a right of way to D close, demised the close to B. The latter, being possessed of an . .
CitedWilliams v James 1867
A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the . .

Cited by:
CitedWall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .
CitedNickerson v Barraclough CA 2-Jan-1981
The plaintiff had bought land landlocked save over a bridge and a lane beonging to the defendant leading to the highway. He claimed a right of way relying on a conditional grant from 1906, section 62 of the 1925 Act, and also asserted a way by . .
AffirmedPeacock and Another v Custins and Another CA 14-Nov-2000
The conveyance of a field constituting the dominant land to the claimants was expressed to be subject to the benefit of a right of way over land owned by the defendants, enabling the claimants to reach the dominant land ‘at all times and for all . .
CitedEDF Energy Networks (EPN) Plc v BOH Ltd and Others ChD 4-Dec-2009
. .
CitedSite Developments (Ferndown) Ltd and Others v Cuthbury Ltd and Others ChD 13-Jan-2010
. .
CitedSmith and Another v Muller and others CA 17-Dec-2008
. .
CitedWall v Collins and Collins Chd 11-Aug-2009
The claimant sought orders to protect his freedom to use a right of way over neighbouring land. . .
CitedDas and others v Linden Mews Ltd CA 1-May-2002
. .
CitedCdc2020 Plc v Ferreira CA 5-May-2005
. .
CitedWilkins and Another v Lewis ChD 29-Jul-2005
. .
CitedSinclair v Morrison, McNealis LRA 9-May-2012
LRA Easements and Profits A Prendre – Acquisition of easement by prescription; easement on foot over existing right of way granted by deed; identification of the dominant tenement; whether user as of right; . .
CitedWilliams, Williams v Madden, Goodsell, Hubbard (Easements and Profits A Prendre) LRA 17-May-2012
LRA Prescriptive right of way established by the Applicants for the benefit of their home over a strip of roadway belonging to the Respondents who were on notice of their use of that land. The use of the way with . .
CitedGiles v Tarry and Another CA 21-Jun-2012
. .
CitedPrice and Another v Nunn CA 31-Jul-2013
. .
AppliedJobson v Record CA 1998
A right of way was granted for all purposes connected with the use and enjoyment of the dominant tenement as agricultural land. The dominant tenement was used for the purpose of storing timber felled on neighbouring land and the question was whether . .
CitedMiller v Tipling 1918
(Ontario Court of Appeal) Mulock CJ Ex said: ‘The law is well established that a right of way appurtenant to a particular close must not be used colourably for the real purpose of reaching a different adjoining close. This does not mean that where . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 10 November 2021; Ref: scu.252423

Thompson v Bee and Another: CA 20 Nov 2009

The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, and that use as an access for a new residential development was beyond the permitted use.
Held: The judge had interpreted the grant too restrictively and had not respected the deliberately wide choice of words.
However the interpretation of the extent of use was a matter of fact and degree for the judge, and his view should not be overturned in the absence of clear error. None had been shown. The words ‘all purposes’ did not authorise an increase in use to a level at which the use was more than would be reasonably tolerable, and might amount to a nuisance.
In a right of way of necessity, the purpose of use remained what had been necessary at the time when the right was implied. Without the agreement of the parties it could not be altered.

Mummery, Etherton, Sullivan LJJ
[2009] EWCA Civ 1212
Times, Bailii
England and Wales
Citing:
CitedCorporation of London v Riggs CA 1880
The court considered whether a right of way of necessity had been granted: ‘the real question I have to decide is this – whether, on a grant of land wholly surrounding a close, the implied grant, or re grant, of a right of way by the grantee to the . .
CitedKPMG Llp v Network Rail Infrastructure Ltd CA 27-Apr-2007
The parties disputed the interpretation of a break clause in their lease. Carnwath LJ said that courts should not readily accept that parties have made mistakes in formal documents: ‘correction of mistakes by construction’ is not a separate branch . .
CitedPhilllips v Low ChD 3-Nov-1891
There had been a conveyance of land with a house on it whose window looked onto other land of the vendor.
Held: There was an implied ancillary right that the window would not be obscured by act of the vendor. There is applicable to devises of . .
CitedSt Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA 1973
When looking at a contract ‘one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.’
The contra preferetem rule can only come into play . .
CitedHalsall v Brizell ChD 1957
Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the . .
CitedMetropolitan Railway Co v Fowler CA 1892
Lord Esher MR said: ‘An easement is some right which a person has over land which is not his own; but, if the land is his own, if he has an interest in it, then his right is not an easement. You cannot have an easement over your own land..’ . .
CitedMcKay Securities Ltd v Surrey County Council ChD 9-Dec-1998
Where a grant of a right of way is ‘for all purposes’ its use will not be limited by the purposes for which the dominant land was used at the date of the grant. The very general expression was to be given its ordinary unvarnished meaning, as a . .
CitedGeorge Attenborough and Son v Solomon HL 19-Nov-1912
The court asked whether an executor could validly pawn an asset of the estate. Also, the transfers of the two properties previously in the ownership of the testatrix were made by virtue of the dispositions in her will, which have become operative . .
CitedRoslingand Others v Pinnegar CA 9-Oct-1998
When asked to interpret the permitted extent of use of a right of way, the court may assist the parties by working out for them some guidelines as to what would be a reasonable user rather than simply making a general injunction forbidding excessive . .
CitedHurt v Bowmer 1937
The expression ‘as at present enjoyed’ with reference to a right of way was not a reference to, or a limitation of, the purposes for which the way was used, such as agricultural purposes, but was to the quality of user in the sense of the manner in . .
CitedJelbert v Davies CA 1968
Lord Denning MR explained that even a right granted in wide terms like ‘at all times and for all purposes’ is not a sole right, if it is used in common with others, and it does not authorise unlimited use. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 November 2021; Ref: scu.380346

In re Dolphin’s Conveyance: ChD 1970

The court considered whether a building scheme had been established so as to allow the mutual enforcability of restrictive covenants. A particular question arose as to the extent of the scheme involved.
Held: A building scheme was established. The court could take evidence from the town clerk of Birmingham Corporation showing the limits of the Selly Hill Estate mentioned in the conveyances.
Stamp J said: ‘It is trite law that if you have conveyances of the several parts of an estate all containing the same or similar restrictive covenants with the vendor, that is not enough to impute an intention on the part of that vendor that the restrictions should be for the common benefit of the vendor and of the several purchasers inter se: for it is at least as likely that he imposed them for the benefit of himself and of the unsold part of the estate alone.’

Stamp J
[1970] 2 All ER 664, [1970] Ch 654, [1970] 3 WLR 31
England and Wales
Cited by:
CitedSmall v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
CitedPerkins and Another, Re 87 Peplins Way UTLC 25-Oct-2012
UTLC RESTRICTIVE COVENANT – modification – covenant restricting development to one dwelling per plot – proposal to erect additional house within grounds of existing property – objectors’ entitlement to benefit – . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 09 November 2021; Ref: scu.188830

Country and Metropolitan Homes Surrey Ltd v Topclaim Ltd: 1996

The issue was the proper construction and effect of condition 6.8 of the Standard Conditions of Sale, 2nd edition, in relation to the giving of a notice to complete a contract for the sale of land.
Held: The condition provided exclusively for the circumstances in which a notice to complete could be given in respect of a contract which incorporated the terms of the Standard Conditions of Sale, 2nd edition, and that any right at common law to serve a notice to complete was thereby excluded.

The contract also purported to exclude section 49(2). The vendor failed to complete, but sought not to return the deposit. The judge said: ‘It is a startling proposition that, by excluding that section in relation to the contract, the purchaser has prevented itself from obtaining repayment of the deposit even if the vendor has been flagrantly in breach of the contract and the purchaser has not. It also seems curious, in relation to that submission, that under the contract in this case the vendor’s solicitors hold the deposit as stakeholder, since that clearly implies that there could be circumstances in which they would have to pay the deposit back to the purchaser rather than account for it to their client the vendor.
The answer to this contention is to be found in the judgment of Mr. Gerald Godfrey Q.C. in Dimsdale Developments (South East) Ltd. v. De Haan, 47 P. and C.R. 1. He held that the vendor’s notice to complete was validly served but, despite that, the purchaser sought the return of the deposit under section 49(2). He therefore had to consider the ambit of the subsection in the light of a number of decided cases. Before doing that he made the following observations of general relevance: ‘It is to be observed that a purchaser has no need to pray this subsection in aid when it is not he but the vendor who is the defaulter. The subsection is needed only to enable a purchaser who is himself in default to recover his deposit.’
He consideralso circumstances in which the court might conclude that even though the purchaser was in default the justice of the case might require that the deposit be repaid to the purchaser. It is that jurisdiction which, it seems to me, is excluded by the special condition in this contract.’

Timothy Lloyd QC
[1996] Ch 307
Law of Property Act 1925 49(2)
England and Wales
Citing:
CitedRightside Properties Ltd v Gray ChD 1975
The vendor had served an invalid notice to complete on the purchaser. When the purchaser did not comply with the notice the vendor purported to terminate the contract by accepting the purchaser’s alleged repudiation. Walton J held that it was in . .
CitedDimsdale Developments (South East) Ltd v De Haan 1983
The court considered the interpretation of clauses allowing a notice to complete a contract for the sale of land. Godfrey QC said: ‘In my judgment this notice, served as it was under cover of the letter of November 10, 1981, referring to the . .

Cited by:
CitedAstea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
CitedAribisala v St James Homes (Grosvenor Dock) Ltd ChD 12-Jun-2007
The parties had agreed in a contract for the sale and purchase of land to exclude the application of section 49(2). The buyer had failed to comply with a notice to complete.
Held: The parties cannot contract out of section 49(2). The . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Leading Case

Updated: 09 November 2021; Ref: scu.223519

Goody v Baring: CA 1956

The plaintiff asked the defendant solicitor to act for him in the purchase of a leasehold house. The solicitor was also asked to act for the vendor. The replies he gave, innocently, on behalf of the vendor were inaccurate as to the conditions of the tenancies. The buyer eventually had to repay overcharged rents to the tenants.
Held: The defendant was liable in that he had not questioned the vendor’s answers, but had simply relayed them. In a contract for the sale of land the buyer’s solicitor has a duty to make appropriate enquiries, and where these reveal some encumbrance, to pursue those enquiries. Once contracts have been exchanged, he remains under a duty to request confirmation of the replies given.

[1956] 1 WLR 448, [1956] 2 All ER 11, [1956] Sol Jo 320
England and Wales

Land, Contract, Professional Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.219178

Shimizu (UK) Ltd v Westminster City Council: HL 11 Feb 1997

The removal of a listed building’s chimney stacks was an alteration allowing a claim for compensation. The phrases ‘alteration’ and ‘demolition’ are mutually exclusive. Although part of a building may be a listed building, a part of a listed building cannot itself be a listed building.

Lord Browne-Wilkinson, Lord Griffiths, Lord Lloyd of Berwick, Lord Cooke of Thorndon, Lord Hope of Craighead
Gazette 12-Mar-1997, Times 11-Feb-1997, [1997] 1 All ER 481, [1997] UKHL 3, [1997] 1 WLR 168
House of Lords, Bailii
Planning (Listed Buildings and Conservation Areas) Act 1990
Citing:
Appeal fromShimizu (UK) Ltd v Westminster City Council CA 20-Dec-1994
The phrases ‘demolition’ and ‘alteration’ are mutually exclusive concepts when used for the purposes of the Planning Acts.
Held: When section 27(1)(a) referred to ‘an application for . . consent for the alteration . . of a listed building’, . .
CitedLondon County Council v Marks and Spencer Ltd CA 1952
While demolition works as such did not require planning permission, works which comprised demolition, site clearance and the erection of a new building on the site were operations for which planning permission would have been required but for the . .
CitedRegina v North Hertfordshire District Council, Ex parte Sullivan 19-May-1981
The court was asked whether an extension of a listed building which involved the demolition of parts of the listed building constituted demolition within the meaning of the Act which required the proposal to be notified to various interested bodies . .
CitedDebenhams Plc v Westminster City Council HL 1987
The extended definition of ‘listed building’ in section 54(9) applied equally for the purposes of paragraph 2(c) of Schedule 1 of the 1967 Act. No rates were to be payable in respect of a hereditament for any period during which it was included in a . .
CitedCustoms and Excise Commissioners v Viva Gas Appliances Limited HL 1983
Any work on the fabric of a building constituted its alteration ‘except that which is so slight or trivial as to attract the application of the de minimis rule’. The word ‘demolition’ meant destroying the building as a whole. . .
CitedFurniss (Inspector of Taxes) v Dawson HL 9-Feb-1983
The transfer of shares to a subsidiary as part of a planned scheme immediately to transfer them to an outside purchaser was regarded as a taxable disposition to the outside purchaser rather than an exempt transfer to a group company. In defined . .

Cited by:
CitedHer Majesty’s Commissioners of Customs and Excise v Zielinski Baker and Partners Limited HL 26-Feb-2004
The commissioners sought to charge to VAT charges for works which had been carried out to a building within the curtilage of a listed building. The taxpayer sought zero-rating.
Held: The outbuilding to which alterations were made must have . .
CitedEast Riding of Yorkshire Council, Regina (on the Application of) v Hobson Admn 18-Apr-2008
The authority appealed by case stated from the dismissal of its complaints that the defendant had altered a listed building. He had been given permission to carry out certain works, but had in effect demolished and rebuilt the property.
Held: . .
CitedSave Britain’s Heritage, Regina (on The Application of) v Secretary of State for Communities and Local Government and Others Admn 14-May-2010
The claimant challenged the order allowing the demolition of a disused listed building saying that the Direction was contrary to European law in not requiring an Environmental Impact Assessment (EIA). The Secretary of State said an EIA was not . .

Lists of cited by and citing cases may be incomplete.

Planning, Land

Updated: 09 November 2021; Ref: scu.89238

Cuckmere Brick Co Ltd v Mutual Finance Ltd: CA 1971

A mortgagee selling as mortagee in possession must ‘take reasonable care to obtain the true value of the property at the moment he chooses to sell it’ and obtain the best price for the property reasonably obtainable on the open market. However, Salmon LJ said: ‘No doubt in deciding whether he has fallen short of that duty the facts must be looked at broadly, and he will not be adjudged to be in default unless he is plainly on the wrong side of the line’.
It is not a duty breach of which is actionable without proof of damage. In default of provision to the contrary in the mortgage, the power of sale is conferred upon the mortgagee by way of bargain by the mortgagor for his own benefit and he has an unfettered discretion to sell when he likes to achieve repayment of the debt which he is owed. There is no obligation on a mortgagee to delay a sale in order to get a higher price, and the best price reasonably possible does not necessarily equate with true market value.
Salmon LJ said: ‘a mortgagee in exercising his power of sale does owe a duty to take reasonable precautions to obtain the true market value of the mortgaged property at the date on which he decides to sell it. No doubt in deciding whether he has fallen short of that duty the facts must be looked at broadly, and he will not be adjudged to be in default unless he is plainly on the wrong side of the line.’ and
‘It is well settled that a mortgagee is not a trustee of the power of sale for the mortgagor. Once the power has accrued, the mortgagee is entitled to exercise it for his own purposes whenever he chooses to do so. It matters not that the moment may be unpropitious and that by waiting a higher price could be obtained. He has the right to realise his security by turning it into money when he likes. Nor, in my view, is there anything to prevent a mortgagee from accepting the best bid he can get at an auction, even though the auction is badly attended and the bidding exceptionally low. Providing none of those adverse factors is due to any fault of the mortgagee, he can do as he likes. If the mortgagee’s interests, as he sees them, conflict with those of the mortgagor, the mortgagee can give preference to his own interests, which of course he could not do were he a trustee of the power of sale for the mortgagor.’
Cross LJ said: ‘A mortgagee exercising a power of sale is in an ambiguous position. He is not a trustee of the power for the mortgagor, for it was given him for his own benefit to enable him to obtain repayment of his loan. On the other hand, he is not in the position of an absolute owner selling his own property but must undoubtedly pay some regard to the interests of the mortgagor when he comes to exercise the power.
Some points are clear. On the one hand, the mortgagee, when the power has arisen, can sell when he likes, even though the market is likely to improve if he holds his hand and the result of an immediate sale may be that instead of yielding a surplus for the mortgagor the purchase price is only sufficient to discharge the mortgage debt and the interest owing on it. On the other hand, the sale must be a genuine sale by the mortgagee to an independent purchaser at a price honestly arrived at.’

