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The Judicial House of Lords 1876–2009$

Louis Blom-Cooper QC, Brice Dickson, and Gavin Drewry

Print publication date: 2009

Print ISBN-13: 9780199532711

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780199532711.001.0001

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Land Law

Land Law

Chapter:
(p.684) 37 Land Law
Source:
The Judicial House of Lords 1876–2009
Author(s):

Derek Wood

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199532711.003.0043

Abstract and Keywords

This chapter focuses on the role of the House of Lords in relation to land law. It argues that the House has always responded energetically and purposefully to new legislation. Analysing the policy underlying an Act of Parliament, carrying it into effect, and setting appropriate boundaries have been its main areas of activity. The large areas of law and practice which lie outside social or economic policy have benefited at most from sporadic raids. The answers to many practical problems in those areas still lie in the decisions of the lower courts, and the textbooks.

Keywords:   House of Lords, English law, land law, landlords, tenants, conveyancing and mortgages, land charges, land registration

Introduction

Land law has a direct impact on the personal, business, and public lives of the nation. Flats are let. Homes are bought and sold. The construction and occupation of commercial property is underpinned by leasing. Much of the surface of the United Kingdom is covered by farmland. The letting and use of agricultural property are both regulated and encouraged by law. Development is strictly controlled by local authorities and central government.

Until the nineteenth century land law was the province of the common law, moderated in its earliest history by medieval statute and in later centuries by the development in the Courts of Chancery of the rules and doctrines of equity. Since the Victorian age land law has attracted increasing attention from Parliament. The beginnings were modest: the compulsory acquisition of land for canals and railways, driving the industrial revolution; some protection for Scottish and English farmers; a start on the tidying-up of conveyancing. The First World War brought in the Rent Acts. The many facets of Lord Birkenhead's 1925 property legislation created new platforms for practice, and continuing reform. The Landlord and Tenant Acts of 1927 and 1954 gave important rights to business tenants. From 1947 to 1995 statutory codes were introduced to regulate the letting of farms. The Town and Country Planning Act 1947 and its successors have revolutionised the way in which we are able to use or develop land. Entirely new professional specialisms have grown up in the wake of planning and compulsory purchase legislation. Leases and tenancies of public and private housing are still in the grip of complex statutory codes.

The House of Lords in its judicial capacity has not been frequently sighted in these big landscapes. There are, without question, landmark decisions. But they are few. The Digests of the Official Law Reports, beginning in 1865 with the HL (p.685) and App Cas series of reports, some 12 years before the Appellate Committee was established, provide a good snapshot of the volume of activity in this field in our highest appeal court. The table below lists the main topic headings of interest to property lawyers. With some re-titling and re-classification, and a small amount of double-counting, the numbers of real property cases heard in the House of Lords and officially reported are shown against each category.

(The table does not include cases of land transactions which exemplify more general principles of law, such as fraud, duress, or undue influence. Nor does it include Scottish appeals, some of which are discussed below.)

1865-1950

1950-2008

Agricultural holdings

1

5

Compulsory purchase

20

17

Easements

12

1

Land charges/registration

0

8

Landlord and tenant

41

62

Licence/tenancy

0

5

Limitation (including adverse possession)

9

2

Mines and minerals

26

0

Mortgages (land only)

15

2

Planning

1

40

Proprietary estoppel

1

1

Restrictive covenants

0

2

Specific performance (land only)

1

1

Vendor and purchaser

13

5

Conveyancing and mortgages

Sale of land

Conveyancing probably accounts for more legal business, at least in terms of quantity of transactions, than any other type of work. Inevitably some disputes reach the courts. During the period of this review they have overwhelmingly been disposed of at first instance by the judges of the Chancery Division. Relatively few have progressed to the Court of Appeal, far fewer to the House of Lords.

One probable explanation is that the sale and purchase of land, and any disputes, must be settled quickly. Chancery procedures have on the whole helped parties in a hurry. The appeal processes do not. In addition the Chancery judges have an expertise in land law which makes them a particularly reliable specialist tribunal; and it is said that the House of Lords is traditionally reluctant to entertain challenges to settled conveyancing practice.

(p.686) MEPC v Christian-Edwards, 1 described in his speech by Lord Russell as ‘a curious case’, is a rare example of a dispute in which it was worth the parties’ while to pursue over more than two years, no doubt in a falling market, the question whether an anxious vendor could require a reluctant purchaser to accept a title which the purchaser (wrongly) said was defective.2 Otherwise the leading cases in the field have been concerned with questions of damages for breach of contract, after the issue of completion or non-completion has faded away.

