Why v Cheltenham Borough Council: UTLC 24 May 2017

UTLC COMPENSATION – compulsory purchase – unoccupied house – condition adversely affecting amenity of neighbourhood – open market value – comparables – deduction for local land charges – cost of property and garden clearance – compensation assessed at 140,000 pounds

Citations:

[2017] UKUT 208 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 26 March 2022; Ref: scu.584538

Dean and Another, Re The Leasow, 4 River View Close: UTLC 15 May 2017

Restrictive Covenants : Modification – restriction preventing construction of more than one house per plot – land with planning consent for an additional dwelling adjacent to existing house — whether proposed user reasonable – whether covenant secures practical benefits of substantial value or advantage to the objectors – ‘thin-end-of-the-wedge’ – whether injury to objectors – application granted – Law of Property Act 1925, sections 84(1)(aa) and (c)

Citations:

[2017] UKUT 203 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 26 March 2022; Ref: scu.583902

Samson, Re 41 Newcombe Street: UTLC 27 Mar 2017

RESTRICTIVE COVENANTS – proposed construction of additional house in existing terrace – restriction against development of application land without vendors’ approval – whether restriction obsolete – whether restriction secured substantial practical benefits – possible interference with right of way to rear of objectors’ properties – worsening of on-street car parking – application for discharge or modification – restriction modified under ground (aa) – s84 Law of Property Act 1925

Citations:

[2017] UKUT 127 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Land

Updated: 24 March 2022; Ref: scu.582123

Waggott and Another v Yip: UTLC 13 Mar 2017

UTLC RESTRICTIVE COVENANT – discharge – restriction preventing use of premises other than as offices – applicants wish to convert to two residential flats – whether restriction obsolete – whether covenant secures practical benefits of substantial value or advantage – whether discharge would injure the objector – application granted – Law of Property Act 1925 s.84(1)(a), (aa) and (c)

Citations:

[2017] UKUT 108 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84(1)(a)

Jurisdiction:

England and Wales

Land

Updated: 24 March 2022; Ref: scu.582125

SME (Hammersmith) Ltd v Transport for London: UTLC 6 Mar 2017

COMPENSATION – Compulsory Purchase – leasehold franchise restaurant at Farringdon – extinguishment of business owing to Crossrail Scheme – agreed assumed maintainable earnings figure – dispute as to appropriate multiplier – comparable transactions of franchises – extinguishment value determined at 1,498,000 pounds.

Citations:

[2017] UKUT 91 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 24 March 2022; Ref: scu.582124

Friends Trusts Ltd, Re A Notice of Reference: UTLC 13 Mar 2017

COMPENSATION – Acquisition of superior freehold interest – absent or untraceable owner – valuation – Places of Worship (Enfranchisement) Act 1920 – compensation determined at 2,500 pounds

Citations:

[2017] UKUT 109 (LC)

Links:

Bailii

Statutes:

Places of Worship (Enfranchisement) Act 1920

Jurisdiction:

England and Wales

Land

Updated: 24 March 2022; Ref: scu.582120

Pritchett v Crossrail Ltd: CA 3 May 2017

Appeal from the judgment and order of Ouseley J dismissing the appellant’s application for judicial review of a decision of the respondent to offer land at Dean Street and Great Chapel Street, London W1 for sale in the open market.

Judges:

David, Lewison, McCombe LJJ

Citations:

[2017] EWCA Civ 317

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 24 March 2022; Ref: scu.582109

Alex Cuthbert, Esq, and Chas Innes, Ws v Mrs Anstruther Paterson and Philip Anstruther Paterson, Esq, Her Husband: HL 23 Apr 1787

Entail. – Held, that where an entail was declared ineffectual against creditors, in consequence of not enumerating the irritant and resolutive clause, and not being recorded, that it could not be held good against a purchaser of the estate.

Citations:

[1787] UKHL 3 – Paton – 76

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 23 March 2022; Ref: scu.581017

Honourable W Elphinstone v Campbell and Others: HL 30 Apr 1787

Right of Voting. – Whether a conveyance of a superiority of lands held under strict entail, conferred a substantial right of voting; or was a mere nominal and fictitious creation of a right, resorted to for the purpose of giving a right to vote for a member of Parliament?

Citations:

[1787] UKHL 3 – Paton – 77

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 23 March 2022; Ref: scu.581018

Mrs Ann Paterson and Philip Anstruther, Mary Paterson, and Alexander Campbell and Henry Campbell v Stephen Bromfield, Esq: HL 19 Feb 1786

Entail. – A party had made an entail with power to alter. He afterwards altered, and made a new entail, differing in the destination from the first, with a clause merely referring to the prohibitory, irritant, and resolutive clauses in the first deed. Held, this reference clause not sufficient as an entail to protect against creditors.

