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.

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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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.

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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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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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 »

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).

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 »

The main issue in R (Adamson) v Kirklees MBC (2019) EWHC 1129 (Admin) was whether the Council was obliged to obtain the consent of the Minister before deciding to dispose of certain land in its area currently in use as allotments by the claimant and others. That depended on whether the Council had “appropriated” that land for use as allotments, within Section 8 of the Allotments Act 1925, as amended. If it had, it could not dispose of the land without the consent of the Minister. The Council had not applied for such consent.

The Council wanted to use the land as part of the site of a new primary school it has decided to build. Mr Adamson is in favour of the new primary school but says it should not include the allotment land, unless the Minister agrees to that. He wishes to put the case to the Minister that the primary school site should be differently arranged so as to spare the allotment land. He and his fellow allotment holders were not satisfied with alternative allotment land offered to them by the Council.

Kerr J held that:-

1. There is no required formal procedure for appropriation: paragraph 113;
2. Whether appropriation occurred was a fact sensitive evaluation: paragraph 114;
3. A considered and conscious decision had been taken, recorded in committee minutes, that the land should be zoned for use as allotments: paragraph 115;
4. The appropriation issue must be determined in favour of Mr Adamson: paragraph 126; and
5. The claim succeeded: paragraph 153.

In Earl of Plymouth v Rees (2019) EWHC 1008 (Ch) the Court set out the interpretation principles applicable to a clause in a lease that reserved rights to the landlord, as follows:-

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