The long-lived but finally ill-fated rule in Bain v Fothergill, 3 which excluded purchasers whose vendors could not show a good title from claiming damages for breach of contract, restricting them to recovery of their deposit and legal expenses, was described by Balcombe LJ in the Court of Appeal4 as ‘impossible to justify,’ serving ‘no useful purpose anywhere in England or Wales’. It was finally abolished in 1989.5

Of much greater stature and importance are the decisions in Johnson v Agnew  6 and Rainieri v Miles, 7 which in their different ways placed contracts for the sale of?land firmly into the main stream of general contract law. In Johnson Lord Wilberforce addressed a confusion in law which was

due partly to the mystification which has been allowed to characterise contracts for the sale of land, as contrasted with other contracts, partly to an accumulated debris of decisions and text book pronouncements which has brought semantic confusion and misunderstanding into an area capable of being governed by principle.

It was held that where a vendor obtains an order for specific performance which is not complied with, the contract remains alive and the vendor has not lost the right to return to the court for an award of damages. Whether awarded at common law or under Lord Cairns’ Act the measure of damages would be the same.

The speeches of Lords Edmund Davies and Fraser in Rainieri were powerful enough to persuade Lord Russell to abandon his own draft.8 They follow the decision in Stickney v Keeble9 and are a—the—text-book analysis of the effect at common law and in equity of a contract to complete a sale and purchase on a stated date, time not being of the essence. If one of the parties fails to complete on the date stated in the contract, damages are recoverable at common law even though either party—‘even the contract-breaker’—can specifically enforce the contract at a later date; and the entitlement to common law damages is not affected by a notice to complete making time of the essence of a later completion date.

(p.687) Mortgages

Six cases of major importance on mortgages span the period from 1892 to 1914.10 Collectively these decisions set limits to the ability of mortgagees of land or other assets to exploit their superior bargaining position by keeping the borrower in debt for commercial purposes which go beyond protection of the security—‘clogging the equity of redemption’. A variant of this topic was explored in Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd. 11 The Appellate Committee did not look at mortgages again until it heard the case of a statute-barred debt in 2005.12

Easements and restrictive covenants

Until the recent decisions in Bakewell Management Co v Brandwood13 and the Scottish case of Moncrieff v Jamieson 14 the House of Lords had not considered any case on easements for many years. The seminal decision on the acquisition of easements in Dalton v Angus, 15 under the ancien régime, was essentially the product of the advice of the judges. Home and Colonial Stores v Colls 16 set the standard for actionable interference with rights of light. The remaining private law cases were concerned with the question of what rights could be implied as ancillary or reasonably necessary to an express grant. In Pwllbach Colliery Co Ltd v Woodman 17 the Appellate Committee rejected a claim by a colliery that it had acquired under its sub-lease an implied easement to commit a nuisance by spreading coal dust to a neighbouring tenant, who took his lease subject to all existing rights and easements. In the absence of proof that the business could not be carried on otherwise, a right to commit this nuisance could not be regarded as reasonably necessary for the enjoyment of rights granted by the head lessor. The discussion in Moncrieff returned to this question. It was held that the grant of a servitude of access by vehicles carried with it, in the unusual circumstances of the case, an ancillary right to park, which was necessary for the comfortable use and enjoyment of the right granted. Lord Rodger considered it necessary for the effective use of the servitude.

(p.688) The rules for the acquisition of easements and similar rights arising out of private law transactions do not apply in the case of compulsory purchase. In Sovmots v Secretary of State for the Environment 18 it was held that a local authority which wished to acquire compulsorily empty maisonettes in the upper floor of an office building could not take advantage of the rule in Wheeldon v Burrows 19 or section 62 of the Law of Property Act 1925 and acquire by implication easements which were necessary for the enjoyment of the flats.

There is no corresponding decision anywhere on restrictive covenants, which is all the more surprising because (section 84 of the Law of Property Act 1925 apart)20 they comprise a substantial body of law which is entirely judge-made, founded on principles of equity developed as recently as the mid-nineteenth century.21 These covenants affect much of the development which was carried out in the first half of the twentieth century. The state of the law as it had been developed by the lower courts was however accepted by Lord Templeman in his speech in Rhone v Stephens, 22 in which he held that, in contrast with restrictive covenants, the burden of positive covenants does not generally run with land. Lord Wilberforce, whose interests as a racegoer were well known, would not have taken pleasure in forming part of the minority in the Aintree racecourse case23 in which it was held that a covenant ‘not to cause or permit’ land to be used otherwise than for the purpose of horse racing and agricultural purposes would not be broken by an owner selling the land to a third party for housing development, even though the purchaser's intentions were fully publicised.24 Happily the development never took place.