Citations:

[1786] UKHL 3 – Paton – 50

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 23 March 2022; Ref: scu.581009

Alex Clerk, Aberdeen v Hugh Gordon: HL 9 Mar 1787

Gestio pro Haerede – Passive Title. – A father had conveyed his whole estate, heritable and moveable, to his third son, who, in recovering, found an heritable debt of andpound;60, which was not specially embraced in the conveyance. To remove objections to his title to receive and discharge the debt, the father’s eldest son and heir-at-law, consented to sign the discharge along with his brother. Held, that this subjected him in the passive title of gestio pro haerede. But, in the House of Lords, case remitted back for consideration, and to adduce proof that, at the date of the discharge, his brother was in right to receive the debt of andpound;60.

Citations:

[1787] UKHL 3 – Paton – 61

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 23 March 2022; Ref: scu.581015

Miss Frances Hay, A Minor, and Her Curators v Robert Hay, Esq, of Drumelzier: HL 25 Jun 1789

Entail – Succession – Heirs Male. – Circumstances in which the words ‘ heir male’ in an entail, received a strict technical interpretation, though they had been used with the same meaning, so far as appeared from the deed, as that of ‘ heirs male of the bodies’ of the substitutes, which had been used in other parts of the deed.

Citations:

[1789] UKHL 3 – Paton – 142

Links:

Bailii

Jurisdiction:

Scotland

Land, Trusts

Updated: 23 March 2022; Ref: scu.580999

Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd: ChD 9 Mar 2007

Dispute over right to light.
Gabriel Moss QC HHJ said: ‘I would deduce the following principles from these cases in relation to the assessment of damages for loss of the ability to prevent an infringement of a right to light at the point just before any infringement takes place: (1) The overall principle is that the Court must attempt to find what would be a ‘fair’ result of a hypothetical negotiation between the parties;
(2) The context, including the nature and seriousness of the breach, must be kept in mind;
(3) The right to prevent a development (or part) gives the owner of the right a significant bargaining position;
(4) The owner of the right with such a bargaining position will normally be expected to receive some part of the likely profit from the development (or relevant part);
(5) If there is no evidence of the likely size of the profit, the Court can do its best by awarding a suitable multiple of the damages for loss of amenity;
(6) If there is evidence of the likely size of the profit, the Court should normally award a sum which takes into account a fair percentage of the profit;
(7) The size of the award should not in any event be so large that the development (or relevant part) would not have taken place had such a sum been payable;
(8) After arriving at a figure which takes into consideration all the above and any other relevant factors, the Court needs to consider whether the ‘deal feels right’.’

Judges:

Gabriel Moss QC

Citations:

[2007] EWHC 828 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoTamares (Vincent Square) Ltd. v Fairpoint Properties (Vincent Square) Ltd ChD 8-Feb-2007
The defendant had been found liable for infringing the claimant’s right of light. The court considered the proper measure of damages.
Held: The court should ask what might be the fair result of a hypothetical negiation for the sale of the . .

Cited by:

Appeal fromTamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd CA 15-Nov-2007
. .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 March 2022; Ref: scu.254481

Colchester Borough Council v Smith and Others: CA 18 Mar 1992

A tenant was bound by his tenancy agreement which accepted the good title of the Landlord, and he was not to be heard to assert a prior adverse possession claim against the Landlord. Public policy requires that settlements should be enforced.

Citations:

Gazette 18-Mar-1992, [1992] Ch 421

Jurisdiction:

England and Wales

Cited by:

CitedBarrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 March 2022; Ref: scu.79268

Jones v Canal and River Trust: CA 7 Mar 2017

The defendant boat owner appealed against an order requiring the removal of his boat from te hwaterway. He had a licence based upon a stated intention of genuine navigation, but had for a period of several months confined the boat with a 5km section. He appealed saying that the respondents had not considered the need to allow for the fact that the boat was his home, with associated human rights.

Judges:

Jackson, McCombe, Sales LJJ

Citations:

[2017] EWCA Civ 135

Links:

Bailii

Statutes:

British Waterways Act 1983

Jurisdiction:

England and Wales

Transport, Land, Human Rights, Housing

Updated: 09 February 2022; Ref: scu.579607

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.

Judges:

Wiarda, Zekia, Cremona, Vilhjalsson

Citations:

7152/75, [1983] 5 EHRR 35, [1982] ECHR 5, 7151/75

Links:

Worldlii

Statutes:

European Convention on Human Rights P1-1

Jurisdiction:

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 . .
See alsoSporrong And Lonnroth v Sweden ECHR 18-Dec-1984
(Article 50) . .