Salmon LJ, Cross LJ
[1971] Ch 949, [1971] 2 All ER 633, [1971] EWCA Civ 9, (1971) 22 P and CR 624, [1971] 2 WLR 1207
Bailii
England and Wales
Cited by:
CitedNewport Farm Ltd and 22 others v Damesh Holdings Ltd and others PC 7-Jul-2003
(New Zealand) The clamaints alleged that mortgagees had failed to take proper steps to obtain the best price on selling their properties as mortagees. The common law duty had been encapsulated in the 1952 Act. Here, however the landowners had . .
CitedRe Charnley Davies Ltd (No 2) ChD 1990
An administrator owed a duty to the company over which he was appointed to take reasonable care to obtain the best price that the circumstances, as he reasonably perceived them to be, permitted, including a duty to take reasonable care in choosing . .
CitedRoger Michael and others v Douglas Henry Miller and Another ChD 22-Mar-2004
Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
Held: In . .
CitedRaja v Austin Gray (A Firm) CA 19-Dec-2002
A mortgagee is at all times free to consult his own interests alone as to whether and when to exercise his power of sale. The relationship and duties owed by the receiver are equitable only. Peter Gibson LJ said: ‘(1) A mortgagee with the power of . .
CitedBell v Long and others ChD 16-Jun-2008
Land had been sold by administrative receivers appointed under a charge. The owner said that the lands had been sold at an undervalue.
Held: The action failed. The claimant could not show any breach of duty or that the assessments made were . .
CitedSilven Properties Ltd and Another v Royal Bank of Scotland Plc and Others CA 21-Oct-2003
The claimants complained that the receivers appointed by the bank had failed to get the best price for properties charged to the bank and sold, in that they had failed to obtain planning permissions which would have increased the values of the . .
CitedMeah v GE Money Home Finance Ltd ChD 18-Jan-2013
Claims by mortgagor for compensation from his mortgagee for having sold the mortgaged property at allegedly an undervalue. . .
CitedForeprime Properties Ltd v Cheval Bridging Finance Ltd CA 10-Nov-2015
Leave to appeal against rejetion of a claim that the respondent mortgagee had failed to secure the best price on realising the property charged. . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 02 November 2021; Ref: scu.184561

Tiverton Estates Ltd v Wearwell Ltd: CA 1975

“Subject to Contract” not to be diluted

‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in negotiation until a formal contract is executed’ It was vital that the meaning and effect of the phrase must not be diluted. As to the required memorandum, it must contain a recognition of the existence of the prior contract and must state its terms.
Lord Denning MR said: ‘These courts are masters of their own procedure and can do what is right even though it is not contained in the rules.’
Stamp LJ said that a memorandum must, to satisfy the section, recognise the contract.

Lord Denning MR, Stamp LJ, Scarman LJ
[1975] Ch 146
Law of Property Act 1925 40
England and Wales
Citing:
ApprovedClearbrook Property Holdings Limited v Verrier ChD 1974
The issue was whether a caution registered in the Land Registry by a plaintiff purchaser who was claiming specific performance of an agreement for sale should be vacated. The effect of the vacation of the caution was that the plaintiff’s claim for . .
IncorrectLaw v Jones 1974
A ‘subject to contract’ document might be evidence of an antecedent or oral contract and satisfy section 40 of the Law of Property Act 1925 if the stipulation was later waived. A memorandum or note must, if it is to be effective, not only state the . .

Cited by:
CitedCarlton Communications Plc, Granada Media Plc v The Football League ComC 1-Aug-2002
The applicants sought a declaration that they had not provided guarantees to support a contract between a joint venture company owned by them, OnDigital, and the respondent to screen football matches. The company had become insolvent.
Held: . .
CitedIrani v Irani and others ChD 24-Jul-2006
The deceased had effectively settled his divorce ancillary relief proceedings by promising to leave a property by will to to his former wife, the claimant. He signed a document which appeared to be intended to give effect to his undertaking, but the . .
CitedNorth Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
CitedGolden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .
CitedGolden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
CitedNugent v Nugent ChD 20-Dec-2013
The court was asked whether the court has, following the the 2002 Act, an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.183017

Hopgood v Brown: CA 3 Feb 1955

Two adjoining plots were conveyed to the same purchaser. Buildings were constructed, and the adjusted boundary required an obtuse angle. The plots were sold on separately but with the original straight boundaries. The plans on the conveyances had no measurements.
Held: The plans being the same, the lines were to be taken from the original conveyances. The building (a garage) encroached, though the claimant was not entitled to any relief.
A plan introduced ‘for the purpose of identification only’ ‘cannot control the parcels in the body of any of the deeds’.

Sir Raymond Evershed MR, Jenkins, Morris LJJ
[1955] 1 WLR 213, [1955] 1 All ER 550, (1055) 99 Sol Jo 168, [1955] EWCA Civ 7
Bailii
England and Wales
Citing:
CitedWallington v Townsend ChD 1939
The parties exchanged contracts for the sale and purchase of land, but the contract had attached an incorrect plan, including a strip of land now disputed. Neither party had properly attended to what they were signing. The plaintiff buyer maintained . .
CitedWillmott v Barber ChD 19-Jun-1880
In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a . .

Cited by:
CitedDrake and Another v Fripp CA 3-Nov-2011
The parties disputed the location of the boundary between their properties. An appeal against the adjudicator’s award altering the filed plan.
Held: The appeal failed: ‘there was no restriction on the adjudicator’s power to direct the Land . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 02 November 2021; Ref: scu.235515

Ezekiel v Orakpo: CA 16 Sep 1996

A charging order was made in 1982 to secure pounds 20,000 under a judgment given in 1979. The judgment creditor did not seek to enforce the charging order until almost 12 years had elapsed since the making of the charging order. An order for possession was made so as to enforce the order. The debtor tendered a sum sufficient to pay the principal debt but not interest on it. The parties appealed a finding that the creditor was entitled to interest, but only for six years.
Held: The creditor was entitled to interest not limited to six years. A charging order carries a charge to secure interest, whether or not interest is specifically mentioned. Enforcement of a foreign currency judgment by means of a charging order required the judgment debt first to be converted to Sterling before completion of the enforcement by the making of the charging order. Enforcement of a judgment debt by means of a charging order under the Charging Orders Act 1979 is completed when the charging order is made final.
Millett LJ said that, for a judgement to carry judgment interest it is not necessary to say so specifically. Therefore it is also not necessary to mention interest in any Charging Order carrying the judgement into effect for such interest to be added to the security. He continued:-
‘Section 3(4) of the Charging Orders Act 1979 provides that the Charging Order takes effect as an equitable charge created by the judgment debtor by writing under his hand. It must therefore be given the same effect unless the Act itself provides otherwise as would an equitable charge on the land in question to secure a stated principle sum but with no mention of interest. Such a charge would carry interest even though there were no words allowing interest on the charge itself. That was decided at first instance in re Drax… which was followed . . in Stoker v Elwell . . The defendant invited us to over rule Stoker . . and re Drax although they have stood unchallenged for nearly a century.
His submission was founded on the well established principle that a Charging Order cannot be given except for an ascertained sum . . It is clear Law for example that a Charging Order cannot be made for untaxed costs. In the present case, of course, the costs were taxed. But it is said by parity of reasoning that it cannot be made to secure future interest since the amount of such interest cannot be ascertained in advance. However, the Charging Orders Act 1979 itself entitles the Court to make a Charging Order for monies due or to become due, and it appears to me that future interest at an ascertained rate (albeit a variable rate) from the date of judgment to the date of payment is an ascertained or at least an ascertainable sum for the purpose of the rule in question.
So far as the costs of enforcing the security are concerned, it is of course perfectly true that at the date of the Charging Order, or indeed subsequently, it was quite impossible to ascertain them. The Judge came to the conclusion that the Charging Order must, by the provisions of the statute, be given the same effect as if it were an equitable charge under hand only. If it were, the chargee would have the right in equity to add the costs of enforcing the security to the security. He considered that that should be implied into the Charging Order by virtue of section 3(4). I agree with him and do not think it necessary to add anything further on the matter.’

Millett LJ
Times 16-Sep-1996, [1997] 1 WLR 340
Judgments Act 1938 17
England and Wales
Citing:
Appeal fromEzekiel v Orakpo ChD 4-Nov-1994
The claimant had obtained a charging order to secure a judgment debt, but took no steps to enforce it for more than twelve years. The chargee denied that it could any longer be enforced, and also that the order carried interest when interest had not . .
See AlsoEzekiel v Orakpo CA 1977
A lease had been forfeited for non payment of rent. The lessor then took proceedings for possession. The tenant claimed that the action was invalid because a receiving order had been made against him in the meantime.
Held: The Court rejected . .

Cited by:
CitedCarnegie v Glessen and Others CA 1-Mar-2005
A dispute had been settled by imposition of a charging order against property expressed in a foreign currency. The claimant now said such an order was not possible, and had been made by mistake correctable under the slip rule.
Held: The Master . .
AppliedYorkshire Bank Finance Ltd v Mulhall and Another CA 24-Oct-2008
The bank had obtained a judgement against the defendant, and took a charging order. Nothing happened for more than twelve years, and the defendant now argued that the order and debt was discharged.
Held: The enforcement of the charging order . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Land, Limitation

Leading Case

Updated: 02 November 2021; Ref: scu.80429

Wimbledon and Putney Commons Conservators v Dixon: CA 1875

A prescriptive right of way had been enjoyed in connection with the use of the dominant land for agricultural purposes, which had included enlarging the farmhouse and rebuilding a cottage. The dominant owner could not use the way for carting materials for the purpose of effecting a residential development on his land.
James LJ said: ‘We have then to consider whether the character of the [dominant] property can be so changed as substantially to increase or alter the burden upon the servient tenement. I was strongly of opinion that it was the settled law of this country that no such change in the character of a dominant tenement could be made as would increase the burden on the servient tenement.’ and ‘[I]f a right of way to a field be proved by evidence of user, however general, for whatever purpose qua field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the way for the purpose of the manufactory or town so built.’ (Baggallay JA) [Y]ou must neither increase the burden on the servient tenement nor substantially change the nature of the user.’ (Mellish LJ), ‘Assuming that it is made out that [the dominant owner] and his tenants have used this way, not exclusively for agricultural purposes, but for all purposes for which they wanted it, in the state in which the land was at the time of the supposed grant – at the time when the way first began – and assuming that there has been no material alteration in the premises since that time, does that entitle [the dominant owner] to alter substantially and increase the burden on the servient tenement by building any number of houses he pleases on this property and giving to the persons who inhabit those houses the right to use the way for all purposes connected with the houses?’

James LJ, Baggallay JA, Mellish LJ
(1875) 1 Ch D 362
Citing:
AppliedWilliams v James 1867
A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the . .

Cited by:
CitedMcAdams Homes Ltd v Robinson and Another CA 27-Feb-2004
The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .
AppliedMilner’s Safe Company Limited v Great Northern and City Railway Company ChD 1907
A right of way had been impliedly granted in favour of a number of terraced houses over a passage running to the back of those houses, which were used at the time of grant for residential and warehouse use. A right to use the passageway for an . .
AppliedRPC Holdings Limited v Rogers 1953
A prescriptive right of way had been enjoyed in connection only with agricultural use of the dominant land, which was a field.
Held: The way could not be used in connection with the use of the field as a caravan and camping site. Harman J . .
CitedBritish Railways Board v Glass CA 1965
An easement arising by prescription involves a fictional lost grant. The court considered the extent of user of an easement in relation to a prescriptive right of way for the benefit of land used as a caravan site: ‘A right to use a way for this . .
CitedGiles v County Building Constructors (Hertford) Limited ChD 1971
A right of way had arisen by prescription in favour of land which had two detached dwelling houses on it.
Held: The right of way could continue to be used, even after the two houses had been demolished and replaced by a three-storey block of . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 02 November 2021; Ref: scu.194014

Malekshad v Howard de Walden Estates Limited: HL 5 Dec 2002

A house and an adjoining building had been first demised under one lease, then separated vertically. Two separate residential properties now existed.
Held: The vertical division meant that the two houses could not be enfranchised as one under the Act. The Act also provided that where a property had been divided in such a way that one property lay in part under the other, the Act provided that the Landlord could serve a notice of objection if the projection was material. Birrane was wrongly decided since it used the landlord’s property to determine what was material, and the property in question was the one to be enfranchised. Issues about the enforcement of positive obligations, and flying freeholds could be addressed under 2(5).

Nicholls of Birkenhead, Hope of Craighead, Hobhouse of Woodborough, Millett, Scott of Foscoe LL
Times 06-Dec-2002, [2002] UKHL 49, [2003] 1 AC 1013, [2002] 3 WLR 1881, [2003] 1 All ER 193, [2002] 50 EGCS 114, [2003] 1 EGLR 151, [2002] NPC 160, [2003] HLR 31, [2003] 1 P and CR DG18, [2003] L and TR 13
House of Lords, Bailii
Leasehold Reform Act 1967 2(2) 2(5)
England and Wales
Citing:
OverruledDuke of Westminster and Others v Birrane CA 17-Nov-1994
A basement extending under the house next door means that the property with the basement is not a not a dwelling-house for leasehold enfranchisement purposes. The result would create difficulties with flying freeholds. ‘The primary purpose of . .
Appeal fromMalekshad v Howard De Walden Estates Limited CA 23-May-2001
The applicant sought the leasehold enfranchisement of two leasehold properties. They were contained in separate leases, but the property had been treated as one for some time. A part of one property extended under part of the other. The claim was . .
DoubtedParsons v Trustees of Henry Smith’s Charity CA 1973
‘Materiality under the section ‘must mean material to the tenant or to his enjoyment of the house.’ . .
CitedParsons v Trustees of Henry Smith’s Charity; Parson v Gage HL 1974
The House left open the exact meaning of the phrase ‘material’ in the section noting that whether a part is material is an issue which must be largely factual and one of common sense. The legislative purpose of the rule that divisions of the . .
CitedMalpas v St Ermin’s Property Ltd CA 1992
. .
DistinguishedTandon v Trustees of Spurgeons Homes HL 1982
Tenants sought enfranchisement of their properties, but 75% of building consisted of a shop, and only 25% was living accomodation.
Held: The tenants were entitled to buy the freehold. The question whether a building is a house ‘reasonably so . .
CitedEx parte Allen 1985
A caravan cannot be a house. . .
CitedChelsea Yacht and Boat Club Ltd v Pope CA 6-Apr-2000
The tenant sought to assert that he occupied a houseboat, the Dinty Moore, under a tenancy of a dwellinghouse under the 1988 Act. The claimant appealed a decision that it was.
Held: A house-boat, even though used as a dwelling, did not have . .
CitedLake v Bennett CA 1970
The building had been constructed in 1869. It was used as a house on three floors with a basement. The ground floor was later used as a shoe repairing shop and then as a betting shop with living accommodation still used for dwelling purposes in the . .
See alsoMalekshad v Howard de Walden Estates Ltd (No 2) ChD 19-Dec-2003
The tenant gave notice to enfranchise his leasehold property. The landlord resisted saying it had been given after the tenancy had expired and also that it purported to include property not capable of enfranchisement.
Held: A notice which . .

Cited by:
CitedCollins v Howard De Walden Estates Limited CA 16-Apr-2003
The tenant sought the right to purchase the freehold reversion. Her landlord resisted saying that the properties were excluded from enfranchisement being divided vertically.
Held: The cases are fact dependent, and earlier precedents must be . .
Appealed toMalekshad v Howard De Walden Estates Limited CA 23-May-2001
The applicant sought the leasehold enfranchisement of two leasehold properties. They were contained in separate leases, but the property had been treated as one for some time. A part of one property extended under part of the other. The claim was . .
See alsoMalekshad v Howard de Walden Estates Ltd (No 2) ChD 19-Dec-2003
The tenant gave notice to enfranchise his leasehold property. The landlord resisted saying it had been given after the tenancy had expired and also that it purported to include property not capable of enfranchisement.
Held: A notice which . .
CitedTower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
CitedNeville v Cowdray Trust Ltd and Another CA 5-May-2006
The applicant claimed the right to purchase the freehold reversion for her home. The defendant said it was not held under a low rent so as to qualify, since the rent exceeded the rateable value as assessed. The rating list had been altered meantime . .
CitedGrosvenor Estates Ltd v Prospect Estates Ltd CA 21-Nov-2008
The tenant under a long lease sought enfranchisement. The landlord denied that it was a ‘house’ reasonably so called within the 1967 Act. The building had been constructed as a house, but was now substantially used as offices. They could only be . .
CitedAckerman and Another v Lay and others (Portman Estate Nominees (One) Ltd) CA 16-Dec-2008
The landlords resisted a claim for enfranchisement saying that the appellants were no longer tenants under section 42 of the 1993 Act, the lease having expired. The property was made up of five flats, and was not itself a house.
Held: The . .
CitedMagnohard Ltd v Cadogan and Another CA 4-May-2012
The parties disputed whether a building was a house ‘reasonably so called’ within the 1987 Act. The instant building was designed or adapted for living in, and was divided horizontally into six flats or maisonettes, and included shops.
Held: . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Land

Leading Case

Updated: 02 November 2021; Ref: scu.178328

Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another: CA 4 Apr 2017

Can a recreational purpose underlie an easement

The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but the same rights by way of easements over the communal grounds and facilities.
Held: Sir Geoffrey Vos said: ‘the requirement that an easement must be a ‘right over the dominant tenement a benefit or a utility as such. Thus, an easement properly so called will improve the general utility of the dominant tenement. It may benefit the trade carried on upon the dominant tenement or the utility of living there . . an easement should not in the modern world be held to be invalid on the ground that it was ‘mere recreation or amusement’ because the form of physical exercise it envisaged was a game or a sport.’
The court considered each of the suggested easements and validated them according to their nature.
Sir Geoffrey Vos continued: ‘On its true construction, the grant allowed the claimants the right to use the existing sporting and recreational facilities on the Broome Park Estate (including the Italianate garden) together with any new, improved, or replacement facilities of the same kind replacing the existing facilities on the same areas of land, subject only to minor or de minimis extensions, but not any substantial extensions of such facilities on additional areas of land. This right was an easement insofar as it covered the facilities on the servient tenement existing in 1981 namely the golf course, squash courts, tennis courts, croquet lawn and putting green, and outdoor swimming pool.
Although, the grant purported to provide for an easement of any sporting or recreational facilities that were to be found at the date of the grant on the ground or basement floors of the Mansion House, none of the indoor facilities that existed at the time of the 1981 transfer was the subject of a valid easement.
The declarations that the judge granted were too broad.’