Land charges and land registration

One of the intended outcomes of the 1925 reforms was that matters affecting title to land should be registered and accessible to purchasers, mortgagees, and other interested third parties. In the case of unregistered land, an incumbrance capable of being registered as a land charge under the Land Charges Act 1925 would not bind a third party if it had not been registered, even if that party had actual knowledge of it. Incumbrances on registered land, to be binding, had to be entered on the register of title. But to this there were exceptions. The rights of persons in actual occupation at the date of the transaction were also preserved, even if unregistered.25

(p.689) These rules have been put to the test in six cases in the House of Lords. In the case of unregistered land the law according to Lord Wilberforce in Midland Bank Trust Co Ltd v Green 26 is plain. A father granted his son an option to purchase a farm of which the son was tenant. The son's solicitor failed to register the option as a charge. Later the father sold the farm, now worth about £40,000, to his wife for £500. She knew of the option; but the sale was for valuable consideration and it overrode the son's interest. The mother was not acting fraudulently in taking advantage of a mandatory system of registration which left the son vulnerable.

Where title to land was registered the rights of persons in actual occupation had to be addressed. In National Provincial Bank v Ainsworth 27 it was held that the rights asserted must be proprietary, not merely personal. Rejecting suggestions in the lower courts that there might be ‘a deserted wife's equity’ it was held that a wife's right to occupy the matrimonial home is personal, arising from her status, and will not bind a mortgagee.28

In contrast, contributing to the purchase price (or, as it has been held in later cases, helping with mortgage payments or paying for improvements) will advance the status of the wife or other occupier to the position of beneficial tenant in common with the legal estate owner: Williams and Glyn's Bank Ltd v Boland, Same v Brown. 29 This was held to give rise to a right covered by section 70(1)(g). The decision in Boland had a profound effect on conveyancing practice, resulting in (among other things) far more careful inquiries by mortgagees lending to individuals. More comfort for lenders was derived from the decision in City of London Building Society v Flegg. 30 Where the legal estate was held on trust for sale by two or more trustees, the rights of beneficial owners would be overreached under section 27 of the Law of Property Act 1925, and converted from a proprietary right into an interest in the proceeds of sale.

In two further cases—Abbey National Building Society v Cann 31 and Lloyds Bank plc v Rosset32—the Appellate Committee has examined more closely what is required to establish actual occupation. It must exist at the date of completion of the disposition (purchase or mortgage). If it is delayed until the date of registration of the interest it is too late. In Cann it was also held that acts preparatory to taking up occupation, such as carpet-laying and moving in furniture, were not ‘occupation’ within the meaning of section 70(1)(g). In Rosset it was emphasised that contributions in kind, such as carrying out home decorating or making improvements, as opposed to pecuniary contributions, were not enough to create the type of beneficial interest discussed in Boland.

Improvements in conveyancing practice and these later decisions may have rendered Boland less alarming to lending institutions than first appeared. But (p.690) Lord Wilberforce stated in Boland that the principle was not limited to wives, and in Barclays Bank plc v O'Brien Lord Browne-Wilkinson pointed out that ‘unmarried cohabitation, whether heterosexual or homosexual, is widespread in our society’ and that ‘the law should recognise this’.33 The reasoning in Stack v Dowden 34 (equities arising from ownership of a home held in joint names by unmarried partners) also highlights the continuing importance of Boland.

Landlord and tenant

Common law

The common law of landlord and tenant was given its shape by Sir Edward Coke in his great Commentary upon Littleton (Co Litt) which was published in 1628. The early editions of the nineteenth century textbooks—Woodfall and Foa—faithfully follow the form and much of the content of Co Litt. The Appellate Committee has continued to cast light on some persistent common law questions.

Rye v Rye35 addressed the question whether a person can be landlord and tenant of the same property: not as beneficial owner. Lord Denning in St?Maryle?bone Property Co Ltd v Fairweather 36 and Lord Millett in Barrett v Morgan 37 both invoked Coke to explain the doctrine of surrender of leases, Lord Millett distinguishing it from a tenant's notice to quit. In Prudential Assurance Co v London Residuary Body  38 Coke provided the basis for the decision that a tenancy for a term of uncertain duration is void.

In National Carriers Ltd v Panalpina (Northern) Ltd 39 the Committee revisited its earlier hesitations in Cricklewood Property and Investment Trust Ltd v Leighton Investment Trust Ltd 40 and held by a majority that the doctrine of frustration applies to leases, preferring ‘hardly ever’ to ‘never’. The question whether a lease can be repudiated was the subject of a lively public debate between Neuberger J (as he then was) and Lord Millett in 200041 but has not yet reached the highest court.

Into a dark area of law in which important rights and obligations may critically depend on the service of procedural notices some daylight has penetrated. Lord Diplock's controversial analysis of the fusion of law and equity in United Scientific Holdings Ltd v Burnley Borough Council  42 produced a decision that time is not of the essence for serving a notice triggering a rent review at a stated date, unless the parties say so, or the lease contains express indications to the contrary. In Mannai (p.691) Investment Co Ltd v Eagle Star Life Assurance Co Ltd 43 it was held that a right, exercisable by formal notice, to break the term of a lease on a stated date could be validly exercised by a notice which gave the wrong date if ‘the reasonable recipient’ of the notice, as Lord Steyn put it, would know what was intended.44

Statute

The bulk of the digested cases are the product of statutory interference with the common law, which Parliament over a long period has thought to be over-protective of the interests of landlords. The reach of statutory intervention has been comprehensive: homes, business premises (very widely defined), and farmland. The law has changed again and again, and many of the reported decisions are concerned with the meaning of provisions long since repealed. But some big and lasting themes can be picked out.

