Recovery of Possession

July 12th, 2021 by James Goudie QC in Land, Goods and Services

Lambeth LBC v Grant (2021) EWHC 1962 (QB) concerns a claim by the Council as freehold owner of Clapham Common. Part of the Common has been occupied by individuals known and unknown. They have set up a camp. The camp has generated complaints from local residents. By this action the Council sought to recover possession of its land. It was held that the Council was entitle to an order for possession.
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Pension Fund Consequences of TUPE Transfers

May 27th, 2021 by James Goudie QC in Land, Goods and Services

When a local authority enters into a contract for services with a body that is admitted to the LGPS terms may be agreed with respect to pension risk. R (Enterprise Managed Services Ltd ) v SoS for MHCLG and Northamptonshire Councils (2021):1436 (Admin) concerns when the contract comes to an end and the contractor/employer exits the LGPS and there is a deficit in relation to the liability to pay benefits.

In this context the LGPS Regulations have been amended. Bourne J holds that the amendments are lawful. They are not invalidated as being unjustifiably and unlawfully retroactive and retrospective, contrary to any of common law, ECHR Arts 6, 14 and 1/1, or EU State Aid provisions.

 

Proprietary Estoppel

March 30th, 2021 by James Goudie QC in Land, Goods and Services

A claim for possession of land may be defeated by a proprietary estoppel that is satisfied by an irrevocable licence for life, even when a contract for the sale of the land had been oral. The requirements of Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 probably did not affect proprietary estoppel, especially when the relief sought was not to enforce the contract. So held by Snowden J in Howe v Gossop (2021) EWHC 637 (Ch).

 

TVG

February 12th, 2021 by James Goudie QC in Land, Goods and Services

TW Logistics Ltd v Essex County Council (2021) UKSC 4 raised important issues about the law relating to Town and Village Greens under the Commons Act 2006, a much wider concept (para1) than the traditional village green, with registration having (para 2) important legal consequences. The central question on the unsuccessful appeal was whether registration in this case, under Section 15 of the Act, would have the consequence that the continuation of the landowner’s pre-existing commercial activities would be criminalised.

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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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