Sir Geoffrey Vos, Chancellor, Kitchin, Floyd LJJ
[2017] EWCA Civ 238
Bailii
England and Wales
Citing:
CitedIn re Ellenborough Park CA 15-Nov-1955
Qualifying Characteristics ofr Easement
Parties claimed a public right to wander through the grounds of the park.
Held: No such right could have been granted or was properly claimed. Lord Evershed MR said: ‘There is no doubt, in our judgment, but that Attorney-General v. Antrobus . .
Appeal fromRegency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
CitedMiller v Emcer Products Ltd CA 20-Dec-1955
An express term in a contract excludes the possibility of implying any term dealing with the same subject-matter as the express term. . .
CitedDukart v District of Surrey and Others 1-May-1978
Supreme Court of Canada – The Court considered an easement allowing free access to the waters of the bay and recognised as easements the grant in favour of residential lots on a development plan of rights to use ‘foreshore reserves’ separating the . .
CitedBlankstein, Fages and Fages v Walsh 1989
(High Court of Manitoba) Cottages were used for summer recreation. Though the acquisition of an easement by prescription to use adjoining land known as the ‘playground’ as a family recreational area was rejected on the facts, as the use was not as . .
CitedGrant v Macdonald 1992
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. . .
CitedLiford’s Case 1614
The owner of land may grant to a man and his heirs the right to take, for instance, all the wood or all the grass that shall grow upon the land of the grantor. A dominant owner of an easement has a right to enter the servient owner’s land for to . .
CitedTaylor v Whitehead 28-Jun-1781
Rights of Way are Particular to the Subject Land
A motion may be made in arrest of judgment after a rule for a new trial has been discharged, and at any time before judgment is entered up. It is not a good justification in trespass, that the defendant has a right of way over part of the plaintiffs . .
CitedMounsey v Ismay 20-Jan-1863
The inhabitants of Carlisle claimed a custom of holding horse races in May over land at Kingsmoor. The landowner’s counsel protested that the fields were arable land.
Held: Martin B: ‘It must be assumed that the custom has existed since the . .
Not followedMounsey v Ismay Cexc 25-Jan-1865
A claim by custom for the freemen and citizens of a town, on a particular day in the year, to enter upon a close for the purpose of holding horse races thereon, is not a claim to an ‘easement’ within the 2nd section of the Prescription Act 2 and 3 . .
CitedNewcomen v Coulson CA 1887
The grantee of an easement may enter the grantor’s land for the purpose of making the grant of the right of way effective viz to construct a way which is suitable for the right granted to him. . .
CitedJones v Pritchard ChD 6-Feb-1908
The grant of an easement ordinarily carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. However the grant of a right of way over a driveway cannot place on the servient owner the obligation to . .
CitedBond v Norman ChD 1939
If an Act is to have the effect of taking away a property right, ‘it must be by plain enactment or necessary intendment’ . .
CitedBond v Nottingham Corporation CA 1940
Sir Wilfred Greene MR said: ‘The nature of the right of support is not open to dispute. The owner of the servient tenement is under no obligation to repair that part of his building which provides support for his neighbour. He can let it fall into . .
CitedDunn v Blackdown Properties Ltd 1961
Application of the rule against perpetuities to expiration of rights of way. . .
CitedRance v Elvin CA 14-Feb-1985
The plaintiff complained that he had an easement over the defendants land for the supply of water, including the right to connect into the mains on the defendant’s land. The defendant said that the right was only to connect to the mains directly. . .
CitedWilliams v Roffey Brothers and Nicholls (Contractors) Ltd CA 23-Nov-1989
The defendant subcontracted some of its work under a building contract to the plaintiff at a price which left him in financial difficulty and there was a risk that the work would not be completed by the plaintiff. The defendant agreed to make . .
CitedDuffy v Lamb (T/a Vic Lamb Developments) CA 10-Apr-1997
The plaintiff sought damages after the interruption of the electricity supply from neighbouring land by the defendant. An easement was established, but the defendant wanted the plaintiff to make his own arrangements for connection. The judge had . .
CitedGreenwich Healthcare National Health Service Trust v London and Quadrant Housing Trust and Others ChD 11-Jun-1998
The plaintiff had acquired land to build a hospital, which would require re-alignment of a link road, over which the defendants had rights of way. The land was also subject to a restrictive covenant in favour of the defendants. The defendants did . .
CitedMulvaney v Jackson, Gough, Holmes and Holmes CA 24-Jul-2002
Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as garden by the cottagers. The land owner removed a flower bed.
Held: . .
CitedCarter, Carter v Cole, Cole CA 11-Apr-2006
Disputed right of way. The court recognised the right of the owner of a servient tenement to repair a roadway.
Longmore LJ said that step-in rights are, by definition, rights to reasonable access for maintenance of the servient tenement, . .

Cited by:
Appeal from (CA)Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 November 2021; Ref: scu.581345

Fairey v Southampton City Council: CA 1956

The landowner denied that a public right of way had been created over his land. Under the 1932 Act, 20 years user expiring at any time, even before the Act came into force, was capable of giving rise to a deemed dedication of a public highway under it and a period of user ending in 1931 could be relied on when the status of the way had to be decided in 1954. User by local inhabitants for this purpose constitutes user by the public. Certain words in section 1(6) of the Act of 1932 have been taken from the similar words of section 4 of the Act of 1832.
Denning LJ said: ‘I think that in order for the right of the public to have been ‘brought into question’, the landowner must challenge it by some means sufficient to bring it home to the public that he is challenging their right to use the way, so that they may be apprised of the challenge and have a reasonable opportunity of meeting it. The landowner can challenge their right, for instance, by putting a barrier across the path or putting up a notice forbidding the public to use the path. When he does so, the public may meet the challenge. Some village Hampden may push down the barrier or tear down the notice: the local council may bring an action in the name of the Attorney-General against the landowner in the courts claiming that there is a public right of way: or no one may do anything, in which case the acquiescence of the public tends to show that they have no right of way.
But whatever the public do, whether they oppose the landowner’s action or not, their right is ‘brought into question’ as soon as the landowner puts up a notice or in some other way makes it clear to the public that he is challenging their right to use the way.
Applying this test, I ask myself: when did the landowner here make it clear to the public that he was challenging their right to use the way? Quarter sessions held that he did so in 1931, when he objected to the use of the path by persons who were not local residents. We do not know what evidence was before them on that point. If the landowner merely turned back one stranger on an isolated occasion, that would not, I think, be sufficient to make it clear to ‘the public’ that they had no right to use it. He ought at least to make it clear to the villagers of Bossington, Houghton and Horsebridge. They were the members of the public most concerned to assert the right, because they were the persons who used the path. They knew – better than the landowner himself – how long they had used it. They were the persons to tell. It was no good the landowner speaking to a stranger who would know nothing of the public right and would not be concerned to assert it . . I think we ought to assume that quarter sessions had sufficient evidence before them to support their finding. We ought to assume that in 1931 when the landowner turned back strangers, he did it in so open and notorious a fashion that it was made clear, not only to strangers, that they had no right to use the path, but also to local residents, that they only used it by tolerance of the owner.’
Lord Denning discussed what had to be shown to evidence no intention to dedicate land as a public right of way: ‘In this connection I would also mention the finding of quarter sessions that in and from 1931 the landowner, by turning off strangers, showed an intention not to dedicate the path as a highway for the use of members of the public at large. This raises the same point. In my opinion a landowner cannot escape the effect of 20 years’ prescription by saying that, locked in his own mind, he had no intention to dedicate. In order for there to be ‘sufficient evidence that there was no intention’ to dedicate the way, there must be evidence of some overt acts on the part of the landowner such as to show the public at large – the public who used the path, in this case the villagers – that he had no intention to dedicate. He must, in Lord Blackburn’s words, take steps to disabuse those persons of any belief that there was a public right: see Mann v Brodie (1885) 10 App Cas 378, 386. Such evidence may consist, as in the leading case of Poole v Huskinson (1843) 11 M and W 827, of notices or a barrier: or the common method of closing the way one day a year. That was not done here; but we must assume that the landowner turned off strangers in so open and notorious a fashion that it was clear to everyone that he was asserting that the public had no right to use it. On that footing there was sufficient evidence to show that there was no intention to dedicate.’
and: ‘In my opinion a landowner cannot escape the effect of 20 years’ prescription by saying that, locked in his own mind, he had no intention to dedicate; or by telling a stranger to the locality (who had no reason to dispute it) that he had no intention to dedicate. In order for there to be ‘sufficient evidence that there was no intention’ to dedicate the way, there must be evidence of some overt acts on the part of the landowner such as to show the public at large — the public who used the path, in this case the villagers — that he had no intention to dedicate. He must, in Lord Blackburn’s words, take steps to disabuse those persons of any belief that there was a public right: see Mann v Brodie. Such evidence may consist, as in the leading case of Poole v Huskinson, of notices or a barrier; or the common method of closing the way one day a year. That was not done here; but we must assume that the landowner turned off strangers in so open and notorious a fashion that it was clear to everyone that he was asserting that the public had no right to use it. On this footing there was sufficient evidence to show that there was no intention to dedicate.’

Lord Goddard CJ, Denning LJ, Birkett LJ
[1956] 2 QB 439, [1956] 2 All ER 843
Rights of Way Act 1932
England and Wales
Cited by:
CitedOxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
CitedAttorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
CitedGodmanchester Town Council, Regina (on the Application Of) v Secretary of State for the Environment Food and Rural Affairs CA 19-Dec-2005
The court considered whether a pathway had become a public highway.
Held: ‘The main question for the Court is whether sufficiency of evidence of an intention not to dedicate necessary to satisfy the proviso requires, as a matter of law, that . .
CitedSecretary of State for the Environment v Beresford Trustees CA 31-Jul-1996
Hobhouse LJ, adopted at least part of Denning LJ’s approach in Fairey, holding that the absence of intention to dedicate had to be ‘objectively established by overt acts of the landowner’, and that ‘This is not a subjective test. The absence of . .
ConfirmedGodmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
CitedRegina v Secretary of State for the Environment, ex parte Cowell CA 1993
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 . .
CriticisedRegina v Secretary of State for Environment ex parte Billson Admn 16-Feb-1998
A deed granting access to a common in accordance with the section included access by horseback as well as by foot. The court upheld the Inspector’s decision that the 20-year user of the land relied upon by the applicant for the modification was not . .
ApprovedRegina v Secretary of State for Environment, Transport and Regions ex parte Dorset County Council Admn 22-Jun-1999
The court was asked to review a decision not to confirm a public right of way. The court considered whether the landowner had to show some overt act as evidence of his lack of intention to dedicate the land. Dyson J said: ‘On the face of it, the . .
CitedFortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
CitedRegina v Nicholson and Another, Secretary of State for Environment and others Admn 20-Dec-1996
N objected to the reclassification of a public footpath over his farm as a byway open to all traffic, saying that there had been insufficient evidence to establish a dedication at common law.
Held: N’s appeal failed. ‘A track can become a . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 02 November 2021; Ref: scu.192181

Bradley and Another v Heslin and Another: ChD 9 Oct 2014

The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he padlocked the gate open. At various time over the history of the gate it had been left constantly open, and mostly closed. Then, after a burglary, the police advised B to keep it closed. The parties had discussed an electronic gate. One gate post was built on the other neighbour’s land.
Held: The post had now been acquired by adverse possession.
Norris J said: ‘Where there is a right of way and it is gated by the owner of the servient tenement it will frequently be the case that the application of the principles set out in Pettey v Parsons and the approach suggested . . in BandQ plc v Liverpool and Lancashire Properties . . will lead to an injunction ordering the removal of the gate, unless some means of reducing the inconvenience to something less than substantial can be found.
If the gates are closed and the Heslins or their visitors are coming home then the Heslins have to approach the entrance slowly and, if they see the gates shut, either (a) park the car at the kerbside (perhaps turning off the engine and locking up if there is a sole occupant in the car), get out, walk up the pavement or across the road, open the gates, return to the car and then drive through; or (b) park the car nose up to the gates, with the length of the car crossing the pavement and protruding into the road and into the path of the traffic, get out, open the gates, return and drive through. If the Heslins are leaving home then they can simply park on the driveway, leaving the engine running, whilst someone gets out to open the gates, and then drive through. It is one thing to do this on a summer evening: and another to do it in the depths of winter or during a downpour. Whilst the Heslins dramatised the exercise I have no doubt that if the gates were closed whenever they wanted to pass through them, then they would be seriously inconvenienced, as would their predecessors in title have been.’

Norris J
[2014] EWHC 3267 (Ch)
Bailii
England and Wales
Citing:
CitedPettey v Parsons CA 1914
Mr Parsons (the defendant) owned a parcel of land on the junction of two roads in Bournemouth, called Charminster Road and Alma Road. In the middle of the parcel there was a footpath which ran from Charminster Road westwards to a private road which . .
CitedNeilson v Poole ChD 1969
Significance of Boundary agreements
The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .
CitedB and Q Plc v Liverpool and Lancashire Properties Ltd ChD 26-Jul-2000
The dominant owner wished to deal with delivery vehicles in a manner where they were left parked awaiting emptying. The servient owner (a lessee) wanted to construct buildings over a large part of the land. The servient owner objected.
Held: . .
CitedJoyce v Rigolli CA 2-Feb-2004
An agreement to resolve a boundary dispute does not need to comply with formalities of the Act.
Sir Martin Nourse said: ‘The agreement between the parties served merely to demarcate the boundary between their respective properties. It had not . .
CitedDrewell v Towler 4-Jun-1832
In trespass for cutting lines of the plaintiff and throwing down linen thereon hanging ; defendant pleaded, that he was possessed of a close, and because the linen was wrongfully in and upon the close he removed it. Replication, that J. G. being . .
CitedSuffield v Brown 15-Jan-1864
To imply a grant or reservation of an easement as arising upon the disposition of one of two adjoining tenements by the owner of both, where the easement had no legal existence anterior to the unity of possession and is not one of necessity, is a . .
CitedMaggs (T/A BM Builders) v Marsh and Another CA 7-Jul-2006
. .
CitedAli v Lane and Another CA 21-Nov-2006
The parties disputed the boundary between their neighbouring plots of land.
Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it . .
CitedThorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 November 2021; Ref: scu.537536

Sporrong and Lonnroth v Sweden: ECHR 23 Sep 1982

Balance of Interests in peaceful enjoyment claim

(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is general and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The Court further observed that, before inquiring whether the first general rule has been complied with, it must determine whether the last two are applicable. The three rules are not distinct in the sense of being unconnected. The second and third are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule.
The search for the striking of a fair balance ‘between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’ is inherent in the whole of the Convention.
ECHR Judgment (Merits) – Violation of P1-1; Violation of Art. 6-1; No violation of Art. 14+P1-1; Not necessary to examine Art. 17+P1-1, 18+P1-1 and 13; Just satisfaction reserved.

Wiarda, Zekia, Cremona, Vilhjalsson
7152/75, [1983] 5 EHRR 35, [1982] ECHR 5, 7151/75
Worldlii
European Convention on Human Rights P1-1
Human Rights
Citing:
See alsoSporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .

Cited by:
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
See alsoSporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
CitedRegina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
CitedSamaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
DistinguishedAllan Jacobsson v Sweden ECHR 25-Oct-1989
‘According to the Court’s case law, this provision comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property; the . .
CitedClingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
CitedWeir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
CitedBaiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
CitedTrent Strategic Health Authority v Jain and Another HL 21-Jan-2009
The claimants’ nursing home business had been effectively destroyed by the actions of the Authority which had applied to revoke their licence without them being given notice and opportunity to reply. They succeeded on appeal, but the business was by . .
CitedBank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
CitedAmbrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
CitedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedBarnes (As Former Court Appointed Receiver) v The Eastenders Group and Another SC 8-May-2014
Costs of Wrongly Appointed Receiver
‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as . .
CitedSalvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
CitedDepalle v France ECHR 29-Mar-2010
Grand Chamber
The Court summarised the effect of Sporrong: ‘The Court reiterates that, according to its case-law, Article 1 of Protocol No 1, which guarantees in substance the right of property, comprises three distinct rules (see, inter alia, . .
CitedCusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Land, Planning

Leading Case

Updated: 01 November 2021; Ref: scu.164907

Evans v Wimbledon and Putney Commons Conservators and Others: Admn 8 Nov 2013

The claimant owned property by Putney Lower Common. He objected to a proposal to develop further neighbouring land, and in particular the grant of access over the common to the proposed development.
Held: Housden must be applied, and ‘Of particular importance in the context of this case is the provision within section 39 which empowers the Defendant ‘to make and maintain such roads and ways as may be in their judgment necessary or proper’. Given the approach to interpretation spelled out above I am satisfied that it is open to the Defendant to create a means of access for the benefit of an area of land adjoining the common provided the means of access so created does not interfere with the ability of members of the public to continue to enjoy the part of the common across which the access is created and provided that the creation of the means of access is consistent with the duties of the Defendant and the overall objectives of the Act. ‘

Wyn Williams J
[2013] EWHC 3411 (Admin)
Bailii
Wimbledon and Putney Commons Act 1871
England and Wales
Citing:
AppliedHousden and Another v The Conservators of Wimbledon and Putney Commons CA 18-Mar-2008
The claimants sought to register a right of way over the common by virtue of use over forty years. The defendants denied that they were able to grant an easement inder the 1871 Act, and that therefore no claim could be laid under prescription.
Land

Updated: 01 November 2021; Ref: scu.517472

Sheikh and Another Re: Part of Former Fletcher Hospital: UTLC 14 Apr 2011

UTLC RESTRICTIVE COVENANT – discharge or modification – former hospital – covenant relating to small part of hospital building and other land prohibiting erection of any buildings within 20 feet of adjoining footpath – application to discharge or to modify to permit erection of two flats as part of proposed refurbishment of entire hospital to form 21 flats and 4 houses – whether restriction obsolete – whether restriction secured practical benefits of substantial value or advantage to objector the owner of neighbouring woodland – whether proposed discharge or modification would cause injury to objector – held covenant not obsolete but grounds (aa) and (c) made out – application for discharge refused, application for modification granted – Law of Property Act 1925 s84(1)(a), (aa) and (c).

N J Rose
[2011] UKUT 141 (LC)
Bailii
Law of Property Act 1925 84(1)(a)
England and Wales

Land

Updated: 01 November 2021; Ref: scu.440784

Harris and Another, Regina (on The Application of) v Broads Authority: Admn 12 Apr 2016

The Claimants say this case raises an important legal issue. ‘Can a public body which in law is not a National Park, represent itself (and allow itself to be represented) as a National Park and thereby to enjoy the benefits of National Park status despite the fact that that authority has decided to cease to seek to become a National Park inter alia because it does not wish to be subject to the legal duties imposed on National Parks and National Park Authorities?’
Held: The claim failed. The phrase ‘National Park’ had come to be an ordinary part of the English language describing an area of countryside, usually one important for its natural beauty, wildlife and recreation. The use of the phrase ‘national park’ was not exclusive to the statutory code for National Parks. The relevant legislation had no legal monopoly over the use of the term ‘national park’, whether capitalised or not.
‘, even if the view were to be taken that, as a matter of fairness, the Authority ought to have consulted on a proposal not to pursue ‘the long-term vision’ in the Broads Plan, it is plain that relief should be refused under section 31(2A). The only purpose which the Claimants suggested for requiring such consultation to have taken place is that consultees could have argued for the adoption of the Sandford Principle either now or in the future.’

Holgate J
[2016] EWHC 799 (Admin), [2016] WLR(D) 180, [2017] 1 WLR 567
Bailii, WLRD
National Parks and Access to the Countryside Act 1949
England and Wales

Administrative, Land, Planning

Updated: 02 November 2021; Ref: scu.562131

Miller v Jackson: CA 6 Apr 1977

The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of cricket balls landing in their gardens. The defendant appealed.
Held: A factor to be taken into account was that the plaintiffs had purchased their properties knowing of the club. That could constitute the exceptional circumstances allowing the court to use its discretion not to award an injunction.
Lord Denning MR, dissenting, said: ‘In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short . . [y]et now after these 70 years a judge of the High Court has ordered that they must not play there anymore . . [h]e has done it at the instance of a newcomer who is no lover of cricket.
This newcomer has built . . a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket.’ If the injunction were upheld, cricket would cease in the village and ‘the young men will turn to other things . .’ The public interest in the playing of cricket should prevail over the individual interests of the householders, and, instead of the injunction, he awarded andpound;400 for past and future inconvenience. He went on to answer with a resounding no his own rhetorical (in both senses of the word) question whether this was ‘all to be rendered useless to them by the thoughtless and selfish act of an estate developer in building right up to the edge of it?’
Geoffrey Lane LJ (with whom Cumming-Bruce LJ agreed) concluded that the claim in nuisance was made out. He accepted, albeit with some regret, that it was not for the Court of Appeal ‘to alter a rule which has stood for so long’, namely ‘that it is no answer to a claim in nuisance for the defendant to show that the plaintiff brought the trouble on his own head by building or coming to live in a house so close to the defendant’s premises that he would inevitably be affected by the defendant’s activities, where no one had been affected previously’

Geoffrey Lane, Cumming Bruce LJJ, Denning MR
[1977] 1 QB 966, [1977] 3 All ER 338, [1977] EWCA Civ 6
Bailii
Chancery Amendment Act 1858 (Lord Cairns’ Act)
England and Wales
Citing:
CitedImperial Gas Light and Coke Company v Broadbent HL 4-Aug-1859
If a Plaintiff applies for an injunction in respect of a violation of a common law right, and the existence of that right, or the fact of its violation is denied, he must establish his right at law, but having done that, he is, except under special . .
CitedRylands v Fletcher CEC 1865
Mr Fletcher’s Lancashire coal mine was flooded by the water from Mr Rylands’ mill reservoir in 1860-61.
Held: Mr Rylands was responsible. Blackburn J said: ‘We think that the true rule of law is, that the person who for his own purposes brings . .
CitedSturges v Bridgman CA 1879
The character of the neighbourhood in which the plaintiff lives should, for the law of nuisance, include established features: ‘whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the . .
CitedShelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
CitedBrowne v Flower 1911
With regard to the landlord’s covenant for quiet enjoyment, Parker J said: ‘to constitute a breach of such a covenant there must be some physical interference with the enjoyment of the demised premises, and that a mere interference with the comfort . .
CitedSedleigh-Denfield v O’Callaghan HL 24-Jun-1940
Occupier Responsible for Nuisance in adopting it
A trespasser laid a drain along a ditch on the defendant’s land. Later the defendants came to use the drain themselves. A grate was misplaced by them so that in a heavy rainstorm, it became clogged with leaves, and water flowed over into the . .
CitedBolton v Stone HL 10-May-1951
The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence.
Held: When looking at the duty of care the court should ask whether the risk was not so remote . .
CitedLatimer v AEC Limited HL 25-Jun-1953
The Appellant had recovered damages for injuries which he alleged had been the result of a failure on the part of the Respondents in their statutory duty to maintain one of the gangways in their works in an efficient state. He slipped on a factory . .
CitedOverseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) PC 18-Jan-1961
Foreseeability Standard to Establish Negligence
Complaint was made that oil had been discharged into Sydney Harbour causing damage. The court differentiated damage by fire from other types of physical damage to property for the purposes of liability in tort, saying ‘We have come back to the plain . .
CitedLetang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
CitedGoldman v Hargrave PC 13-Jun-1966
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would . .

Cited by:
CitedWorld Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Incorporated v World Wrestling Federation Entertainment Incorporated – Intervener Jakks Pacific Llc CA 27-Mar-2003
. .
DoubtedKennaway v Thompson CA 30-Apr-1980
The plaintiff’s property adjoined the defendant’s boating lake over which the defendant had, over several years, come to run more and more motor boat sports events. The trial judge had found that the noise created by the racing was an actionable . .
CitedSmithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
CitedVarious Claimants v The Catholic Child Welfare Society and Others CA 26-Oct-2010
Child sexual abuse was alleged by 150 claimants against staff members of a community home with teachers supplied by the defendants. The court had asked whether they had vicarious liability for the acts of their staff, and now whether the board of . .
CitedCoventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .

Lists of cited by and citing cases may be incomplete.

Land, Nuisance, Negligence

Leading Case

Updated: 02 November 2021; Ref: scu.180311

Pickering v Rudd: KBD 20 Jun 1815

Trespass into Air Space

The plaintiff had erected a board which extended over into his neighbour’s garden. The neighbour cut that down and a tree grown against his wall.
Held: Lord Ellenborough said: ‘I do not think it is a trespass to interfere with the column of air superincumbent on the close.’ and ‘if this board overhanging the plaintiff’s garden be a trespass, it would follow that an aeronaut is liable to an action of trespass quare clausum fregit, at the suit of the occupier of every field over which his balloon passes in the course of his voyage. Whether the action may be maintained cannot depend upon the length of time for which the superincumbent air is invaded. If any damage arises from the object which overhangs the close, the remedy is by an action on the case. Here the verdict depends upon the new assignment of excess in cutting down the tree.’

Lord Ellenborough
[1815] EWHC KB J43, (1815) 4 Camp 219, [1815] 171 ER 70, [1815] EngR 883, (1815) 1 Stark 56, (1815) 171 ER 400 (B), [1815] EngR 884, (1815) 171 ER 70
Bailii, Commonlii, Commonlii
England and Wales
Cited by:
CitedBernstein of Leigh (Baron) v Skyview and General Ltd (Summary) QBD 9-Feb-1977
The plaintiff complained that the defendant had flown over his and neighbouring properties and taken aerial photographs, and said that this was a gross invasion of his privacy, and that the defendant had invaded his airspace to do so. The plaintiff . .
CitedStar Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Leading Case

Updated: 02 November 2021; Ref: scu.248380

Schmidt v Schmidt: ECJ 16 Nov 2016

Avoidance of gift of land for lack of capacity

ECJ Judgment – Reference for a preliminary ruling – Area of freedom, security and justice – Regulation (EU) No 1215/2012 – Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Scope – First subparagraph of Article 24(1) – Exclusive jurisdiction in matters relating to rights in rem in immovable property – Article 7(1)(a) – Special jurisdiction in matters relating to a contract – Action seeking the avoidance of a contract of gift of immovable property and the removal of an entry in the land register evidencing a right of ownership

ECLI:EU:C:2016:881, [2016] EUECJ C-417/15, [2016] WLR(D) 607
Bailii, WLRD
Regulation (EU) No 1215/2012
European

Land, Health

Updated: 01 November 2021; Ref: scu.571775

Dillwyn v Llewelyn: ChD 12 Jul 1862

The father thought he had given his younger son land in Wales, in signing a memorandum and presenting it to him ‘for the purpose of furnishing himself with a dwelling-house’. The memorandum was not by deed. The son built his home on the land. When the father died, the elder son disputed his brother’s title.
Held: The Master of the Rolls said younger son was entitled to a life interest. Lord Westbury LC allowed the younger son’s appeal, saying: ‘About the rules of the Court there can be no controversy. A voluntary agreement will not be completed or assisted by a Court of Equity, in cases of mere gift. If anything be wanting to complete the title of the donee, a Court of Equity will not assist him in obtaining it; for a mere donee can have no right to claim more than he has received. But the subsequent acts of the donor may give the donee that right or ground of claim which he did not acquire from the original gift . . so if A puts B in possession of a piece of land, and tells him, ‘I give it to you that you may build a house on it,’ and B on the strength of that promise, with the knowledge of A, expends a large sum of money in building a house accordingly, I cannot doubt that the donee acquires a right from the subsequent transaction to call on the donor to perform that contract and complete the imperfect donation which was made. The case is somewhat analogous to that of verbal agreement not binding originally for the want of the memorandum in writing signed by the party to be charged, but which becomes binding by virtue of the subsequent part performance.’ The Lord Chancellor awarded the younger son the fee simple since ‘no one builds a house for his own life only.’

The Lord Chancellor Lord Westbury
[1862] EWHC Ch J67, [1862] 45 ER 1284, (1862) 4 De GF and J 517, [1862] EngR 908, (1862) 4 De G F and J 517, (1862) 45 ER 1285
Bailii, Commonlii
Cited by:
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .

Lists of cited by and citing cases may be incomplete.

Land, Equity, Estoppel

Leading Case

Updated: 01 November 2021; Ref: scu.245427

Alchemy Estates Ltd v Astor and Another: ChD 5 Nov 2008

The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed assignees set out to enfranchise the lease under the 1967 Act as envisaged by the contract. The notice proved defective and after difficulties with the licence to assign, the purchaser purported to rescind (but offering a reduced price).
Held: The purchaser was not disentitled to rescind for failure to apply for the licence to assign, since that duty fell on the sellers under the standard conditions. It had however failed to provide accounts as requested by the landlord. They had been provided later, and the question of whether they were in breach of the contract was to be asked not at the time fixed or completion but at the time when the notice to rescind was given. The standard conditions provided for the possibility that the landlord’s consent might not have been obtained before the date fixed for completion, and apportioned risk between the parties in contuing to act on the basis of the contract’s continued existence. This in turn implied a limitation on the freedom to rescind. The purchasers had not acted promptly as required, and ‘An equitable approach to the exercise of rights between the parties contained in contracts for the sale of land has been established for a very long time.’

Sales J
[2008] EWHC 2675 (Ch)
Bailii, Times
Leasehold Reform Act 1967
England and Wales
Citing:
CitedHomburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
CitedRe Hewitt’s Contract 1963
The interpretation and effect of standard conditions governing the sale of land are informed by the background rules of equity governing the operation of contracts for the sale of land. . .
CitedICI Chemicals and Polymers Ltd v TTE Training Ltd CA 13-Jun-2007
The Defendant had applied for summary judgment under CPR Part 24. One argument was a short point of construction. The Judge suggested the parties agree that he should decide the point as a preliminary issue. They were unwilling so he proceeded on . .
CitedBowman v Hyland 1878
A vendor’s right to rescind a contract for the sale of land on receipt of a requisition was not to be exercised for reasons unconnected with the contract. . .
CitedSmith v Wallace 1895
Romer J said that a vendor of land wanting to exercise the right of rescission given him by the relevant contract term must do so ‘fairly, and to determine promptly whether he [will] exercise the power or not. He [is] not entitled to take advantage . .
CitedAubergine Enterprises Limited v Lakewood International Limited CA 26-Feb-2002
A sought confirmation that it had successfully rescinded a contract for the purchase of a leasehold property from L. Either party was to be able to rescind, if consent to the assignment had not obtained before three days before completion. There . .
CitedSelkirk v Romar Investments Ltd PC 1963
A vendor of land may properly only rescind a contract on receipt of requisitions for reasons associated with the contract. . .
CitedSt Leonard’s Shoreditch Vestry v Hughes 1864
The vendor of land is only allowed a reasonable time within which to make his decision whether to rescind or not in reliance on a contractual term providing for this right where requisitions have been raised which he cannot fulfil. . .
CitedDedman v British Building and Engineering Appliances CA 1973
The claimant sought to bring his claim under a provision which required a complaint to the industrial tribunal to be made within four weeks of the dismissal unless the employment tribunal was satisfied that this was not ‘practicable’. He did not . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 01 November 2021; Ref: scu.277552

New Windsor Corporation v Mellor: CA 1975

The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval times and had later been leased for grazing subject to the recreational rights of the inhabitants. The plaintiff sought to deny the rights. The Commons Commissioner and Queens Bench upheld the registration.
Held: Tthe inhabitants indeed had a customary class b right to use the two-acre piece of land for sport and recreation. The land had been used since 1651 by the burgesses under various leases, allowing all to have access and for shooting and to maintain water butts. Improvements had been mde by the inhabitants in 1809. There was clearly a customary right to use the land for recreational purposes. That was a reasonable use and the registration as a village green was good. It may not be clear how the land could be used, but it could clearly not be used in a way inconsistent with the customary uses as wanted by the plaintiff. The period of 20 years in the Act referred to the 20 years before its passing.
Lord Denning considered the ‘one locality’ rule, and criticised the case of Edwards v Jenkins. Lord Denning MR said: ‘To be good, too, a custom must be certain. So, when all sorts of people came and played cricket on a field, it was held that the custom was good if it applied only to the inhabitants of the village and their guests, but not if it applied to all the world at large: see Fitch v. Rawling (1795) 2 Hy.B1. 394. In Edwards v. Jenkins [1896] 1 Ch. 308 Kekewich J. held that a custom for the inhabitants of three parishes to play on a field in one of these parishes was bad: but I do not think this is correct. So long as the locality is certain, that is enough. It is obvious that the custom may virtually deprive the owner of the land of any benefit of it: because he cannot use it in any way so as to hinder the villagers in their pastimes. But, nevertheless, the custom is good. It was so held where villagers proved a custom to erect a maypole and dance around it ‘and otherwise enjoy any lawful and innocent recreation at any times in the year’: see Hall v. Nottingham (1875) 1 Ex D. 1, 2′
Brightman LJ said this about the locality point: ‘I should prefer to reserve my opinion as to whether Edwards v. Jenkins [1896] 1 Ch. 308 is good law. There is some authority for supposing that a customary right cannot normally exist over land in one locality for the benefit of the inhabitants of a different locality. Nevertheless, were it relevant to this appeal, I would feel it difficult to understand why such a right cannot exist over land in one locality for the benefit of the inhabitants of that and one or more other localities, which was in effect the right unsuccessfully claimed in Edwards v. Jenkins. For myself, I express no concluded view’.