First, the House of Lords has been unwilling to accept the argument that property statutes passed to protect tenants, or serve some other social purpose, should be construed restrictively to minimise their impact on vested property rights. The consistent aim has been to understand and carry into effect the policy underlying the statute.45

Secondly, and closely connected with that, the House of Lords does not like attempts at avoidance. The sentiment against avoidance goes back a long way. In the Scottish case of Cathcart v Chalmers 46 it was held that a clause in an agricultural lease depriving the tenant of statutory compensation was void. In Elmdene Estates Ltd v White47 an attempt by a landlord to avoid the prohibition on charging a premium on the grant of a rent-controlled tenancy by requiring the tenants to sell their present house at an under-value to a third party, as a condition of the grant, received scathing criticism. But the speeches in these cases do not match the eloquence of Lords Salmon and Hailsham, invoking memories of national food shortages in the Second World War, in Johnson v Moreton,48 in which a clause in an English agricultural lease aimed at depriving the farmer of security of tenure was held to be contrary to public policy.

The task of unravelling the meaning and purpose of an Act, especially in the ever-changing field of housing law, has produced important statements on the very exercise of statutory interpretation. Lord Simon's speeches in Maunsell v Olins  49 and Farrell v Alexander 50 are mature reflections on the process of (p.692) statutory drafting by an outstanding lawyer who served as MP and Law Officer as well as judge. The highest court of appeal is now occupied exclusively by judges who have not had hands-on experience in Parliament. The influence of other parliamentarians on the interpretation of statutes passed in their time in government51 deserves further study.

Street v Mountford

The decision in Street v Mountford 52 can also be looked at through the lens of anti-avoidance. Since the Rent Acts and their replacements, and Part II of the Landlord and Tenant Act 1954, have only protected tenants strictly so-called,53 landlords have been tempted to induce tenants to sign documents declaring them to be no more than licensees. The type of agreement offered has been a far cry from the Appellate Committee's first and definitive discussion of licences in Winter Garden Theatre (London) Ltd v Millennium Productions Ltd.54 The device was finally scotched by Lord Templeman in Street v Mountford. He held that the grant of exclusive possession for a term at a rent creates a tenancy. The decision has generated a substantial literature. It was distinguished in AG Securities v Vaughan,55 followed in Antoniades v Villiers,56 and more controversially followed in Bruton v London and Quadrant Trust. 57 The Trust was held to be ‘landlord’ even though it had no legal title to the property, but was a licensee only. For its clear and simple explanation of the nature of tenancy the decision in Street v Mountford probably stands as the most important leading case in this branch of the law.

Landlord and Tenant Act 1954, Part II

In the more technical field of statute law the legislation which has received the most enduring attention from the House of Lords is Part II of the 1954 Act, conferring a statutory right on business tenants to claim a new tenancy at the end of the current tenancy, subject to certain limited grounds of refusal. Between 1956 and 1996, 13 decisions were handed down on different provisions of this far-reaching Act. They include its application to tenancies at will;58 the concept of ‘occupancy’ for business purposes;59 the terms on which any new tenancy should be granted;60 the nature and timing of the ‘intention’ to redevelop or occupy the tenant's premises which a landlord must prove to defeat a claim for a new (p.693) tenancy;61 and the ability of parties to waive or otherwise overcome some of the procedural rigidities built into the Act.62 The decision in Re ‘Wonderland’ Cleethorpes 63 exposed shortcomings in the formula for calculating compensation on quitting which resulted in amendments to the Act.

Leasehold enfranchisement

Intriguingly the enfranchisement of long leases, beginning with the Leasehold Reform Act 1967 in relation to houses, and now extended by the Leasehold Reform, Housing and Urban Development Act 1993 to flats, has claimed an almost equal amount of attention. (London flats seem to be a particular focus of interest.) The meaning of the word ‘house’ itself has been considered more than once.64 In Majorstake Ltd v Curtis 65 stringent tests were imposed on landlords seeking to defeat tenants’ claims on the ground of an intention to develop premises in which the flat in question is contained. In each of these cases the Committee has recognised and given effect to an underlying legislative policy that long leaseholders should own their own home. Even more significantly, the Appellate Committee has unequivocally endorsed the abolition of the requirement that enfranchising tenants should satisfy a residence test, extending rights generally to non-resident investors.66

Rent Acts, Housing Acts, and other legislation

Despite a steady flow of appeals in residential cases, an evaluation of the Appellate Committee's impact on other branches of statute law is more difficult to carry out because of the continuing flux of the law itself.67 Courage and imagination were shown in Ghaidan v Godin-Mendoza 68 in a field in which these qualities are rarely called for, the work of applying statute to fact being mostly a hard grind.