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 . .
CitedDA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Land, Planning

Leading Case

Updated: 07 February 2022; Ref: scu.164907

Pearce v Connelly and Others: UTLC 9 Feb 2017

UTLC RESTRICTIVE COVENANTS – modification – garden land with planning consent for residential dwelling – restriction preventing construction of more than one house – whether covenant secures practical benefits of substantial value or advantage – held it did not – application under ground (aa) allowed – Law of Property Act 1925 s.84(1)(aa)

Citations:

[2017] UKUT 39 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84(1)(aa)

Jurisdiction:

England and Wales

Land

Updated: 31 January 2022; Ref: scu.575359

TW Logistics Ltd v Essex County Council and Another: ChD 8 Feb 2017

The court was asked whether an area of land forming part of the Port of Mistley in Essex should remain registered as a town or village green pursuant to the Commons Act 2006, or whether the TVG register should be rectified by the de-registration in whole or in part of the Land by the exercise of the court’s jurisdiction under section 14 of the Commons Registration Act 1965

Judges:

Barling j

Citations:

[2017] EWHC 185 (Ch)

Links:

Bailii

Statutes:

Commons Registration Act 1965 14, Commons Act 2006

Jurisdiction:

England and Wales

Planning, Land

Updated: 29 January 2022; Ref: scu.573913

Millgate Developments Ltd and Another v Smith and Another, Re: Exchange House, Woodlands Park Avenue, Maidenhead: UTLC 21 Nov 2016

UTLC RESTRICTIVE COVENANTS – Modification – land in green belt subject to restriction to be used only for parking vehicles – 13 affordable housing units built prior to application and in the face of objections – adjoining land with benefit of covenant being developed as children’s hospice – whether modification appropriate – practical benefits of substantial value or advantage – public interest – injury – offer of compensation – discretion – s.84(1)(aa) and (c), Law of Property Act 1925 – modification ordered on payment of compensation

Citations:

[2016] UKUT 515 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Land

Updated: 29 January 2022; Ref: scu.573878

Vyse v Wyldecrest Parks (Management) Ltd: UTLC 30 Jan 2017

UTLC PARK HOMES – pitch fee review – site licence fee increased by local authority – whether increase should be included in the pitch fee – presumption of change in line with RPI not displaced – paragraphs 18(1)(ba) and 20(A1) Schedule 1 to Mobile Homes Act 1983

Citations:

[2017] UKUT 24 (LC)

Links:

Bailii

Statutes:

Mobile Homes Act 1983

Jurisdiction:

England and Wales

Land

Updated: 29 January 2022; Ref: scu.573875

Rae, Re 12 Park View (Restrictive Covenants : Modification): UTLC 13 Dec 2016

UTLC Prohibition of more than one house on plot – planning permission for second house – whether covenant obsolete – held that it was not – application under grounds (a) and (c) refused – whether covenant secured practical benefits of substantial value or advantage – held that it did not – application under ground (aa) granted, subject to payment of compensation of andpound;5,000 and andpound;2,500 to immediately adjoining objectors – condition attached to modification to prevent removal of screening hedges

Citations:

[2016] UKUT 552 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Land

Updated: 29 January 2022; Ref: scu.573883

Munday v The Crown Estate Commissioners, Re: Pinewood Lodge, Oxshott: UTLC 22 Nov 2016

UTLC RESTRICTIVE COVENANT – Costs – application to modify – objector relying solely on privity of contract – original covenantor transferring burdened land to spouse to avoid objection – objection withdrawn – whether objector to pay costs of application – rules 10(3) and 10(6)(c), Tribunal Procedure (Upper Tribunal)(Lands Chamber) Rules 2010 — Lands Chamber Practice Directions para 12.5(2) – application for costs refused

Citations:

[2016] UKUT 503 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Land

Updated: 29 January 2022; Ref: scu.573879

Lynch, Re Land At St Catherines Road Ruislip: UTLC 23 Nov 2016

UTLC RESTRICTIVE COVENANTS – modification – land with planning permission for residential dwelling – prohibition restricting construction of more than one house – whether covenant obsolete – held that it was not – application under ground (a) refused – whether covenant secured practical benefits of substantial value or advantage – held it did not – application under ground (aa) allowed – compensation payable of andpound;25,000 and andpound;15,000 – Law of Property Act 1925 s.84(1)(a), (aa).