Denning MR L, Browne LJ, Brightman J
[1975] 3 All ER 44, [1975] 3 WLR 25, [1975] Ch 380
Commons Registration Act 1965 3
England and Wales
Citing:
CriticisedEdwards v Jenkins 1896
Application was made to register a customary right over land.
Held: The ‘locality rule’ applied. The inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land . .

Cited by:
CitedG and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
CitedOxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
CitedRegina v Norfolk County Council ex parte Perry Admn 19-Dec-1996
The period of twenty years required to establish a common under the Act was the period up to the date of the application. . .
CitedOxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
CitedPaddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
CitedNewhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 01 November 2021; Ref: scu.183166

Rains v Buxton: 1880

rains_buxtonChD1880

Fry J said: ‘The difference between dispossession and the discontinuance of possession might be expressed in this way: the one is where a person comes in and drives out the others from possession, the other case is where the person in possession goes out and is followed in by others.’ A defendant to a claim for adverse possession does not escape it by proving that he had not known of the acts relied upon against him nor by proving that that omission was not attributable to some negligence or default on his part.

Fry J
[1880] 14 ChD 537
Cited by:
CitedBuckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 01 November 2021; Ref: scu.259703

Crabb v Arun District Council: CA 23 Jul 1975

The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff should have a right of access without payment.
Scarman LJ said: ‘There being no grant, no enforceable contract, no licence, I would analyse the minimum equity to do justice to the plaintiff as a right either to an easement or to a licence on terms to be agreed. I do not think it is necessary to go further than that. . . If there is no agreement as to terms, if agreement fails to be obtained, the court can, in my judgment, and must, determine in these proceedings upon what terms the plaintiff should be put to enable him to have the benefit of the equitable right which he is held to have.’
The court should approach the task cautiously to achieve ‘the minimum equity to do justice to the plaintiff.’

Denning MR, Lawton LJ, Scarman LJ
[1976] Ch 179, [1975] 3 All ER 865, [1975] EWCA Civ 7
Bailii
England and Wales
Citing:
CriticisedRamsden v Dyson HL 1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .

Cited by:
CitedJennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
CitedWilson v Truelove ChD 25-Mar-2003
The claimants requested a declaration that an option to repurchase land was void under the 1964 Act.
Held: The option to repurchase land was prima facie void. The right arose on the coming into existence of the agreement, or at the latest on . .
CitedSledmore v Dalby CA 8-Feb-1996
The plaintiff sought possession of a house. She had owned it with her late husband. The defendant lived in and had done much work on the house, but the deceased left it all to the plaintiff and the defendant’s wife who had since also died. She . .
ApprovedOrgee v Orgee CA 5-Nov-1997
The defendant had claimed an agricultural tenancy under a proprietary estoppel. His claim succeeded at first instance. The judge found it had been clearly understood that he would continue to farm the land on the basis of an agricultural tenancy, as . .
CitedParker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
CitedWillis v Hoare 1999
Auld LJ said of Crabb: there ‘could be no doubt as to the nature and extent of the remedy required to give effect to [the] equity’. Of JT Developments ‘the nature and terms of the equity were readily identifiable’. Auld LJ said: ‘There may be . .
CitedYaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
CitedGrant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
CitedWormall v Wormall CA 25-Nov-2004
The father had allowed his daughter to run her business from the family farm. The mother and father came to divorce, and the father required vacanat possession of the farm so that he could sell it to satisfy his liabilities in the ancillary relief . .
CitedStrover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
CitedVan Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedThe Picture Warehouse Ltd v Cornhill Investments Ltd QBD 23-Jan-2008
The tenant appealed against a decision that provision for parking should not be included in the new tenancy granted to him under the Act. The original lease had been intended to be varied to move the tenant to allow some rebuilding, and new parking . .
CitedLondon Borough of Bexley v Maison Maurice Ltd ChD 15-Dec-2006
The council had taken land by compulsory purchase in order to construct a dual carriageway. It then claimed that it had left undedicated a strip .5 metre wide as a ransom strip to prevent the defendant restoring access to the road.
Held: The . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .

Lists of cited by and citing cases may be incomplete.

Equity, Land

Leading Case

Updated: 01 November 2021; Ref: scu.183817

Swales v Cox: CA 1981

Police officers had entered a house in pursuit of a suspected burglar.
Held: It is a condition of any lawful breaking of premises that the person seeking entry has demanded and been refused entry by the occupier.
Donaldson LJ said: ‘it is conceded in this case that (the trial judge) correctly analysed the position at common law . . as follows:
that there was power of entry into premises at common law and, if necessary, power to break doors to do so in four cases, but in four cases only; that is to say by a constable or a citizen in order to prevent murder; by a constable or a citizen if a felony had in fact been committed and the felon had been followed to a house; by a constable or a citizen
if a felony was about to be committed, and would be committed, unless prevented; and by a constable following an offender running away from an affray. In any other circumstances there was no power to enter premises without a warrant, and, even in the four cases where there was power not only to enter but to break in order to do so, it was an essential pre-condition that there should have been a demand and refusal by the occupier to allow entry before the doors could be broken.’

Donaldson LJ
[1981] QB 849, [1981] 1 All ER 1115, [1981] 2 WLR 814
England and Wales
Cited by:
CitedRegina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
CitedLunt v Director of Public Prosecutions QBD 1993
The defendant had been in a road traffic accident. The police came to his house to investigate the accident, but he refused to unlock the door to allow them entry. Stating reliance on section 4 of the 1988 Act, the officers threatened to force . .

Lists of cited by and citing cases may be incomplete.

Police, Land, Torts – Other

Leading Case

Updated: 01 November 2021; Ref: scu.239968

Young v The Bristol Aeroplane Co Ltd: CA 28 Jul 1944

Court of Appeal must follow Own Decisions

The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered the circumstances in which it could depart from a previous decision of the same court, on the basis that the decision had been reached per incuriam because an applicable statute or rule had not been referred to.
Lord Greene MR said: ‘In considering the question whether or not this court is bound by its previous decisions and those of courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely, cases where this court finds itself confronted with one or more decisions of its own or of a court of co-ordinate jurisdiction which cover the question before it and there is no conflicting decision of this court or of a court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is where this court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this court comes to the conclusion that a previous decision was given per incuriam. In the second and third classes of case it is beyond question that the previous decision is open to examination. In the second class, the court is unquestionably entitled to choose between the two conflicting decisions. In the third class of case the court is merely giving effect to what it considers to have been a decision of the House of Lords by which it is bound. The fourth class requires more detailed examination and we will refer to it again later in this judgment.’
Lord Greene MR: ‘Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts.’

Lord Greene MR, Scott, MacKinnon, Luxmoore, Goddard and du Parcq LJJ
[1944] KB 718, 60 TLR 536, [1944] 2 All ER 293, (1945) 78 Ll L Rep 6, [1944] EWCA Civ 1
Hamlyn, Bailii, Bailii
England and Wales
Cited by:
CitedBakewell Management Ltd v Brandwood and Others ChD 21-Mar-2002
The claimant sought a declaration that he had acquired an easement over land by driving over it, over several years. The land owner denied the easement, saying that section 193 made the claimant’s activity a crime, and that, following Hanning, . .
CitedCassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
CitedRoland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
CitedSimpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .
CitedRegina v Gould CACD 1968
Diplock LJ said: ‘In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If upon due consideration . .
CitedFerrishurst Ltd v Wallcite Ltd CA 30-Nov-1998
A person in actual occupation of registered land at time of transfer can enforce his rights against the transferee. A sub-underlessee in occupation of part could enforce an option to purchase against the freeholder acquiring intermediate registered . .
AffirmedDavis v Johnson HL 2-Jan-1978
The court was asked to interpret the 1976 Act to see whether its protection extended to cohabitees as well as to wives. In doing so it had to look at practice in the Court of Appeal in having to follow precedent.
Held: The operation of the . .
CitedSorrell v Sorrell FD 29-Jul-2005
The parties contested ancillary relief on their divorce. The marriage had been very long, and the assets were very substantial. The husband contended that these assets represented an exceptional contribution on his part.
Held: In this case an . .
AppliedWilson v Chatterton CA 1946
The court considered the circumstances under which it could depart from its previous decision. Scott LJ said that it might be allowed on the basis of the earlier decision ‘being inconsistent with general principles laid down by the House of Lords . .
CitedWoodward v Abbey National Plc CA 22-Jun-2006
The claimant appealed refusal to award damages after an alleged failure to give a proper reference, saying that the decision in Fadipe could not stand with the later decision in Rhys-Harper. She said that she had suffered victimisation after making . .
CitedMiliangos v George Frank (Textiles) Ltd CA 1975
The court looked at what makes a case decided per incuriam: ‘a case is not decided per incuriam because counsel have not cited all the relevant authorities or referred to this or that rule of court or statutory provision.’ (Lord Denning MR) . .
CitedDesnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
CitedDepartment for Transport, Environment and the Regions v Mott Macdonald Ltd and others CA 27-Jul-2006
Claims arose from accidents caused by standing water on roadway surfaces after drains had not been cleared by the defendants over a long period of time. The Department appealed a decision giving it responsibility under a breach of statutory duty . .
CitedSmith v Leicestershire Health Authority CA 29-Jan-1998
The plaintiff appealed a finding that she had sufficient knowledge of her possible claim for medical negligence against the defendants, and that she was out of time. She had known of her condition, but said she had no sufficient reason to see that . .
CitedTan and Another v Sitkowski CA 1-Feb-2007
The tenant claimed Rent Act protection for his tenancy. He had been rehoused and began his tenancy in 1970 with the ground floor used as a shop, and the first floor as living accomodation. He later abandoned the business use. He appealed a finding . .
CitedSymbian Ltd v Comptroller General of Patents CA 8-Oct-2008
No Pattern Established to Patent Computer Systems
The Comptroller appealed against the decision in Chancery to grant a patent to the clamant for an invention which the comptroller said should have been excluded from protection under section 1(2) as a computer program. It was argued that the UK was . .
CitedRJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
CitedSingh v The Members of The Management Committe of The Bristol Sikh Temple and Others EAT 14-Feb-2012
EAT WORKING TIME REGULATIONS – Worker
NATIONAL MINIMUM WAGE ACT – Worker
The issue was whether the Priest at a Sikh Temple was a ‘worker’ within section 54(3)(b) of the National Minimum Wage Act 1998. . .
CitedKing, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
CitedWalsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
CitedBaxendale Ltd and Another v Revenue and Customs FTTTx 4-Jul-2013
FTTTx PROCEDURE – striking out of proceedings – whether appellants’ case had a reasonable prospect of succeeding – abuse of process – whether Court of Appeal decision in David Baxendale was per incuriam or . .
CitedMorelle Ltd v Wakeling CA 1955
The plaintiff asserted ownership of leasehold land. A similar situation had arisen in an earlier case befoe the Court of appeal, and the court was asked to decide that that case had been decided per incuriam.
Held: The per incuriam principle . .
CitedHenderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .
CitedWillers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .

Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.179844

Re Stirrup’s Contract: 1961

The parties disputed whether good title had been shown when an assent under seal had been used where a conveyance ordinarily should have been used.
Held: Good title had been shown. Though the law is concerned with substance rather than form, it would not be consistent with the orderly development of the common law if the court could, as a matter of construction, produce the result that it believed the parties to the contract wanted by rewriting the contract.
Wilberforce J said that a purchaser of land is entitled to be satisfied ‘that his vendor is seized of the estate which he is purporting to sell, in this case the fee simple, and that he is in a position, without the possibility of dispute or litigation, to pass that fee simple to the purchaser.’ and
‘Section 63 states that every conveyance is effectual to pass all the estate which the conveying party has or which is intended to be so passed; and if that is read in conjunction with the definition section, Section 205 (1) (ii), by which the expression ‘conveyance’ includes an assent, that produces the result that an assent, provided that it is under seal, is effective to pass whatever estate the conveying party has.
I would be reluctant to decide this case on the basis of a mechanical argument of that kind alone, but I think on the broad framework of the Act, provided that the sole form of requirement of being under seal is complied with, any document, since 1925, at any rate, is effective to pass a legal estate, provided that the intention so to pass it can be ascertained.
I therefore feel on both those branches of the argument that the vendor here is correct in saying that, although the document is described as an assent, and although admittedly the case was not one for which an assent should be used, yet, nevertheless, on the intention to be ascertained from it and having regard to the statutory provisions, it was perfectly effective to pass the fee simple to the purchaser, and I propose so to declare.’ and
Where the title shown is less than perfect, the question is whether the risk is ‘so remote or so shadowy as to be one to which no serious attention need be paid . . the test must always be, would the court, in an action for specific performance at the instance of the vendors, force a title containing the alleged defect upon a reluctant purchaser ?’

Wilberforce J
[1961] 1 WLR 449
Law of Property Act 1925 63 20(91)
Cited by:
CitedPW and Co v Milton Gate Investments Ltd (BT Property Ltd and another, Part 20 defendants) ChD 8-Aug-2003
The parties, head lessor and sub-lessess, had assumed that following Brown -v- Wilson the sub-lease would continue upon the determination of the head lease, and had overlooked Pennell which overruled Brown v Wilson. However the lease made express . .
CitedBarclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co CA 21-May-1998
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .
CitedHarbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .
CitedBarclays Bank Plc v Weeks Legg and Dean ChD 26-Feb-1996
The failure by a conveyancer to disclose a right of way either to his lay client or to the lender was not a breach of his undertaking to acquire a good and marketable title. The Solicitor had applied the money in accordance with the undertaking even . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Leading Case

Updated: 01 November 2021; Ref: scu.190576

Peacock and Another v Custins and Another: CA 14 Nov 2000

The conveyance of a field constituting the dominant land to the claimants was expressed to be subject to the benefit of a right of way over land owned by the defendants, enabling the claimants to reach the dominant land ‘at all times and for all purposes in connection with the use and enjoyment of the property hereby conveyed’. The purchaser came to farm the purchased field as one unit with another field, and sought a declaration that the right of way was for the benefit of both fields.
Held: In construing such a grant the court was concerned with the identity of the land, and purpose of the grant, not with the extent of its use. Nevertheless, the declaration sought to identify different land and must not be granted.
Schiemann LJ said: ‘where a court is being asked to declare whether the right to use a way comprises a right to use it to facilitate the cultivation of land other than the dominant tenement, the court is not concerned with any comparison between the amount of use made or to be made of the servient tenement and the amount of use made or that might lawfully be made within the scope of the grant. It is concerned with declaring the scope of the grant, having regard to its purposes and the identity of the dominant tenement. The authorities indicate that the burden on the owner of the servient tenement is not to be increased without his consent. But burden in this context does not refer to the number of journeys or the weight of the vehicles. Any use of the way is, in contemplation of law, a burden and one must ask whether the grantor agreed to the grantee making use of the way for that purpose all three judges (in Harris) were addressing not the question of additional user, but the different question: whether the white land was being used for purposes which were not merely adjuncts to the honest use of the pink land (the dominant tenement); or, rephrasing the same question, whether the way was being used for the purposes of the white land as well as the dominant tenement.
It is in our judgment clear that the grantor did not authorise the use of the way for the purpose of cultivating the blue land. This can not sensibly be described as ancillary to the cultivation of [Whiteacre].’