Adverse possession

The Appellate Committee's only incursions into the contentious area of adverse possession have resulted in two leading cases. In some of their past decisions the (p.694) lower courts, faced with hard cases, had made confusing and bad law. The Appellate Committee's decisions, in particular the second, have now substantially put this subject to rest.

St Marylebone Property Co Ltd v Fairweather 69 concerned a shed in Hampstead which straddled two back gardens. It was held that the right of one of the freeholders to recover its part of the shed was not impaired by the fact that its lessee's right of recovery had been barred by very long adverse possession by the neighbour on the other side during the term of the lease. When the dispossessed lessee surrendered his lease the freeholder acquired an immediate right to advance its own claim.

In Pye v Graham 70 the owner of registered land with development potential licensed a farmer in 1983 to graze the land for 11 months. When the agreement ended the owner asked the farmer to leave but took no further action until 1998. At first instance Neuberger J held on those facts that the owner's title was barred, regretting the state of the law that required him to do so.71 The Court of Appeal72 found a way to reverse him, but he was unanimously upheld in the House of Lords. Lord Browne-Wilkinson, giving the leading speech, pointed out that ‘the apparently straightforward statutory provisions’ had given rise to considerable difficulties in earlier cases in the Court of Appeal.73 Paying generous tribute to the way in which Slade J in a case at first instance had previously reconciled these authorities74 he delivered a speech which?is a masterpiece of clear exposition. Simple factual possession—a sufficient degree of occupation and control—is enough to entitle a squatter to claim ownership, irrespective of the parties’ relationship, or their private understanding or intentions.

The case has two sequels. An argument advanced by the claimant that the law as described by Lord Browne-Wilkinson would violate owners’ human rights was dismissed, but was taken up by the owners against the United Kingdom in the European Court of Human Rights. A Chamber of the Fourth Section of the Court by a majority of four votes to three held that Article 1 of Protocol 1 had been violated. By a majority of 12 to five the majority of the Grand Chamber disagreed.75 It considered that the balance struck between individual property rights and the rules barring stale claims was not disproportionate.

To the diminishing amount of land which remains unregistered the decision therefore still applies with full force. In the case of registered land its practical effect has been mitigated by the Land Registration Act 2002. The concept of adverse possession remains unaltered, but the Act has abrogated the 12-year limitation period. It entitles occupiers who have been in adverse possession for (p.695) ten or more years to apply for a registered title, but they must give the owner of the paper title a fair opportunity to challenge their claim and reassert ownership, irrespective of the amount of time that has elapsed.76

Ramsden v Dyson revisited

In Ramsden v Dyson 77 Lord Kingsdown78 had said that where a person enters into a verbal agreement for ‘a certain interest in land’, or is encouraged by the owner to expect to receive such an interest, and takes possession and expends money on the land, a court of equity will compel the owner to give effect to the promise or expectation. In the same case Lord Cranworth LC had said79 that where a promise is known to be made which is binding in honour only, the jurisdiction of courts of equity as well as law is excluded.

After 142 years of extensive travel throughout the common law world the doctrine of proprietary estoppel found its way back to the House of Lords in Yeoman's Row Management Ltd v Cobbe. 80 Lords Scott and Walker reviewed the doctrine, and the allied concept of constructive trust, in depth. Equity is not to be overstretched. The expression ‘certain interest’ was intended to be restrictive. The object of the estoppel must be capable of close definition. The court cannot satisfy an expectation of a contract when its terms have not been sufficiently worked out. Moreover, an undertaking which is known to be binding in honour only cannot be converted into a beneficial interest in property. Equitable estoppel is not, Lord Walker said, ‘a sort of joker or wild card to be used when the court disapproves of the conduct of a litigant who seems to have the law on his side’.81 The doctrine can be safely sent back into?orbit.81a

Planning and compensation

Compulsory purchase

The compulsory acquisition of privately-owned land for the great projects of the nineteenth century—canals, railways, tramways—can still be viewed as a shock to a system of land tenure based on contract and inheritance. Indeed in the earlier phases the beneficiaries of compulsory purchase were themselves private business ventures, proceeding by private Act of Parliament. Public authorities, which now dominate the field, did not begin to have these overwhelming powers to any great extent until the time of the First World War. It is then no surprise that the period (p.696) between 1865 and 1907 contains the greatest number of appeals: 25 digested cases, including Scottish Appeals.82

The scheme of compulsory purchase, consolidated in various Lands or Railways Clauses Consolidation Acts and others, and routinely incorporated into each private Act, was designed to exclude judicial intervention. The Acts defined the powers of acquisition and laid down the procedure for their exercise. Compensation was fixed by arbitrators. But compensation was payable not simply for the land taken. Its acquisition might adversely affect other land retained by the owner or in the ownership of a third party (‘severance’ or ‘injurious affection’). The early decisions on these two heads of compensation have retained their authority.