Citations:

[2016] UKUT 488 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Land

Updated: 29 January 2022; Ref: scu.573877

Meredith v King’s Lynn and West Norfolk Borough Council: UTLC 12 Jan 2017

UTLC COMPENSATION – Compulsory purchase – Grade II Listed house in disrepair – owner’s failure to comply with Repairs Notice or Urgent Works Notice – development prospects – cost of repair and renovation – valuation – comparables – Section 5(2) Land Compensation Act 1961- compensation determined at andpound;125,000

Citations:

[2017] UKUT 2 (LC)

Links:

Bailii

Statutes:

Land Compensation Act 1961 5(2)

Jurisdiction:

England and Wales

Land

Updated: 29 January 2022; Ref: scu.573873

Oldcorn and Another v Southern Water Services Ltd: TCC 23 Jan 2017

The Claimants sought damages against the Defendants on the basis that the flood damage they suffered at the Property was caused by negligence and / or nuisance on the part of the Defendants.

Judges:

McKenna HHJ

Citations:

[2017] EWHC 62 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Utilities, Land

Updated: 28 January 2022; Ref: scu.573406

Matchmove Ltd v Dowding and Another: CA 7 Dec 2016

Appeal against a finding that an oral agreement for the purchase of land was effective through a proprietary estopple and a constructive trust.

Sir Terence Etherton MR, Lloyd Jones LJ and Arnold J
[2016] EWCA Civ 1233
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 2(5)
England and Wales

Land, Contract, Equity, Estoppel

Updated: 26 January 2022; Ref: scu.572005

Brown v The Natural Resources Body for Wales: UTLC 17 Nov 2016

UTLC COMPENSATION – Water – house adjoining River Brenig – flood prevention works including increased height flood wall opposite property and requirement to install flood gate – comparable evidence and price graphs of limited assistance – compensation determined at andpound;5,000 – paragraph 5(1) of Schedule 21 to the Water Resources Act 1991

[2016] UKUT 514 (LC)
Bailii
Water Resources Act 1991
England and Wales

Land

Updated: 26 January 2022; Ref: scu.571761

University of Chester, Re: Land at Sandy Lane: UTLC 18 Oct 2016

UTLC RESTRICTIVE COVENANT – Modification – dilapidated university boathouse – planning permission for larger new community rowing facility – prohibition on trade or business – use restricted to gardens or pleasure grounds – height restriction – whether covenants obsolete – whether covenants secure practical benefits of substantial value or advantage – whether restriction contrary to the public interest – application dismissed – Law of Property Act 1925 s.84(1)(a),(aa)

[2016] UKUT 457 (LC)
Bailii
Law of Property Act 1925 84(1)(a) 84(1)(aa)
England and Wales

Land

Updated: 26 January 2022; Ref: scu.571437

Davie and Another, Re: 15 Arun Vale: UTLC 18 Oct 2016

UTLC RESTRICTIVE COVENANTS – discharge – modification – proposed erection of low brick wall – covenant prohibiting erection of wall or fence – whether covenants secure practical benefits of substantial value or advantage – whether injury caused to persons entitled to benefit of restrictions – application dismissed – Law of Property Act 1925 s.84(1)(aa), (c)

[2016] UKUT 462 (LC)
Bailii
Law of Property Act 1925 84(1)(aa) 84(1)(aa)(c)
England and Wales

Land

Updated: 26 January 2022; Ref: scu.571432

Mohammed and Others v Newcastle City Council: UTLC 31 Oct 2016

UTLC COMPENSATION – compulsory purchase – fish and chip shop – expert evidence following interim decision on facts – grossly exaggerated claim – substantial concessions in claimants’ closing submissions – open market value of freehold interest – no compensation for loss of profits in absence of reliable evidence – disturbance and other rule (6) losses – compensation determined at andpound;238,865