Schiemann, Mance LJJ, Smith J
Gazette 15-Dec-2000, Times 15-Dec-2000, [2000] EWCA Civ 1958, [2001] 2 All ER 827, [2002] 1 WLR 1815
Bailii
England and Wales
Citing:
AffirmedHarris v Flower CA 1904
The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way . .
CitedSkull And Another v Glenister And Others 1864
A right of way appurtenant to land passes to the tenant by a parol demise of the land, though nothiiig is said about it at the time of the demise. – A, having a right of way to D close, demised the close to B. The latter, being possessed of an . .
CitedInverugie Investments Ltd v Hackett PC 1995
The plaintiff was the lessee of 30 apartments within a hotel complex. The defendants ejected the plaintiff and for some years used the apartments as part of the hotel with an average occupancy rate of not more than 40%.
Held: The defendants . .
CitedStoke-on-Trent City Council v W and J Wass Ltd CA 1988
The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council . .

Cited by:
CitedSargeant and Another v Macepark (Whittlebury) Ltd ChD 5-Mar-2003
The servient owner granted a lease of easements to the dominant owner, to provide a means of access to the dominant land, and from the dominant land (an hotel) to the Silverstone racing circuit. Subsequently the hotel owner negotiated a more direct . .
CitedWall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 01 November 2021; Ref: scu.145437

Neilson v Poole: ChD 1969

Significance of Boundary agreements

The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where the land is situated and to prevent the plan from controlling the parcels in the body of the conveyance.’ The words ‘for the purpose of identification only more particularly delineated on the plan’ were a form of words that might ‘appear to the literalist to amalgamate conventional forms of expression and tend towards ‘a mutually stultifying’ conclusion. Nevertheless: ‘Certainly I do not think that they give the plan any predominance over the parcels.’
‘Now a boundary agreement may constitute a contract to convey land. The parties may agree that in return for a concession by A in one place, straightening the line of division, B will make a concession in another place; and the agreement may thus be one for the conveyance of land. But there is another type of boundary agreement. This does no more than identify on the ground what the documents describe in words or delineate on plans. Nothing is transferred, at any rate consciously; the agreement is to identify and not to convey. In such a case, I do not see how the agreement can be said to constitute a contract to convey land.
In general, I think that a boundary agreement will be presumed to fall into this latter category. ‘

Megarry J discussed the effect of the earlier oral settlement of the parties’ boundary dispute: ‘I must too bear in mind that a boundary agreement is in its nature an act of peace, quieting strife and averting litigation and so is to be favoured in the law. I also bear in mind that many boundary agreements are of the most informal nature.’ and ‘The law ought not to encourage people to be aggressive about their rights by a fear that in granting any indulgence they will be treated as having yielded up their rights. A man who puts in garden canes short of the point that he considers to be the true, although unmarked boundary, in order to serve as a warning to himself and others against any arguable trespass onto his neighbour’s land ought not to be treated as having thereby represented that the canes show the true boundary.’
And: ‘Now a boundary agreement may constitute a contract to convey land. The parties may agree that in return for a concession by A in one place, straightening the line of division, B will make a concession in another place; and the agreement may thus be one for the conveyance of land. But there is another type of boundary agreement. This does no more than identify on the ground what the documents describe in words or delineate on plans. Nothing is transferred, at any rate consciously; the agreement is to identify and not to convey. In such a case, I do not see how the agreement can be said to constitute a contract to convey land . . In general, I think that a boundary agreement will be presumed to fall into this latter category. In short, in my judgment, a boundary agreement is presumed not to convey land: the presumption may be rebutted, but unless it is, the agreement is not registerable; and to point to circumstances of doubt or uncertainty is not to rebut the presumption.’

Megarry J considered how parcels clauses were to be construed: ‘in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result. The prime function of a conveyance is to convey. As to any particular parcel of land, either the conveyance conveys it, or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed. The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were. Yet modern conveyances are all too often indefinite or contradictory in their parcels. In such circumstances, to reject any evidence afforded by what the common vendor has done in subsequent conveyances seems to me to require justification by some convincing ground of judicial policy; and I have heard none.’

Megarry J
[1969] 20 P and CR 909
England and Wales
Citing:
AppliedWatcham v Attorney-General of the East Africa Protectorate PC 1919
The Watchams held land along the bank of the Nairobi River. It had been conveyed to them by the Crown by a certificate under the East African Land Regulations. The certificate gave the area transferred as ’66 3/4 acres, or thereabouts’, but included . .

Cited by:
CitedAlan Wibberley Building Ltd v Insley CA 12-Nov-1997
Where adjoining fields are separated by a hedge and a ditch, who owns the ditch?
Held: The old presumption as to the location of a boundary based on the layout of hedges and ditches is irrelevant where the conveyance was by reference to an OS . .
CitedStephenson and Another v Johnson and Another CA 12-Jul-2000
There had been a dispute as to the correct boundary between two properties in North Yorkshire. The land had been in common ownership until 1973. The 1973 conveyance showed the boundary in a position which the claimants said was determinative. The . .
CitedDruce v Druce CA 11-Feb-2003
The parties disputed the extent of land conveyed. The conveyance described the plan as for identification purposes only but the decsription went on to say that it was ‘more particularly delineated on’.
Held: In the circumstances the plan would . .
ExplainedWigginton and Milner Ltd v Winster Engineering Ltd CA 7-Dec-1977
Various conveyances had dealt with land. By mistake, certain land was excluded from the plans.
Held: The plan had been included ‘for identification purposes only’, but that did not mean that the plan was to be disregarded. It could not . .
FollowedBurns and Burns v Morton CA 27-May-1999
The parties disputed the line of the boundary between their neighbouring properties.
Held: The appeal failed: ‘the conveyance in respect of each property refers to the wall between the properties as being a division or dividing wall. That . .
CitedFlack v Lanzante CA 28-Aug-2002
Renewed application for leave to appeal. Boundary dispute. Boundary agreement shown – leave refused. . .
CitedScarfe v Adams CA 1981
Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .
CitedAli v Lane and Another CA 21-Nov-2006
The parties disputed the boundary between their neighbouring plots of land.
Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it . .
CitedHawkes v Howe CA 29-Jul-2002
The parties were neighbours. One asserted that the other had trespassed in a building by 2.5 inches. The defendant appealed an award of damages. A garage had been built over the boundary by a previous occupier but by agreement. The new owner . .
CitedPiper and Another v Wakeford and Another CA 17-Dec-2008
The parties disputed the boundary between their land.
Held: The judge had been entitled to rely on the evidence he had accepted, and had been entitled to find on the factual basis asserted. . .
CitedPennock and Another v Hodgson CA 27-Jul-2010
In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
CitedACCO Properties Ltd v Severn and Another ChD 1-Apr-2011
The parties disputed the boundary between their respective plots.
Held: Simon Barker QC J set out (and then applied) the principles for resolving boundary lines: ‘1 Where, as in this case, the property in question is registered land, the file . .
CitedBradley and Another v Heslin and Another ChD 9-Oct-2014
The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 01 November 2021; Ref: scu.183680

London Borough of Haringey v Hines: CA 20 Oct 2010

The authority sought rescission of a lease granted to the defendant under the right to buy scheme, saying that she had misrepresented her occupation when applying. The tenant replied that no adequate evidence had been brought that she was not a secure tenant. The authority had set out several statements as to her occupation by her of a different property. It also argued that the grant had been void as ultra vires.
Held: The statements did not amount to a deceit in the way found, containing no direct assertion of the untruth claimed, and nor had the allegation been put to the appellant directly in cross examination. Mrs Hines’ appeal against the award of damages for deceit succeeded. The court below had declined toorder any rectification, and therefore associated claims as to the grant being ultra vires had no purpose. Any potential claim for innocent misrepresentation had not been pleaded or pursued at trial. The council had pushed singularly for fraudulent misrepresentation, and it was not now right to ask what migfht have happened if the trial had been conducted differently.

Pill, Rimer LJJ, Peter Smith J
[2010] EWCA Civ 1111
Bailii
Housing Act 1985 118, Misrepresentation Act 1967 2(1)
England and Wales
Citing:
CitedLondon Borough of Sutton v Swann 30-Nov-1985
The defendant had applied to buy his council property, but lost his secure tenancy before completion of the purchase.
Held: He had lost the right to buy the property. . .
CitedMuir Group Housing Association Ltd v Thornley and Another CA 25-Nov-1992
The tenant’s right to buy the property held under a secure tenancy was lost when, even after the start of the procedure for purchase, the Tenant had let out the house to another, and so ceased to be a secure tenant. . .
CitedMary Rushton, Michael Rushton v Worcester City Council CA 16-Mar-2001
The claimants had purchased the first tenant’s council property under the right to buy scheme. The council had failed to disclose facts about its condition which rendered it valueless, but now appealed against the award of damages for . .
CitedAbbey Forwarding Ltd v Hone and Others ChD 30-Jul-2010
. .
CitedVogon International Ltd v Serious Fraud Office CA 4-Feb-2004
The defendant appealed a finding in which the judge had inferred against it serious imputations where neither party had made such an allegation, and the defendant had not been given forewarning of such a finding.
Held: The judge had correctly . .
CitedRevenue and Customs v Dempster (T/A Boulevard) ChD 24-Jan-2008
The revenue wished to refuse a claim to set off input tax for two transactions involving the alleged purchase of software. They said the transactions were a sham.
Held: The revenue’s appeal failed.
Briggs J said: ‘the critical question . .
CitedDoyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 November 2021; Ref: scu.425354

Bain v Fothergill: HL 1874

The defendants intended to sell to the plaintiffs their leasehold interests in mining royalties, but were under a covenant not to sell without the consent of the lessors. A condition of the sale provided for ‘ the usual covenant for our protection as standing between you and our lessors’. A deposit was paid, but the lessors refused consent. The plaintiffs sought return of their deposit, their costs and expenses of investigating title, and for loss of bargain.
Held: The case fell within Flureau -v- Thornhill, and damages were limited to the recovery of the deposit and expenses of investigating title. ‘It is recognised on all hands that the purchaser is not to be held entitled to recover any loss on the bargain he may have made, if in effect it should turn out that the vendor is incapable of completing his contract in consequence of his defective title.

Hatherley L
(1874) LR 7 HL 158, 43 LJ Ex 243, 31 LT 387, 39 JP 228, 23 WR 261
England and Wales
Citing:
ApprovedFlureau v Thornhill 1746
A person who contracts to purchase land, but where the title is, without collusion, defective cannot claim for his loss of bargain. ‘These contracts are merely upon condition, frequently expressed, but always implied, that the vendor has good title. . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.183266

Yeoman’s Row Management Ltd and Another v Cobbe: HL 30 Jul 2008

The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding that Mrs Lisle-Mainwaring’s behaviour in repudiating, and seeking an improvement on, the core financial terms of the second agreement was unconscionable and sufficient to justify the creation of a ‘proprietary estoppel equity’. . But to leap from there to a conclusion that a proprietary estoppel case was made out was not justified.
Even without attempting to vary the terms of the agreement, the company could not have been obliged to go ahead: ‘Proprietary estoppel requires, in my opinion, clarity as to what it is that the object of the estoppel is to be estopped from denying, or asserting, and clarity as to the interest in the property in question that that denial, or assertion, would otherwise defeat. If these requirements are not recognised, proprietary estoppel will lose contact with its roots and risk becoming unprincipled and therefore unpredictable, if it has not already become so. ‘ The claimant was entitled to a quantum meruit payment for his services, and te value of that should represent the extent of the unjust enrichment obtained by the plaintiff.

Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance
[2008] UKHL 55, [2008] 35 EG 142, [2008] 31 EG 88, [2008] WTLR 1461, [2008] 1 WLR 1752
Bailii, Times, HL
Law of Property (Miscellaneous Provisions) Act 19892
England and Wales
Citing:
Appeal fromYeoman’s Row Management Ltd and Another v Cobbe CA 31-Jul-2006
The defendants orally agreed to sell the claimant a block of flats for andpound;12 million if he first obtained planning permission for it on terms as to a sharing of subsequent development profits. The claimant spent over andpound;100,000 and . .
At First InstanceYeoman’s Row Management Ltd v London Rent Assessment Committee Chairman QBD 25-Feb-2005
The parties agreed in principle that there would be an application for planning permission, and that if granted the land would be bought and the profits shared. Considerable work was undertaken and permission achieved, but the seller then sought to . .
CitedLaird v Birkenhead Railway Co 22-Nov-1859
The plaintiff applied to the defendant railway company for permission to construct and use a private branch line connecting with the railway company’s main line. Agreement was reached for the plaintiff to do so ‘on reasonable terms, which were to be . .
CitedAttorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd PC 1987
An agreement in principle was marked ‘subject to contract’. The Government would acquire some flats owned the plaintiff Group of companies in return for the Government granting, inter alia, a lease to the Group of some Crown lands. The Government . .
CitedMuschinski v Dodds 1985
(High Court of Australia) The idea of conscience is too vague a notion to found the principles of equity, it would open the door to ‘idiosyncratic notions of fairness and justice’ and ‘That property was acquired, in pursuance of the consensual . .
CitedTaylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .
CitedRamsden v Dyson HL 1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
CitedPlimmer v Mayor, Councillors and Citizens of the City of Wellington PC 1884
(New Zealand) Mr Plimmer had occupied land under a revocable licence from the Corporation’s predecessor-in-title and at their request had made extensive improvements to it. He sought compensation when the land was to be vested in the defendant. The . .
CitedInwards v Baker CA 13-Jan-1965
An indulgent father had encouraged his son to build a bungalow on his, the father’s, land. The son had done so in the expectation, encouraged by the father, that he would be permitted to remain in occupation.
Held: The court formulated the . .
CitedHoliday Inns Inc v Broadhead 1974
The parties negotiated for a lease, but never signed a contract. The plaintiff expended considerable sums to try to get planning, and once acquired it sought to buy the land, and claimed that Mr Broadhead had taken an unconscionable advantage, . .
CitedCrabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .
CitedBritish Steel Corporation v Cleveland Bridge and Engineering Co Ltd 1983
An ‘if contract’ is where one party makes an offer capable of acceptance on the basis that ‘if you do this for us, we will do that for you’. Often used in the construction industry.
Goff J said: ‘the question whether . . any contract has come . .
CitedPallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .
CitedTime Products Ltd v Combined English Stores 2-Dec-1974
The plaintiff and the defendant were each interested in buying a property and had agreed that one of them would make an offer, the other refraining from doing so, and that if the offer were to be accepted the purchaser would deal with the property . .
CitedWalton Stores (Interstate) Limited v Maher 1988
(High Court of Australia) It would be unconscionable for a party to stand by in silence when it must have known that the other party was proceeding on an assumption that they had a binding agreement. . .
CitedPridean Limited v Forest Taverns Limited; Hipwell and Marshall CA 28-Nov-1996
The claimant owned a public house. It set out with the defendant to to acquire the premises or to take a lease of them. The defendant went into occupation, and carried out works. Negotiations continued, but broke down over the form of protection to . .
CitedLondon and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
CitedBanner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
CitedKilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd and Another CA 16-Nov-2005
The defendant had brought in the claimant in order to assist in satisfying its own obligations under a lease. The joint venture was not recorded in a formal agreement. The appellant asserted that a constructive trust had been created. The judge had . .
CitedDann v Spurrier 1802
The tenant had carried out improvements to the property. It was uncertain whether the length of the term (7, 14 or 21 years) was at the option of the lessee alone.
Held: The case was decided on construction of the lease. Lord Eldon made it . .
CitedRochdale Canal Company v King 1853
Sir John Romilly MR said: ‘The principle on which the Defendants rely is one often recognised by this Court, namely, that if one man stand by and encourage another, though but passively, to lay out money, under an erroneous opinion of title, or . .
CitedDillwyn v Llewelyn ChD 12-Jul-1862
The father thought he had given his younger son land in Wales, in signing a memorandum and presenting it to him ‘for the purpose of furnishing himself with a dwelling-house’. The memorandum was not by deed. The son built his home on the land. When . .
CitedRegina (Reprotech (Pebsham) Ltd) v East Sussex County Council Reprotech (Pebsham) Ltd v Same HL 28-Feb-2002
The respondent company had asserted that the local authority had made a determination of the issue of whether electricity could be generated on a waste treatment site without further planning permission. The council said that without a formal . .
CitedWillmott v Barber ChD 19-Jun-1880
In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a . .
CitedPascoe v Turner CA 1-Dec-1978
The defendant had been assured by the plaintiff that ‘the house is yours and everything in it.’ In reliance on that assurance she carried out improvements to the house. Although the improvements were modest, their cost represented a large part of . .
CitedGrundy v Ottey CA 31-Jul-2003
The deceased left his estate within a discretionary trust. The claimant sought to assert an interest in it, claiming an estoppel and, under the 1975 Act, as his partner. They had lived together for four years. She had been dependent upon him . .
CitedLissimore v Downing ChD 31-Mar-2003
The claimant asserted an estoppel in land registered in the name of the defendant.
Held: Unspecific statements made by the defendant that ‘she would never want for anything’, or that ‘he would take care of her’, or that ‘he had looked after . .
CitedWindeler v Whitehall 1990
The plaintiff and defendant lived together but were not married. The plaintiff spent some of a legacy she received on living expenses and supervised minor building works to the family home. She claimed an interest in it.
Held: Millett J said: . .
CitedJennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
CitedGillett v Holt and Another ChD 18-Jun-1998
To establish a proprietary estoppel against the testator’s promise to leave items in his will, some overt act over and above a promise, and reliance upon that promise, must be shown in order to displace the testator’s right to change his will. . .
CitedGillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
CitedJT Developments v Quinn and Another CA 1990
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 . .
CitedBank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .

Cited by:
CitedBrightlingsea Haven Ltd and Another v Morris and others QBD 30-Oct-2008
The caravan park operated under planning consents requiring the caravans to be occupied only during certain months. The defendants had bought their mobile homes from the claimants to occupy full time, and said that the claimants knew of this. The . .
CitedSt Pancras and Humanist Housing Association Ltd v Leonard CA 17-Dec-2008
The claimant sought possession of a garage. The defendant claimed adverse possession.
Held: The defendant’s appeal against an order for possession failed. The defendant had attended a meeting where his behaviour had allowed other parties to . .
CitedBrighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
CitedClarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
CitedThorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
CitedClarke and Another v Corless and Another CA 31-Mar-2010
The claimants appealed against refusal of a declaration that a neighbouring access road and land was held on a constructive trust. They said that an agreement bewteeen the parties should have been effective to impose a trust on the defendants. The . .
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
CitedBenedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .

Lists of cited by and citing cases may be incomplete.

Contract, Land, Estoppel

Leading Case

Updated: 31 October 2021; Ref: scu.271281

Bramwell and Others v Robinson: ChD 21 Oct 2016

Interference with right of way

Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the defendant.

Behrens HHJ
[2016] EWHC B26 (Ch)
Bailii
England and Wales
Citing:
CitedWilliams v James 1867
A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the . .
CitedFinch v Great Western Railway Company 1879
The extent of the right of way acquired by prescription must be measured by the extent of user during the period of time relied upon. . .
CitedMills and Another v Silver and others CA 1991
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
CitedMcAdams Homes Ltd v Robinson and Another CA 27-Feb-2004
The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .
CitedOliver v Symons CA 15-Mar-2012
The parties disputed the extent of a right of way, the claimant appealing against the rejection of his claim for ‘swing space’ alongside the right of way.
Held: The appeal failed. Elias LJ said that the ‘argument for swing space fails. That is . .
CitedB and Q Plc v Liverpool and Lancashire Properties Ltd ChD 26-Jul-2000
The dominant owner wished to deal with delivery vehicles in a manner where they were left parked awaiting emptying. The servient owner (a lessee) wanted to construct buildings over a large part of the land. The servient owner objected.
Held: . .
CitedZieleniewski v Scheyd and Another CA 6-Mar-2012
The parties disputed the existence of a right of way. Briggs J set out the legal principles involved in a claim of interference with a right of way: ‘1) Not every interference with a right of way is actionable. The owner of the right may only object . .
CitedPettey v Parsons CA 1914
Mr Parsons (the defendant) owned a parcel of land on the junction of two roads in Bournemouth, called Charminster Road and Alma Road. In the middle of the parcel there was a footpath which ran from Charminster Road westwards to a private road which . .
CitedSaint v Jenner CA 1973
The dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. The servient owner installed speed bumps. The dominant onwer alleged interference with the right of way.
Held: This . .
CitedChristie v Davey 1893
A music teacher gave lessons at home and from time to time held noisy parties. He complained of nuisance when his neighbour retaliated by blowing whistles, banging trays and trying to disturb the music.
Held: The defendant’s actions were . .
CitedFlynn v Harte 1913
Dodd J said: ‘Each case depends upon its own facts. Whether a gate is or is not an obstruction of the right is a matter of fact. He who acts in a neighbourly way may be sure he is within the law. He who acts in an unneighbourly manner is breaking . .
CitedGeoghegan v Henry 11-Jan-1922
. .
CitedHollywood Silver Fox Farm v Emmett 1936
The plaintiffs farmed silver foxes for their fur. During the breeding season, they were nervous, but the neighbour defendant farmer deliberately encouraged his son to fire guns near the pens in order to disturb the breeding and cause economic loss. . .
CitedOwers v Bailey ChD 2006
Nicholas Strauss QC dealt with the interference on a right of way by the erection of a gate, summarising the law. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 October 2021; Ref: scu.570338

Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another: SC 6 Mar 2014

The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that argument.
Held: The basic issues was ‘where land is provided and maintained by a local authority pursuant to section 12(1) of the Housing Act 1985 or its statutory predecessors, is the use of that land by the public for recreational purposes ‘as of right’ within the meaning of section 15(2)(a) of the Commons Act 2006?’
Held: The residents’ appeal failed. The local residents were enjoying the rights over the land ‘by right’ and not ‘as of right’ and the land was not registrable under the 2006 Act as a town or village green.
Lord Neuberger said: ‘So long as land is held under a provision such as section 12(1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land ‘by right’ and not as trespassers, so that no question of user ‘as of right’ can arise.’ and ‘ a reasonable local authority in the position of the Council would have regarded the presence of members of the public on the Field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities, given that the Field was being held and maintained by the Council for public recreation pursuant to section 12(1) of the 1985 Act and its statutory predecessors.’
. . And: ‘ if the landowner has in some way actually communicated agreement to what would otherwise be a trespass, whether or not gratuitously, then he cannot claim it has been or is unlawful – at least until he lawfully withdraws his agreement to it. For the same reason, even if such an agreed arrangement had continued for 20 years, there can be no question of it giving rise to a prescriptive right because it would clearly have been precario, and therefore ‘by right’.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Reed, Lord Carnwath, Lord Hughes
[2014] 3 All ER 178, [2014] UKSC 31, [2014] HLR 36, [2014] 2 WLR 1360, [2014] WLR(D) 228, [2014] BLGR 459, UKSC 2013/0035, [2015] 1 AC 195, [2014] HLR 36
Bailii, Bailii Summary, WLRD, SC Summary, SC
Commons Act 2006 15
England and Wales
Citing:
CitedHE Green and Sons v Minister of Health (No 2) 1948
On an application under the 1936 Ac, provided that the field benefited council tenants (which it clearly did) it did not matter that it also benefited other people within the local community.
Denning J said: ‘The next question is whether the . .
At AdminBarkas, Regina (on The Application of) v North Yorkshire County Council and Scarborough Council Admn 20-Dec-2011
The claimants sought to have registered as a town or village green land in Whitby which had been provided as a playing field by the Local Authority since 1934. The inspector had found that the use had not been ‘as of right’ as required by the 2006 . .
OverruledRegina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Appeal fromBarkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
CitedHall v Beckenham Corporation 1949
A claim was made in nuisance against the local authority, the owner of a public park, in which members of the public flew noisy model aircraft.
Held: The local authority were not liable as the occupiers of the park for an alleged nuisance that . .
CitedRegina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
CitedLewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
CitedGardner v Hodgson’s Kingston Brewery Co HL 1903
The party claiming a right of way through the yard of a neighbouring inn, and her predecessors in title, had for well over 40 years used the inn yard (the only means of access with carts and horses to her premises) and had paid the annual sum of 15 . .
CitedDalton v Henry Angus and Co 1877
Fry J said: ‘ . .I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part . .
CitedLawrence and Another v Fen Tigers Ltd and Others CA 2012
Jackson LJ set out the way in which planning consents would affect whether actions amounted to a nuisance: ‘I would summarise the law which is relevant to the first ground of appeal in four propositions. (i) A planning authority by the grant of . .
CitedLambeth Overseers v London County Council HL 1897
The House was asked whether the county council, which owned and maintained a park under a power accorded by a local Act of Parliament, were in rateable occupation of it.
Held: Lord Halsbury said that: ‘there is no possibility of beneficial . .
CitedMills and Another v Silver and others CA 1991
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
CitedCumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd SCS 1992
(Inner House) When Cumbernauld town centre was built, a walkway was provided between the shopping centre and residential areas. It was used for many years, but then closed to prevent crime. The authority sought an interdict to keep it open as a . .
CitedCumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
ApprovedRegina v City of Sunderland, ex parte Beresford Admn 14-Nov-2000
A recreational area was claimed to be a common. The council considered that there was evidence, which it accepted, of an implied licence, thus enabling the inference to be drawn that the use by local inhabitants for statutory purposes had not been . .

Cited by:
CitedNewhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
CitedWinterburn and Another v Bennett and Another CA 25-May-2016
The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the . .
CitedAdamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council CA 18-Feb-2020
Appropriation was not in sufficient form
The claimants had challenged an order supporting the decision of the Council to use their allotments for a new primary school, saying that the land had be appropriated as allotment land, and that therefore the consent of the minister was needed.
Land, Local Government

Leading Case

Updated: 31 October 2021; Ref: scu.526192

Taylor v Whitehead: 28 Jun 1781

Rights of Way are Particular to the Subject Land

A motion may be made in arrest of judgment after a rule for a new trial has been discharged, and at any time before judgment is entered up. It is not a good justification in trespass, that the defendant has a right of way over part of the plaintiffs land, and that he had gone upon the adjoining land, because the way was impassable from being overflowed by a river.
The dominant owner of an easement of way (in whose interest it is that the way be kept in good repair) is entitled to maintain and repair the way and, if he wants the way to be kept in repair, must himself bear the cost.

Lord Mansfield
[1781] EngR 77, (1781) 2 Doug 745, (1781) 99 ER 475
Commonlii
England and Wales
Cited by:
CitedRegency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Leading Case

Updated: 31 October 2021; Ref: scu.372543

Edwards v Railway Executive: HL 1952

A boy aged 9 was injured on a railway line. He had been warned not to go onto the land and had found his way through a defective fence. He claimed in negligence. The fence had been breached by children with some frequency for many years before the accident. When defects were observed by the Defendant’s employees, repairs were duly effected. These were required with frequency. The evidence was that the fence was intact on the accident date.
Held: He was a trespassr and not a licensee.
Lord Goddard said: ‘repeated trespass of itself confers no licence . . how is it to be said that (an occupier) has licensed what he cannot prevent . . Now, to find a licence there must be evidence either of express permission or that the landowner has so conducted himself that he cannot be heard to say that he did not give it . . What then have they done in this case to lead anyone to suppose that they may go on to their property to play ?’
Lord Oaksey said: ‘In my opinion, in considering the question whether a licence can be inferred, the state of mind of the suggested licensee must be considered. The circumstances must be such that the suggested licensee could have thought and did think that he was not trespassing but was on the property in question by the leave and licence of its owner.’
Lord Porter said that the first question to be decided was: ‘whether there was any evidence from which it could be inferred that children from the recreation ground had become licensees to enter the respondent’s premises and toboggan down the embankment . . There must, I think, be such assent to the user relied upon as amounts to a licence to use the premises. Whether that result can be inferred or not must, of course, be a question of degree, but in my view a court is not justified in likely inferring it . . The onus is on the appellants to establish their licence, and in my opinion they do not do so merely by showing that, in spite of a fence now accepted as complying with the Act requiring the respondents to fence, children again and again broke their way through. What more, the appellants asked, could the respondents do? Report to the Corporation? But their caretaker knew already. Prosecute? First you have to catch your children and even then would that be more effective? In any case I cannot see that the respondents were under any obligation to do more than keep their premises shut off by a fence which was duly repaired when broken and obviously intended to keep intruders out.’

Lord Porter, Lord Goddard, Lord Oaksey
[1952] 2 All ER 430, [1952] AC 737
Cited by:
CitedBritish Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
CitedHarvey v Plymouth City Council CA 29-Jul-2010
The Council appealed against a finding of liability under the 1957 Act after the claimant was injured after jumping over a fence to flee hving to pay a taxi, and falling down a steep slope onto a car park. The land had been licenced to the . .

Lists of cited by and citing cases may be incomplete.

Negligence, Personal Injury, Land

Leading Case

Updated: 31 October 2021; Ref: scu.182867

The Mersey Docks And Harbour Board v Penhallow And Others: CEC 18 Jun 1861

Trustees incorporated by statute for the purpose of constructing a dock, and who receive rates and have funds which they are bound to apply in maintaining and cleansing the dock, so that it may be in a fit state for vessels to enter, are liable for injury to a vessel caused by an accumulation of mud in the dock, of which by their servants they had the means of knowing, and were negligently ignorant.
[1861] EngR 734, (1861) 7 H and N 329, (1861) 158 ER 500
Commonlii
England and Wales

Updated: 23 October 2021; Ref: scu.284495

Goodchild v Branbury and others: CA 15 Dec 2006

Application was made to set aside transfers of land for undue influence, and that the second transfere was aware of the deficiency in the first.
Held: The appeal suceeded, and the transfers were set aside. Chadwick LJ said: ‘A gift which is made without informed consideration by a person vulnerable to influence, and which he could not have been expected to make if he had been acting in accordance with the ordinary motives which lead men’s actions, needs to be justified on the basis that the donor knew and understood what he was doing. In this case, that requirement was not met.’
Chadwick LJ
[2006] EWCA Civ 1868
Bailii
England and Wales
Citing:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedInche Noriah v Shaik Allie Bin Omar PC 1928
Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough . .
CitedJennings and Another v Cairns CA 18-Nov-2003
Nieces had fallen out over their aunt’s estate. One niece had been closer than the others, and despite not properly understanding what she was doing the deceased had made lifetime gifts to the niece who was now executor. She appealed a finding of . .
CitedHammond v Osborn and Another CA 27-Jun-2002
Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.249100

Drury v Kent: 1603

‘he could not grant it over, for he hath it quasi sub modo viz. for the beasts levant and couchant; . . but common appurtenant for beasts certain may be granted over.’
(1603) Cro Jac 14
England and Wales
Cited by:
CitedWhite v Taylor (No 2) ChD 1969
The alienation of grazing rights for a fixed number of beasts cannot prejudice the residual interest of the owner of the servient common. Whoever the grazing right belongs to, the number of beasts that can be grazed upon the common pursuant to the . .
CitedBettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .

Lists of cited by and citing cases may be incomplete.
Updated: 19 October 2021; Ref: scu.191141

Harris v Birkenhead Corporation: CA 12 Nov 1975

A four year old child had fallen from a second-story window in a derelict house owned by the defendant, and suffered serious injury. The house and others had been purchased by compulsion for intended clearance. The Corporation appealed against a finding of liability.
Held: Appeal and cross-appeals dismissed. For the purposes of the Act, the Corporation, having the immediate right of control of the property, became its occupier as soon as a tenant had left. An occupier has a duty to protect infants from a danger of trespassing. The Council knew the property was empty. They had control of it and they had done nothing about providing any such protection.
Megaw, Lawton, Ormrod LJJ
[1976] 1 All ER 341, [1975] EWCA Civ 10, [1975] 1 WLR 379
Bailii
Housing Act 1957
England and Wales
Citing:
CitedBritish Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
CitedWheat v E Lacon and Co Ltd HL 1966
The Appellant’s husband, fell while going down the back stairs of a public house called ‘The Golfer’s Arm’ at Great Yarmouth. He was found lying on the floor of the vestibule at the bottom of the stairs and died later. She appealed against rejection . .