With little legal material to guide it the House turned to the law of tort. Compensation for severance or injurious affection could only be recovered in respect of a head of loss claimable at common law. The temporary obstruction of a street causing loss of trade83 and the emission of smoke, noise and vibration from a railway84 would not count. The Duke of Buccleuch had better luck against the Metropolitan Board of Works building the Thames Embankment.85 It was held in the Duke's favour that compensation for injurious affection was recoverable not just for the taking of the land but also the permanent use to which it would then be put.

The common law of damages received payment in return in the decision in Bwllfa & Merthyr Dare Steam Collieries v Pontypridd Waterworks Co. 86 The colliery company was entitled to be paid for the loss of unworked coal seams, fixed by the arbitrator some two and a half years after the seams had been surrendered. Should they be valued at the date of surrender or at the date of arbitration, when values had increased? Lord MacNaghten's rhetorical questions87 continue to resonate through the law of damages. ‘Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him, why should he grope in the dark?’

In 1947 the Judicial Committee of the Privy Council handed down its decision in Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands.88 This case may rank as the most important decision in this field. It was held that the value of land taken by compulsory purchase cannot include any (p.697) increase in value which is entirely due to the scheme for which the land has been taken. The decision has been debated by the Appellate Committee on a number of occasions.89 Most importantly it was fully analysed and its scope more rigorously defined by Lord Nicholls in his speech in Walters v Welsh Development Agency 90 where the value of the land taken depended critically upon the definition of the ‘scheme’ for which it was being acquired.

Other cases before the Appellate Committee have demonstrated the interchange between concepts of private and public law in the field of compulsory purchase. In Smith v East Elloe RDC91 it was held that a compulsory purchase order could not be challenged on the ground that it had been made and confirmed in bad faith, but the aggrieved owner would have a remedy in private law. The wide scope of powers inherent in a compulsory purchase order was emphasised in Simpson's Motor Sales (London) Ltd v Hendon Corporation,92 in which it was held that land acquired specifically for the construction of flats could be held for a larger redevelopment scheme to take place at a future indefinite date, there being no excess of powers or unconscionable conduct in holding onto it.

Town and country planning

If the law of compulsory purchase engages both private and public law concepts, the jurisprudence of planning law moves land law into the public sphere and merges in the much wider field of judicial review, outside the scope of this chapter. Some of the history of the Appellate Committee's treatment of this branch of the law can nevertheless be traced here.

Planning law effectively begins in the period of reconstruction after the Second?World War. The spirit of the age is caught in the first of the Appellate Committee's post-war decisions—Franklin v Minister of Town and Country Planning 93—implementing the New Towns Act 1946. The speed of decision-making puts the modern planning system to shame. In January 1946 the Reith Committee recommended Stevenage as the site of a new town. In April 1946 the New Towns Bill was published and in May the Minister himself (Mr Lewis Silkin) spoke at a public meeting in Stevenage Town Hall. The meeting was turbulent. He was barracked. He said, ‘It is no good your jeering: it is going to be done.’ There were cries of ‘Dictator!’. He promised to consult as far as possible all the local authorities but said, ‘[I]f people are fractious and unreasonable, I shall have to carry out my duty’. Someone shouted ‘Gestapo!’. The Act was passed, the appropriate Order laid in August 1946, and a two-day public inquiry held in (p.698) October. The inspector reported later that month and Stevenage was designated in November.

An application to the High Court to have the decision quashed on the ground of procedural irregularity and bias, made in December 1946, was dismissed by the Appellate Committee on 24 July 1947 after argument in June.94 The House dryly observed that the Minister was acting in a purely administrative and not a quasi-judicial capacity. Modern commentators are divided on the merits of the decision.95 On whichever side of the line it might fall, it remains a boundary-marker for judicial interference in politics.

In other planning cases the Appellate Committee has exercised a more orthodox function. In Slough Estates Ltd v Slough BC 96 it was held that external documents (in that case the submitted plans) were to be taken into account in construing a planning permission. Almost as important as the grant of planning permission are the conditions which are attached to it. Lord Denning's statement of the law in the Court of Appeal in Pyx Granite Co Ltd v Minister of Housing and Local Government,97 that conditions must fairly and reasonably relate to the permitted development and cannot be used to achieve an ulterior object has been followed and applied in a number of cases in the House of Lords. In Fawcett Properties Ltd v Buckingham CC,98 within those constraints, a liberal and pragmatic approach to the interpretation of conditions was advocated. Mixman's Properties Ltd v Chertsey UDC  99 emphasised that conditions must be related to the use of the land and cannot be used in effect to dictate the terms upon which the landowner can let plots on his site. It was held in Kingsway Investments Ltd v Kent CC100 that a time condition—permission ceasing to have effect after three years—could validly be annexed to an outline planning permission. In Newbury DC v Secretary of State for the Environment 101 a condition, attached to permission to use unsightly aircraft hangars for the storage of materials, that the structures should be demolished after ten years was quashed on Pyx Granite grounds. Grampian Regional Council v City of Aberdeen DC102 paved the way for the requirement that development should be carried out in an orderly fashion, the prior completion of essential infrastructure being a lawful condition to implementing the principal scheme.