[2016] UKUT 415 (LC)
Bailii
England and Wales

Land, Damages

Updated: 26 January 2022; Ref: scu.571434

Barkhuysen v Hamilton: QBD 10 Nov 2016

Claims had been made between neighbours in the course of a long running neighbour dispute. In particular a claim was made of malicious prosecution as regards a complaint made to the police.
The claimant had ‘amply made out the third and fourth elements of this tort: the defendant made a false, entirely unfounded, and malicious accusation. That accusation set in train the actions of the police that followed: the claimant’s arrest and detention, the seizure of his property, the intimate sampling and other steps I have identified above. The defendant procured a criminal investigation of the claimant lasting several months.’
However, there was no prosecution for the purposes of the tort. Warby J explained: ‘All of that shows that there was a false arrest and false imprisonment thereafter, which were maliciously procured by the defendant. But in my judgment that is not enough to bring home the claim for damages for malicious prosecution. I accept Mr Samson’s argument that there was no ‘prosecution’ for the purposes of this tort. Ms Marzec submits that the underlying principle of the law of malicious prosecution is that an abuse of the process of the law that causes another injury is actionable; the key feature in considering whether there has been a ‘prosecution’ is whether the actions taken against the claimant were such as to cause him injury. She refers me to Churchill v Siggers (1854) 3 E and B 929, Mohamed Amin v Banerjee [1947] AC 322 at 331 (PC), Roy v Prior [1971] AC 470, 477-9 (HL) and the recent decision of the Supreme Court in Willers v Joyce [2016] UKSC 43. But in none of those cases was a mere arrest held to be actionable in the tort of malicious prosecution. Nor, in my judgment, does any of them stand as authority for any principle that would make a mere arrest so actionable. It is important not to treat passages in judgments, however high their authority, as tantamount to statutory wording.
The pleaded case for the defendant is that a prosecution begins when a person is charged. Mr Samson submits that this is too generous an approach. He argues that the authorities point to the conclusion that the malicious institution of proceedings before a judicial body is actionable in this tort, but not anything short of that. I agree, and add that the established rationale of the tort appears to be that compensation should be available for injury caused by a malicious abuse of the judicial power of the state. All of the cases cited above can be explained on this basis. See also the analysis of Sir Timothy Lloyd in Crawford v Jenkins [2014] EWCA Civ 1035 [2014] EMLR 25 [48]-[50].’ (emphasis added)

Warby J
[2016] EWHC 2858 (QB)
Bailii
England and Wales
Cited by:
See alsoBarkhuysen v Hamilton QBD 23-Dec-2016
. .
CitedCXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 25 January 2022; Ref: scu.571114

Dowley, Regina (on The Application of) v Secretary of State for Communities and Local Government: Admn 20 Oct 2016

Claim for judicial review of a decision on the part of the defendant to authorise the interested party to enter onto land for the purpose of site investigation prior to the construction of a new nuclear power station known as Sizewell C.

Patterson DBE J
[2016] EWHC 2618 (Admin)
Bailii
England and Wales

Land, Utilities

Updated: 24 January 2022; Ref: scu.570260

Trago Mills Ltd, Regina (on The Application of) v The Secretary of State for Communities and Local Government and Another: Admn 21 Jul 2016

The Claimant challenges the decision of the Examining Authority on behalf of the Defendant Secretary of State to refuse the Claimant’s application for an award of costs in securing the exclusion of part of its land from compulsory acquisition under the Cornwall Council (A30 Temple to Higher Carblake Improvement) Order 2015. The Examining Authority accepted – and it is now common ground – that the Claimant was a ‘successful objector’ in this respect, which is normally sufficient for a costs order to be made; but he refused to award costs on the basis that the application for costs was made later than the Secretary of State’s guidance required and there were no good grounds to exercise his discretion to extend that time.

Hickinbottom J
[2016] EWHC 1792 (Admin)
Bailii

Land

Updated: 20 January 2022; Ref: scu.567399

Khosrowpour v Mackay: SCS 1 Jul 2016

Extra Division, Inner House – ‘Hamid Khosrowpour (the pursuer) seeks damages from the estate of his late mother-in-law (the deceased) on the basis that she failed to honour an agreement that she would leave her house to him in her will. The pursuer offers to prove that in 1989 she agreed to do this in return for payment of andpound;8,000, which allowed her to exercise her right to purchase the house then tenanted by her from the local authority; andpound;800 being referable to legal costs, etc. ‘

Lord Malcolm
[2016] ScotCS CSIH – 50
Bailii

Scotland, Land, Trusts

Updated: 19 January 2022; Ref: scu.566806

Keay 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 that a contract which was void under the 1989 Act could, by acts amounting to a possible part performance of the purported contract, mature into a valid contract.

Laws, Rimer, Patten LJJ
[2012] EWCA Civ 900, [2012] WLR(D) 201, [2012] 2 EGLR 173, [2012] 2 P and CR 18, [2012] 1 WLR 2855
Bailii, WLRD
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
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 . .
CitedFirstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .
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. . .
CitedKilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
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 . .
CitedHelden v Strathmore Ltd CA 11-May-2011
The defendant appealed against an order finding valid a charge in favour of the claimant despite non-compliance with the 2000 Act.
Lord Neuberger MR said as to the 1989 Act: Section 2 is concerned with contracts for the creation or sale of . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 19 January 2022; Ref: scu.462519