Cited by:
DistinguishedBushell and Others, Regina (on the Application Of) v Newcastle Licensing Justices and others CA 25-Jun-2004
The applicant sought special removal of a justices on-licence from former premises to its new premises.
Held: The special removal procedure was limited to circumstances of urgency. The applicant had to show that the circumstances fell within . .
CitedRose v Plenty CA 7-Jul-1975
Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
Held: The milkman had not gone so far outside the activities for which he was employed for the . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.189963

Evis and Smith v Commission for New Towns: LT 31 Dec 2000

LT COMPENSATION – preliminary issue – disturbance payment – Land Compensation Act 1973 s 37 – business premises acquired by authority with compulsory purchase powers – land later developed by company with lease from authority – entitlement to compensation under Landlord and Tenant Act 1954 s 37 – whether such entitlement precludes compensation under 1973 Act s 37(1)(a) – whether fact that development not carried out by authority precludes compensation under s 37(1)(c) – held compensation under s 37(1)(a) not precluded but no entitlement under s 37(1)(c)
ACQ/125-7/2000
Land Compensation Act 1973 37
England and Wales

Updated: 10 October 2021; Ref: scu.170276

P and S Platt Ltd v Crouch and Another: CA 25 Jul 2003

The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did not interfere to an unacceptable extent with the servient owner’s enjoyment of his land, the judge’s finding of what was in practice a question of fact would not be disturbed.
Peter Gibson, Dyson, Longmore LJJ
[2003] EWCA Civ 1110, Times 27-Aug-2003, [2004] 1 Pand CR 18
Bailii
Law of Property Act 1925 62
England and Wales
Citing:
CitedWheeldon v Burrows CA 17-Jun-1879
Quasi-Easements granted on sale of part of Estate
S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the . .
CitedBirmingham, Dudley and District Banking Co v Ross CA 1888
Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under . .
CitedWright v Macadam KBD 1949
The court considered the exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of section 62. One exception was if the right was . .
CitedHair v Gillman 2000
. .
CitedSelby District Council v Samuel Smith Old Brewery Ltd CA 15-Jun-2000
The council conveyed land to the brewery, with an option to re-purchase it. On exercising the option, the brewery asserted rights over the land, by way of easement acquired during its ownership. These were rejected by the court. The intention of the . .
CitedPrenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
CitedCopeland v Greenhalf ChD 1952
If a right claimed by way of an easement would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, than that right is not capable of being an easement. The rights asserted here were both . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society and Others CA 1-Nov-1996
Public policy rendered an assignment of a remedy void, where the assignment was an attempt to split it from another remedy. For the purpose of construing a contract the law excludes from the admissible factual background the previous negotiations of . .
CitedLondon and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
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 . .
CitedBatchelor v Marlow and Another ChD 25-May-2000
The applicant claimed parking rights as an easement. If an easement was capable of arising by virtue of a deed of grant, it could also be acquired by prescription. This was such an easement. Use in the absence of planning permission did not vitiate . .

Cited by:
CitedCampbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.184830

City Developments v Registrar General of the Northern Territory: 2 Jun 2000

(Supreme Court of the Northern Territory) – Hearing of preliminary point – whether purported grant of an easement an easement – easement has four essential criteria – easement does accommodate dominant tenement – the grant possessed all four characteristics – definition of easement – definition of recreation – no reason in law why easement cannot be granted for recreational purposes – intention of grantor to create large recreational area – encumbrance subject and conditional to registered easements – affects each section of land which receive benefit of the easement – test for an easement – recreational purpose is to be construed sensibly and reasonably in context of rural lakeside recreation – right conferred in respect of the grants of easements are in law easements
There was no reason in law why an easement could not be granted for recreational purposes.
Thomas J
(2000) 135 NTR 1, (2000) 156 FLR 1, [2000] NTSC 33
Austlii
Australia
Cited by:
CitedRegency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
CitedRegency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.581419

Riley v Penttila: 20 Mar 1974

(Supreme Court of Victoria) The Court recognised as an easement the grant of land within a residential development ‘for the purposes of recreation’ over a garden or a park, in favour of residential lots, enthusiastically following the lead given in In re Ellenborough Park .
Gillard J
(1974) 30 LGRA 79, [1974] VR 547, [1974] VicRp 67
Austlii
Australia
Cited by:
CitedRegency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
CitedRegency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.581350

J A Pye and Another v Graham and Another: ChD 14 Mar 2000

The fact alone of being prepared to take a licence of land would not defeat an application for adverse possession, but a request for a licence would be relevant. The adverse possession commenced from the time when the licence expired, given that a sufficient animus was then established. The reference in the section to the taking of action did not apply to an application to warn off the cautions made to the Land Registry which was not a court, and the application was not an application to recover land. Since the Grahams enjoyed factual possession of the land from January 1984, and adverse possession took effect from September 1984, the applicant company’s title was extinguished pursuant to the 1980 Act, and the Grahams were entitled to be registered as proprietors of the land. ‘[The Grahams] sought rights to graze or cut grass on the land after the summer of 1984, and were quite prepared to pay. When Pye failed to respond they did what any other farmer in their position would have done: they continued to farm the land. They were not at fault. But the result of Pye’s inaction was that they enjoyed the full use of the land without payment for 12 years. As if that were not gain enough, they are then rewarded by obtaining title to this considerable area of valuable land without any obligation to compensate the former owner in any way at all. In the case of unregistered land, and in the days before registration became the norm, such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it. It is reassuring to learn that the Land Registration Act 2002 has addressed the risk that a registered owner may lose his title through inadvertence. But the main provisions of that Act have not yet been brought into effect, and even if they had it would not assist Pye, whose title had been lost before the passing of the Act. While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend, this is a conclusion which I (like the judge [Neuberger J]…) ‘arrive at with no enthusiasm’.’
Neuberger J
Gazette 17-Feb-2000, Gazette 24-Feb-2000, Times 14-Mar-2000, [2000] Ch 676, [2000] 3 All ER 865
Limitation Act 1980 15(1) 17
England and Wales
Citing:
DistinguishedWalters v Webb 1870
. .
CitedVandeleur v Sloane 1919
. .

Cited by:
Appeal fromJ A Pye (Oxford) Ltd and Another v Caroline Graham and Another CA 6-Feb-2001
Where a tenant under a grazing license had stayed over after the end of the tenancy, and had been refused a renewed licence, and had continued to graze the land for over twelve years, the mere overstaying was not enough to evidence an animus . .
At first instanceJ A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
At first instanceJ A Pye (Oxford) Ltd v The United Kingdom ECHR 15-Nov-2005
The claimants had been the registered proprietors of land, they lost it through the adverse possession of former tenants holding over. They claimed that the law had dispossessed them of their lawful rights.
Held: The cumulative effect of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.85085

Bourke v Davis: 1890

Kay J considered that a customary right over land might be confined to the inhabitants of a district.
Kay J
(1890) 44 Ch D 110
England and Wales
Cited by:
CitedEdwards v Jenkins 1896
Application was made to register a customary right over land.
Held: The ‘locality rule’ applied. The inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land . .
CitedPaddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.441214

Shaw v Applegate: CA 1977

There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and damages. The plaintiff appealed a decsion that he had lost the ability to enforce the covenant through delay.
Held: The appeal succeeded, but the remedy was limited to damages. The court considered the continuing enforceability of a restrictive covenant.
Buckley LJ said: ‘The real test, I think, must be whether upon the facts of the particular case the situation has become such that it would be dishonest or unconscionable for the plaintiff, or the person having the rights sought to be enforced, to continue to seek to enforce it.’ As to Willmott -v- Barber: ‘As I understand that passage, what the judge is there saying is that where a man has got a legal right – as the plaintiffs have in the present case, being legal assignees of the benefit of the covenant binding the defendant – acquiescence on their part will not deprive them of that legal right unless it is of such a nature and in such circumstances that it would really be dishonest or unconscionable of the plaintiffs to set up that right after what has occurred.’
Buckley LJ, Goff LJ
[1977] 1 WLR 970
England and Wales
Citing:
CitedWillmott v Barber ChD 19-Jun-1880
In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a . .
ExlainedWilmott v Barber ChD 19-Jun-1880
The lessee of three acres of land agreed in January, 1874, to let one acre to the Plaintiff for the whole of the residue of his term, and he agreed also to sell to the Plaintiff his interest in the whole three acres at any time within five years . .

Cited by:
CitedWWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
AppliedGafford v A H Graham and Grandco Securities Limited CA 8-Apr-1998
A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his . .
CitedHarris v Williams-Wynne ChD 11-Feb-2005
The parties agreed in sale agreement for a plot of land that the buyer would not erect any additional building. He did so, and when he came to try to sell it the original vendor objected. The purchaser’s solicitors registered the agreement for sale. . .
CitedTurner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
CitedFisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
CitedMills v Partridge, The Estate of and Another ChD 5-Aug-2020
Rights and obligations relating to three parcels of land . .
CitedArgus Media Ltd v Halim QBD 7-Feb-2019
Challenge to validity of post employment restraint clause. . .
CitedSingh v Rainbow Court Townhouses Ltd PC 19-Jul-2018
(Trinidad and Tobago) . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 September 2021; Ref: scu.250686

Salvesen v Riddell and Another: SCS 15 Mar 2012

Second Division – The court allowed an appeal under section 88(1) of the 2003 Act from a decision of the Scottish Land Court. The section was incompatible with the European Convention on Human Rights. The Court proceeded on the basis that section 72 was enacted as an anti-avoidance measure. But on that basis that it was inappropriate because of its excessive effect and its arbitrary scope. The Lord Justice Clerk said that it was excessive because, if the landlord should fail to obtain an order of the Land Court under section 72(9), the general partner is given a 1991 Act tenancy of the holding, with all the adverse consequences to the landlord that this involves, and the landlord is also exposed to the tenant’s contingent right to buy.
Lord Justice Clerk Gill, Lord Osborne and Lord Nimmo Smith
[2012] ScotCS CSIH – 26, 2012 Hous LR 30, 2012 GWD 12-234, 2013 SC 69, 2012 SCLR 403, 2012 SLT 633
Bailii
Agricultural Holdings (Scotland) Act 2003 88(1), European Convention on Human Rights 1
Scotland
Citing:
At Scottish Land CourtSalvesen v Riddell SLC 29-Jul-2010
SLC Agricultural holdings – limited partnership tenancy – limited partner being agent of landlord – notice of dissolution of partnership validly given – notice given on 3 Feb 2003 – expected change of legislation . .

Cited by:
At Court of SessionSalvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
At SCSSalvesen v Riddell and Another SCS 6-Jan-2015
The appellant enrolled a motion requesting payment by the Land court of the costs occasioned in a long running legal dispute. . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.452231

University of Birmingham v Persons Unknown: ChD 22 Jan 2015

Applicaion to extend a Writ of Possession used to restrain a pattern of disruptive and occupational protests of University buildings across the whole of the University campus, which was having a deleterious effect upon University life generally, both of students and staff, as well as of other lawful visitors.
Purle QC HHJ
[2015] EWHC 544 (Ch)
Bailii
England and Wales

Updated: 07 August 2021; Ref: scu.543952

Noakes and Co Ltd v Rice: HL 17 Dec 1901

Rule Against Clog on equity of Redemption

A mortgage of a leasehold public house contained a covenant with the mortgagee, a brewery, that the mortgagor and his successors in title would not, during the continuance of the leasehold term and whether or not any money should be owing on the security of the mortgage, sell malt liquor in the public house other that that purchased from the brewery.
Held: The covenant was not enforceable after redemption of the charge.
Lord MacNaghten said of the rule preventing a clog on the equity of redemption of a mortgage: ‘Redemption is of the very nature and essence of a mortgage, as mortgages are regarded in equity. It is inherent in the thing itself. And it is, I think, as firmly settled now as it ever was in former times that equity will not permit any device or contrivance designed or calculated to prevent or impede redemption. It follows as a necessary consequence that, when the money secured by a mortgage of land is paid off, the land itself and the owner of the land in the use and enjoyment of it must be as free and unfettered to all intents and purposes as if the land had never been made the subject of the security.’
Lord Lindley said: ‘My Lords, I agree in thinking that the covenant contained in this mortgage, and by which the mortgagees have attempted to convert the house mortgaged from a free public-house into a tied public-house even after redemption, is invalid. I see no answer to the objection taken to it that upon payment off of the mortgage money the mortgagor cannot get back what he mortgaged, namely, a free public-house.’
Earl of Halsbury LC, Lord MacNaghten, Lord Lindley
[1902] AC 24, [1901] UKHL 3
Bailii
England and Wales
Cited by:
CitedG and C Kreglinger v The New Patagonian Meat and Cold Storage Company HL 20-Nov-1913
Mortgagor’s collateral dvantage is not a clog
The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The . .
CitedJones v Morgan CA 28-Jun-2001
The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.443246

Hepworth v Pickles: ChD 2 Nov 1899

The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as an inn, tavern or beerhouse. The covenant had been imposed in 1874, and the open use in breach had begun shortly afterwards. The buyer sought to rescind the contract.
Held: His action failed. The covenant had been waived or released. Farwell J said: ‘if you find a long course of usage, such as in the present case for twenty-four years, which is wholly inconsistent with the continuance of the covenant relied upon, the Court infers some legal proceeding which has put an end to that covenant, in order to show that the usage has been and is now lawful, and not wrongful.’
Farwell J
[1900] 1 Ch 108, [1900] 69 LJ Ch 55, [1900] 81 LT 818, [1900] 48 WR 184, [1900] 44 Sol Jo 44
England and Wales
Citing:
CitedFlight v Barton 1832
The silence of the vendor’s agent is equivalent to a representation that there is no covenant prohibiting the current use of a property being sold. . .
FollowedGibson v Doeg 1857
A tenant had openly used the premises for many years in breach of a covenant in the lease.
Held: Pollock CB said: ‘It is a maxim of the law to give effect to everything to which appears to have been established for a considerable course of . .
FollowedIn re Summerson (Note) 23-Feb-1899
The buyer of leasehold promises sought to be discharged from her obligation to complete, when it was revealed after exchange of contracts, that the lease contained a clause for forfeiture if the premises should be used as an alehouse. The property . .

Cited by:
CitedAttorney General of Hong Kong v Fairfax Limited PC 17-Dec-1996
(Hong Kong) A lease had been granted containing a covenant that the tenant would build villa residences only on the land. In breach of that covenant many high rise properties had been erected over many years. The applicant, now respondents, had . .
CitedTurner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
CitedGreenhalgh v Brindley 1901
. .
CitedTew v South Northamptonshire Council UTLC 20-Sep-2010
UTLC COMPULSORY PURCHASE – disused public house in poor condition – value as public house/restaurant – comparables – value for residential development – residual valuation – whether developer demand still buoyant . .
MentionedJacey Property Company Ltd v De Sousa and others CA 28-Feb-2003
. .
CitedCity and Westminster Properties v Mudd ChD 1958
. .
CitedRe Lower Onibury Farm, Onibury, Shropshire, Lloyds Bank Ltd v Jones 1955
Long acquiescence by a landlord, or a failure to insist on his rights, does not amount to a release from a covenant, unless his conduct is wholly inconsistent with the continued existence of the covenant or shows that he intended to waive . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.252340

Lord Advocate v Lord Lovat: 1880

Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.’
Lord Blackburn said: ‘I retain the opinion which I expressed in Lord Advocate v Lord Blantyre that this possession of part is evidence, but not conclusive evidence, of possession of the whole, its weight depending upon circumstances. What in my mind gives it in this case great weight is that this undisputed possession was of the salmon fishings in the whole of that portion of the river in which the salmon fishings were of any commercial value.’
Lord O’Hagan
(1880) 5 App Cas 273
Scotland
Citing:
CitedLord Advocate v Lord Blantyre HL 1879
The defender claimed ownership of land based on possession from time immemorial of foreshore and banks in the River Clyde of some 5 miles and 2 miles respectively in length and spread over some 750 acres.
Held: Lord Blackburn said: ‘Every act . .
Appeal fromLord Advocate v Lord Lovat SCS 7-Mar-1879
. .

Cited by:
CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
CitedBarton v The Church Commissioners for England ChD 15-Dec-2008
The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to . .
CitedSmith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
CitedTreloar v Nute CA 1976
The judge in the County Court had rejected a claim to adverse possession by a defendant who together with his father had done a number of acts, some more trivial than others, in and around a disputed gully and adjacent land leading eventually to the . .
CitedR and B Customs Brokers Co Ltd v United Dominions Trust Ltd CA 1988
There was an issue whether or not the purchase by the plaintiff of a second-hand car was made ‘in the course of a business’ so as to preclude the plaintiff from relying upon the provisions of the 1977 Act.
Held: Speaking of Lord Keith’s . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.267350

Brackenbank Lodge Ltd v Peart and Others: CA 4 Jun 1993

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.
Ind Summary 28-Jun-1993, Times 04-Jun-1993
England and Wales
Cited by:
Appeal fromBrackenbank Lodge Ltd v Peart and Others HL 26-Jul-1996
The court overturned the decision of the Court of Appeal following the discovery of a very ancient report of a court hearing on the same issues. The Peart defendant had failed to disclose to his lawyers the existence of the judgment, and he should . .

These lists may be incomplete.
Updated: 07 July 2021; Ref: scu.78539