The durability of pre-existing lawful uses was explored in Young v Secretary of State for the Environment 103 and Pioneer Aggregates v Secretary of State. 104 The notion that planning policies, while they cannot (normally) be aimed at (p.699) individuals, can legitimately protect specific classes or groups of occupiers was upheld in Westminster City Council v Great Portland Estates plc. 105

The Appellate Committee has recently concentrated upon the current pressing concern for environmental protection, reflected in Berkeley v Secretary of State 106 and R (Barker) v Bromley LBC. 107 In Berkeley a decision by the Secretary of State to grant planning permission was quashed on the ground that no adequate environmental impact assessment had been carried out as required by both European and domestic law. In Barker it was held, after a referral to the European Court of Justice, that where outline permission had been granted without such an assessment, but it became apparent later, when reserved matters fell to be considered, that the project would be likely to have significant effect on the environment, permission granted without an assessment would be invalid notwithstanding the apparent effect of Regulations made under UK legislation.

Conclusion

Property lawyers, echoing the question raised by the Judaean Liberation Front in Life of Brian, might ask: What did the House of Lords ever do for us? It has always responded energetically and purposefully to new legislation. Analysing the policy underlying an Act of Parliament, carrying it into effect, and setting appropriate boundaries have been its main areas of activity. The large areas of law and practice which lie outside social or economic policy have benefited at most from sporadic raids. The answers to many practical problems in those areas still lie in the decisions of the lower courts, and the textbooks.

Notes:

(1) [1981] AC 205.

(2) The objection was an uncompleted contract for sale made in 1912 which had sunk without trace in the 1930s. ‘Beyond reasonable doubt’ the vendor was held to have a marketable title, and it was not open to the Land Registry to register the contract as an incumbrance.

(3) (1874) LR 7 HL 158.

(4) Sharneyford Ltd v Barrington Block & Co [1987] 1 Ch 305, 318

(5) Law of Property (Miscellaneous Provisions) Act 1989, s 3.

(6) [1980] AC 367.

(7) [1981] AC 1050.

(9) [1915] AC 386.

(10) Salt v Marquis of Littlehampton [1892] AC 1; Noakes & Co v Rice [1902] AC 24; Reeve v Lisle [1902] AC 461; Bradley v Carritt [1903] AC 253; Samuel v Jarrah Timber & Wood Paving [1904] AC 323; and Kreglinger v New Patagonian Meat & Cold Storage Co [1914] AC 25.

(11) [1968] AC 269: covenant in a mortgage to purchase only the mortgagee's petrol for 21 years held to be an unreasonable restraint of trade and void as contrary to public policy.

(12) West Bromwich BS v Wilkinson [2005] 1 WLR 3203

(13) [2004] 2 AC 519: committing a criminal offence (driving across a common) does not prevent the acquisition of a right of way under the lost modern grant rule.

(14) [2007] 1 WLR 2620.

(15) (1881) 6 App Cas 740.

(16) [1904] AC 179.

(17) [1915] AC 634.

(18) [1979] AC 144.

(19) (1879) 12 Ch D 31.

(20) Jurisdiction of the Lands Tribunal to modify or discharge restrictive covenants.

(21) Tulk v Moxhay (1848) 2 Ph 774 41 ER 1143

(22) [1994] 2 AC 310.

(23) Sefton v Tophams Ltd [1967] AC 50

(24) The overall judicial head-count was against the final decision by 5 to 4, Stamp J and two of the?judges in the Court of Appeal supporting Lords Reid and Wilberforce, the 2:3 minority in the House.

(25) Land Registration Act 1925, s 70(1)(g), now replaced with modifications by the Land Registration Act 2002, Sch 3 para 2.

(26) [1981] AC 513.

(27) [1965] AC 1175.

(28) The Matrimonial Homes Act 1967, now Family Law Act 1996, ss 30–32 and Sch 4 have ameliorated the problem. See also the discussion by Stephen Cretney in ch 36 of this volume.

(29) [1981] AC 487.

(30) [1988] AC 54.

(31) [1991] 1 AC 56.

(32) [1991] 1 AC 107.

(33) [1994] 1 AC 180, 198.

(34) [2007] 2 AC 432.

(35) [1962] AC 469.

(36) [1963] AC 510, 548.

(37) [2000] AC 264.

(38) [1992] 2 AC 386.

(39) [1981] AC 675.

(40) [1945] AC 221.

(41) Reichman v Beveridge [2007] 1 EGLR 37, para 27

(42) [1978] AC 904.