Patten, Representatives of Richardson v Carruthers, Clerk, Dunbar, Dunbar: HL 24 Mar 1770

Power to Grant Leases of Mines – Implied Recall of Factory.-
Two persons acted in this country as trustees for a person abroad, owner of an entailed estate in Scotland. Their previous letters advised them to enter into agreements in regard to the lead mines on the estate, and that any such, entered into by them, would be affirmed and ratified by him. They entered into an agreement with the appellants for a lease of the mines of the estate, binding themselves, so soon as powers to that effect arrived from Antigua, to grant them a regular lease. On this agreement possession followed. These powers arrived; but, before the regular lease was granted, the owner’s affairs became embarrassed, and he sent home to Scotland his son with powers to raise money on his estate, either by lease, assignation, or conveyance of the same, and conferring on him power to grant deeds to that effect. The son granted letter agreeing to give a lease of the same mines to other parties; Held, reversing the judgment of the Court of Session, that the second factory was not meant as an implied revocation of the first, but was to be viewed only as a power to raise money on the estate, and that the trustees’ obligations remained good to grant a lease to the appellants in terms of the first agreement with them.

[1770] UKHL 2 – Paton – 238
Bailii
Scotland

Land

Updated: 13 January 2022; Ref: scu.561675

Bourne Leisure (Hopton) Ltd v Great Yarmouth Port Authority: UTLC 22 Feb 2016

UTLC COMPENSATION – Injurious affection – preliminary issues – whether compensation may be claimed for loss of beach and cliff caused by change in tidal flows as a result of construction of Great Yarmouth outer harbour – whether cost of sea defence works recoverable as compensation or claim is restricted to diminution in the value of land – whether claim time barred – claim allowed to proceed – s.4 Great Yarmouth Outer Harbour Act 1986 and s.10 Compulsory Purchase Act 1965

[2016] UKUT 44 (LC)
Bailii
England and Wales

Land

Updated: 10 January 2022; Ref: scu.560311

Davis (As Trustee In Bankruptcy of Jackson) v Jackson and Another: ChD 7 Apr 2017

W and H were at all times estranged. W bought a house, but later, in order to get a mortgage, it was put in their joint names. They later expressly declared equal interests. At no time did H either contribute to or live in the house. On H’s insolvency the claimant receiver sought a share of the house. W argued that this would amount to an unjust enrichment.
Held: ‘the effect of the express declaration of trust in the Trust Deed and the TR1 form was to vest a beneficial interest in property in Mr. Jackson. It is inherent in the nature of a proprietary interest in land that the owner of the interest can sit back and do nothing and yet still be entitled to benefit from any appreciation in the capital value of the property. Accordingly, it cannot be said that, without more, a beneficial co-owner of land who shares in the increased value of the land has thereby been unjustly enriched. The retention of such benefit would not be unjust, because it is what the owner of an interest in property is entitled to.’ and ‘the correct apportionment of the proceeds of sale of the Property would be first to split the net proceeds equally between the Trustee and Mrs. Jackson, and then to give Mrs. Jackson additional credit for one half of all the payments she has made under the mortgage(s) from the date the Property was purchased to the date upon which the Property is sold. There should be no credits in respect of other payments which Mrs. Jackson has made, and no debits in respect of her occupation of the Property.’

Snowden J
[2017] EWHC 698 (Ch), [2017] WLR(D) 264
Bailii, WLRD
England and Wales

Land, Trusts

Updated: 10 January 2022; Ref: scu.581730

Target Holdings Ltd v Priestley and Another: ChD 8 Apr 1999

An oral contract by which a lender agreed to accept repayments of arrears under a mortgage at a certain rate was valid in law despite non-compliance with the section. It was however a contract of disposition, not an executory contract and not caught. A compromise of repayments under a mortgage was valid despite lack of formality.

Gazette 08-Apr-1999, Gazette 06-May-1999, Times 13-May-1999
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales

Land, Contract

Updated: 09 January 2022; Ref: scu.89710

Lovat v Emilia Lady Dowager of Lovat Mackenzie an Infant and Others: HL 1 Apr 1721

A disposition is made of an estate to one person in life-rent, and to others in fee, with the burden of payment of the grantor’s debts: in a competition between the grantee of the life-rent escheat of the life-renter, and the debtors of the grantor of the disposition, the Court found that these debts were real, and did affect the estate; but their judgment is reversed.
A grantor of a deed declares, that if children’s portions are not paid in his lifetime, persons whom he names may appoint a factor, after his death, to receive certain rents, and pay these portions: these portions were real debts affecting the estate

