Land Subject to Trust

December 23rd, 2020 by James Goudie QC in Land, Goods and Services

Local authority open space land is held for the purposes of public recreation, public access and public enjoyment pursuant to the Public Health Act 1875 and the Open Spaces Act 1906. The land is held subject to a statutory trust for those purposes. It is not however a trust in the usual private law sense. The land and the trust are inseparable.

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Charitable Trust

June 8th, 2020 by James Goudie QC in Land, Goods and Services

Brent LBC v Johnson (2020) EWHC 933(Ch) holds that an argument that a local authority is not free to sell a property that it owns because it is held on charitable trust for the local community can be advanced only in proceedings to which the Attorney General is party.

 

Registration of Common Land

April 23rd, 2020 by James Goudie QC in Land, Goods and Services

The phrase “ the curtilage of a building” in the Commons Act 2006 requires the land in question to form part and parcel of the building to which it is related. The correct question is whether the land falls within the curtilage of the building , not whether the land together with the building fall within, or comprise, a unit devoted to the same or equivalent function or purpose. So held by Holgate J in Hampshire County Council v SoS for DEFRA (2020) EWHC 959 (Admin), especially at paras 127 and 132.

 

Appropriation of Allotment Land

February 19th, 2020 by James Goudie QC in Land, Goods and Services

On 13 May 2019 this Bulletin noted the decision in R (Adamson) v Kirklees MBC, in which an allotment holder’s claim succeeded, on the basis that the land had been appropriated for use as allotments, within Section 8 of the Allotments Act 1925.

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Overlooking

February 14th, 2020 by James Goudie QC in Land, Goods and Services

Fearn v Tate Gallery (2020) EWCA Civ 104 raises important issues about the application of the common law cause of action for private nuisance to overlooking from one property to another, and the consequent invasion of privacy of those occupying the overlooked property. The Court of Appeal held that (1) mere overlooking is not capable of giving rise to a cause of action for private nuisance: paragraphs 74 and 85; and (2) there is no sound reason to extend the common law tort of private nuisance to overlooking in the light of ECHR Article 8: paragraph 95.

 

Public Open Space

January 14th, 2020 by James Goudie QC in Land, Goods and Services

In R (Day) v Shropshire Council and Shrewsbury Town Council (2019) EWHC 3539 (Admin) Lang J held that land (1) was open space, distinguishing  Whitstable Society v Canterbury City Council (2017) EWHC 254 (Admin), (2) was subject to a statutory trust under the Public Health Act 1875 and the Open Spaces Act 1906, following R (Friends of Finsbury Park) v Haringey LBC (2018)  P.T.S.R. 644, and (3) had not been validly appropriated to any other use.  The requirement therefore applied under Section 123(2A) of the Local Government Act 1972 (“LGA 1972”) to advertise a proposed disposal of any part of the land and to consider objections. This the Town Council had failed to do.  However, the public rights could not be enforced against a buyer. The legal effect of a disposal is governed by LGA 1972, Sections 128 and 131, not by the private law of trusts. Lang J said, at paragraph 116:-

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Village Greens: “Statutory Incompatibility”

December 12th, 2019 by James Goudie QC in Land, Goods and Services

In linked appeals R (Lancashire County Council) v SoS for DEFRA and R (NHS Property Services Ltd) v Surrey County Council (2019) UKSC 58, the Supreme Court was primarily concerned with the issue whether the concept of “statutory incompatibility” applies to prevent land from being registered as a village green where it is held for general statutory purposes.

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Equitable relief from forfeiture

October 24th, 2019 by James Goudie QC in Land, Goods and Services

On the banks of the Manchester Ship Canal, Vauxhall Motors has a large manufacturing plant. It drains surface water and treated industrial effluent into the Canal. It does so pursuant to a licence from the Canal Company. This is a valuable right, similar to an easement. It is terminable if Vauxhall are late in their payment of the licence fee.  Inadvertently, Vauxhall was late with one instalment. The Canal Company terminated the Licence. Vauxhall asked the High Court to grant equitable relief from forfeiture. Relief was granted. The Court of Appeal upheld the grant of relief: (2018) EWCA Civ 1100.  The position has now been addressed by the Supreme Court, who have unanimously dismissed the Canal Company’s appeal: (2019) UKSC 46, especially from paragraph 35, per Lord Briggs. Read more »

 

Residential Leasehold Management Duty

June 4th, 2019 by James Goudie QC in Land, Goods and Services

In Newham London Borough Council v Samson Estates Ltd (2019) UKUT 110 (AAC) the Council appealed successfully against a FTT decision that an estate agent was not in breach of its above duties.  The issue arose under Section 84 of the Enterprise and Regulatory Reform Act 2013 and the Redress Scheme for Letting Agency Work and Property Management Work etc Order 2014.  The Order requires a person engaged in property management to be a member of an approved redress scheme for dealing with complaints in respect of that work. The Council is an enforcement authority. The UT held that the person so engaged had to be a member of a redress scheme for all categories of property management work in which they were engaged: paragraph  19 (Judge Levenson).

 

Development Plan and TVG

May 20th, 2019 by James Goudie QC in Land, Goods and Services

The issue in Wiltshire Council v Cooper Estates Strategic Land Ltd (2019) EWCA Civ 840 was what it takes in a development plan document to identify land for potential development. If land is so identified, the right to apply for registration of a town or village green (a “TVG”) is suspended.

The reference to the “development plan” now includes development plan documents, and neighbourhood plans: Planning and Compulsory Purchase Act 2004 Section 38 (3). A neighbourhood plan must be in general conformity with the strategic policies contained in the development plan for the area: Town and Country Planning Act 1990 Schedule 4B paragraph 8 (2) (e). But it need not slavishly adopt every detail. Once made, a neighbourhood plan becomes part of the statutory development plan. The importance of development plan documents is stressed in the National Planning Policy Framework. Read more »