(43) [1997] AC 749.

(44) S Bright (ed), Landlord and Tenant Law: Past, Present and Future (Oxford: Hart, 2006) 3–4

(45) R v Burke [1991] 1 AC 135 at 146–7

(46) [1911] AC 46.

(47) [1960] AC 528.

(48) [1980] AC 37.

(49) [1975] AC 373.

(50) [1977] AC 59.

(51) O'May v CLRP [1983] 2 AC 276

(52) [1985] 1 AC 809.

(53) The same mistake was not made under the Agricultural Holdings Acts.

(54) [1948] AC 173.

(55) [1990] 1 AC 417 (no exclusive possession).

(56) ibid

(57) [2000] 1 AC 406.

(58) Wheeler v Mercer [1957] AC 416

(59) Graysim Holdings Ltd v P&O Property Holdings Ltd [1996] AC 399

(60) O'May v CLRP [1983] AC 276

(61) Betty's Cafés Ltd v Phillips Furniture Stores Ltd [1959] AC 20. See also Heath v Drown [1973] AC 498: landlord not entitled to oppose a new tenancy for redevelopment where there is a contractual right under the existing tenancy to enter to carry out the intended works.

(62) Kammins Ballrooms Ltd v Zenith Investments Ltd [1971] AC 850

(63) [1965] AC 58.

(64) Parsons v Henry Smith's Charity [1974] 1 WLR 435; Tandon v Trustees of Spurgeon's Homes [1972] AC 755; Malekshad v Howard de Walden Estates [2003] 1 AC 1013; and Boss Holdings Ltd v Grosvenor West End Properties [2008] 1 WLR 289.

(65) [2008] 1 AC 787.

(66) Howard de Walden Estates v Aggio [2009] 1 AC 39

(67) Palser v Grinling [1948] AC 291

(68) [2004] 2 AC 557: defendant living in a stable and permanent homosexual relationship with a protected tenant held to be residing with him ‘as his or her wife or husband’ for the purposes of the Rent Act 1977, also discussed in chs 31and 36 of this work.

(69) [1963] AC 510.

(70) [2003] 1 AC 419.

(71) [2000] Ch 676, 709–10.

(72) [2001] Ch 804.

(73) [2003] 1 AC 419, para 31.

(74) ibid

(75) JA Pye (Oxford) and JA Pye (Oxford) Land Ltd v United Kingdom (2008) 46 EHRR 45

(76) See Land Registration Act 2002, s 97 and sch 6.

(77) (1866) LR 1 HL 129.

(80) [2008] 1 WLR 1752.

(82) A very similar story emerges from the pattern of digested cases on mines and minerals, which assumed great importance in both private conveyancing and compulsory purchase in the nineteenth and early part of the twentieth centuries: 25 English and Scottish appeals down to 1913, and only one after that, in 1945, shortly before these resources were nationalised.

(83) Ricket v Metropolitan Rly Co (1867) 2 HL 175

(84) Hammersmith and City Rly Co v Brand (1869) 4 HL 171, followed in London, Brighton and?South Coast Rly v Truman (1885) 11 App Cas 45 and by the Appellate Committee in Argyle Motors (Birkenhead) Ltd v Birkenhead Corp [1975] AC 99 and Wildtree Hotels Ltd v Harrow L BC [2001] 2 AC 1.

(85) Duke of Buccleuth v Metropolitan Board of WorksCowper Essex v Acton Local Board (1889) 14 App Cas 153

(86) [1903] AC 426.

(88) [1947] AC 465.

(89) See Davy v Leeds Corp [1965] 1 WLR 445; Margate Corp v Devotwill Investments [1970] 3 All ER 864; and Rugby Joint Water Board v Foottit, Same v Shaw-Fox [1973] AC 262.

(90) [2004] 1 WLR 1304: wetlands forming part of the Cardiff Bay barrage project.

(91) [1956] AC 736.

(92) [1964] AC 1088.

(93) [1948] AC 87.

(94) The Attorney General Sir Hartley Shawcross (leading Mr Hubert Parker) submitted that it was ‘idle to talk of natural justice in a case of this kind or of any necessity for an appearance of justice’.

(95) Contrast De Smith's Judicial Review (London: Sweet & Maxwell, 6th edn 2007)

(96) [1971] AC 958.

(97) [1958] 1 QB 554, 572.

(98) [1961] AC 635.

(99) [1965] AC 735, a decision under the Caravan Sites etc Act 1960.

(100) [1971] AC 72.

(101) [1981] AC 578.

(102) (1983) 47 P & CR 633, remarkably not reported in the Appeal Cases series.

(103) [1983] 2 AC 662.

(104) [1985] AC 132.

(105) [1985] AC 661, a victory for the tailors of Savile Row, among others.

(106) [2001] 2 AC 603.

(107) [2007] 1 AC 470.