[1721] UKHL Robertson – 355
Bailii
Scotland

Land

Updated: 05 January 2022; Ref: scu.553669

Menzies v Menzies, Sisters and Muir Merchant In Aberdeen: HL 25 Jul 1715

Sale – A person who had purchased lands at a public sale, at 20 years purchase of a proved rental, afterwards claims deductions; 1st, Because the teinds were held by a tack from the College of Aberdeen then near expired; 2d, Because, as he alleged, the rental was too highly stated by one Chalder; 3d, Because he was kept out of his purchase for six years, during which time the person in possession only accounted for the rents, which were less than the interest the price; 4th, A deduction of certain expences he had been put to, in adjusting the debts due by the estate and in the person of the last possessor thereof. The Court having refused these deductions, and allowed the fetters 30 l. of expences, the judgment is affirmed.
In this case the purchaser had been employed as agent to conduct the sale, proof of rental, andc.

[1715] UKHL Robertson – 139, (1715) Robertson 139
Bailii
Scotland

Land

Updated: 04 January 2022; Ref: scu.553484

Trailer and Marina (Leven) Ltd, Regina (ex parte) v Secretary of State for the Environment, Food and Rural Affairs and Another: CA 15 Dec 2004

The claimant sought a declaration that the 1981 Act, as amended, interfered with the peaceful enjoyment of its possession, namely a stretch of canal which had been declared a Site of Special Scientific Interest, with the effect that it was unusable. It had come to be a habitat for wildlife, and the order prevented the claimant using the canal for leisure purposes.
Held: Where the interference was short of an expropriation, but was a substantial interference in the use of property, the court had to find a fair balance between private rights and the public interest. The court had to give appropriate deference to the decisions of the legislature. Provided the legislature thought it right to interfere with use right without compensation, a fair balance would have been struck. The Act had been amended to take away compensation rights. The Act was not inherently incompatible with property rights. It did not prevent all use and was not a disguised expropriation.

Lord Phillips Of Worth Matravers MR, Lord Justice Sedley and Lord Justice Neuberger
[2004] EWCA Civ 1580, Times 28-Dec-2004
Bailii
Wildlife and Countryside Act 1981, European Convention on Human Rights A1P1
England and Wales
Citing:
Appeal fromTrailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature QBD 6-Feb-2004
The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human . .
CitedSporrong 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 (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 . .
CitedPapamichalopoulos and Others v Greece ECHR 24-Jun-1993
Expropriation notices, which were eventually withdrawn, constituted neither deprivation of property nor control of use, but ‘The fact that the permits fell within the ambit of neither of the second sentence of the first paragraph nor of the second . .
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 . .
CitedAllan 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 . .
CitedSouthern Water Authority v Nature Conservancy Council HL 9-Sep-1992
That a Water Authority was digging a ditch was not a sufficient connection with the land to make them occupiers and capable of committing an offence as occupiers. The statutory provisions were toothless for ‘it needs only a moment to see that this . .
CitedBaner v Sweden ECHR 1989
The applicant owned land with lakes which were fished by his household and employees; the public were not allowed to fish. New legislation permitted licence-free fishing by everyone. Many more people came to the beaches and fished the lakes; there . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedMellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
CitedS v France ECHR 1990
The Commission, dealing with admissibility, pointed out that noise nuisance could be so severe as to amount to a partial expropriation where it rendered a property unsaleable or unusable, severely affecting its value. Where substantial compensation . .

Cited by:
CitedMott, Regina (on The Application of) v The Environment Agency and Another Admn 13-Feb-2015
The claimant challenged new conditions imposed on licences to operate his salmon fishery in the Severn Estuary, which operated to defeat his tenancy of the fishery.
Held: The request for review succeeded. The decisions to impose the catch . .
CitedMott, Regina (on The Application of) v Environment Agency and Another CA 17-Jun-2016
The applicant challenged restrictions on salmon fishing imposed by the respondent. At first instance they were held to be irrational, and the Agency appealed.
Held: The Regulations were not irrational and that element of the appeal succeeded, . .
CitedMott, Regina (on The Application of) v Environment Agency SC 14-Feb-2018
The Court considered the legality under the European Convention on Human Rights of licensing conditions imposed by the Environment Agency restricting certain forms of salmon-fishing in the Severn Estuary. The claimant operated a licensed putcher . .

Lists of cited by and citing cases may be incomplete.

Land, Human Rights

Updated: 04 January 2022; Ref: scu.220353

Trailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature: QBD 6 Feb 2004

The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human rights.
Held: The procedures did allow some development subject to controls. It was not right to view environmental protections as of lesser importance than other social values: ‘nature conservation interests and SSSIs are an important aspect of what can be seen as social policy.’ The legislation and arrangemnts for compensation were compliant.

The Honourable Mr Justice Ouseley
[2004] EWHC 153 (Admin), Times 19-Feb-2004
Bailii
Wildlife and Countryside Act 1981 29 30 31 32
England and Wales
Citing:
CitedSporrong 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 . .
CitedFisher and Another v English Nature Admn 4-Jul-2003
The claimants were trustees of land. The Respondent had notified the Secretary of State that they considered that part of the land satisfied the criteria to be certifed as being of special scientific interest. They now intended to confirm the . .
CitedAllan 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 . .
CitedOerlemans v The Netherlands ECHR 27-Nov-1991
Land was designated as ‘a protected natural site’, the effect of which was that agricultural activities could continue but that if the owner wished to alter or intensify the use of the land or to make certain changes in agricultural practices, . .
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 . .
CitedSecretary of State for the Home Department v International Transport Roth Gmbh and others CA 22-Feb-2002
The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The . .
CitedBaner v Sweden ECHR 1989
The applicant owned land with lakes which were fished by his household and employees; the public were not allowed to fish. New legislation permitted licence-free fishing by everyone. Many more people came to the beaches and fished the lakes; there . .
CitedTre Traktorer Aktiebolag v Sweden ECHR 7-Jul-1989
An alcohol licence for a restaurant was withdrawn with immediate effect because of financial irregularities, with the result that the restaurant business collapsed.
Held: ‘The government argued that a licence to sell alcoholic beverages could . .
CitedS v France ECHR 1990
The Commission, dealing with admissibility, pointed out that noise nuisance could be so severe as to amount to a partial expropriation where it rendered a property unsaleable or unusable, severely affecting its value. Where substantial compensation . .
CitedFredin v Sweden ECHR 18-Feb-1991
A gravel pit licence was revoked without compensation pursuant to legislation brought in after the owner had acquired the pit but before it had begun to exploit it. The actual revocation took place after the pit had been exploited for a number of . .
CitedChassagnou and Others v France ECHR 29-Apr-1999
A law permitted local authorities to oblige landowners to transfer hunting rights over private land to approved hunting associations. The landowners could not prevent hunting on their property. Landowners so affected were made members automatically . .

Cited by:
Appeal fromTrailer and Marina (Leven) Ltd, Regina (ex parte) v Secretary of State for the Environment, Food and Rural Affairs and Another CA 15-Dec-2004
The claimant sought a declaration that the 1981 Act, as amended, interfered with the peaceful enjoyment of its possession, namely a stretch of canal which had been declared a Site of Special Scientific Interest, with the effect that it was unusable. . .

Lists of cited by and citing cases may be incomplete.

Land, Human Rights

Updated: 04 January 2022; Ref: scu.192663

Port of London Authority v Devere and 7 Others – 0733-0755: LRA 27 Feb 2013

LRA Rivers, Waterways and Foreshore – Trial of a preliminary issue as to whether the Applicant can establish documentary title to part of the bed and foreshore of the River Thames; the ‘ad medium filum’ rule; true construction of the words ‘in front of or immediately adjacent to’; Port of London Act 1908, sections 1, 7; Port of London Act 1912; Port of London Act 1968, section 212, and Schedule 11; Thames Conservancy Act 1857, sections 50, 51; Thames Conservancy Act 1894, sections 58, 59; Port of London (Consolidation) Act 1920, section 7; Crown Lands Act 1702, section 5; Crown Lands Act 1853, section 5; Crown Lands Act 1829, section 8; Law of Property Act 1925, section 62(3); Poor Law Amendments Act 1868, section 27;

[2013] EWLandRA 2011 – 0733-0755
Bailii
England and Wales

Registered Land, Land

Updated: 03 January 2022; Ref: scu.550827

Bagum v Hafiz and Another: CA 22 Jul 2015

The land owner appealed from an order of the court as to land held under a co-ownership arrangement between three people. The order was for the sale of the property with the first option being given for the purchase of the property. It was said that the court had no jurisdiction to make such an order under the 1996 Act.
Held: The judge had been correct to make the order and it was within the wide discretion given by the Act.

Lord Dyson MR, Briggs, Bean LJJ
[2015] EWCA Civ 801, [2015] WLR(D) 329, [2015] 3 WLR 1495, [2016] Ch 241, [2015] Fam Law 1192, [2015] CP Rep 44, [2015] WTLR 1303
Bailii, WLRD
Trusts of Land and Appointment of Trustees Act 1996
England and Wales

Trusts, Land

Updated: 02 January 2022; Ref: scu.550492