Land

Restrictive covenant to benefit adjoining or neighbouring property so long as it formed part of family's 'settled estate' - land ceasing to be settled but still held for benefit of family members - covenant not enforceable

Dano Ltd v Earl Cadogan and others: CA (Lords Justice Schiemann and Carnwath and Sir Christopher Staughton): 19 May 2003

In 1929, the first defendant's predecessor in title sold part of a settled estate to the local authority subject to a covenant requiring that it be developed and retained as housing for the working classes.

In 1930, the land was let on a 999-year lease for that purpose.

A small plot (the site) was to be developed as a public house, and if such use ceased, the land could only be used for housing the working classes.

The covenant was expressed to benefit certain adjoining or neighbouring property 'so long as such adjoining or neighbouring property or any part thereof forms part of the Cadogan Settled Estate in Chelsea'.

In 1961, the land ceased to be settled land but was still held for the benefit of members of the Cadogan family.

The site ceased to be used as a public house and in 2000, was sold to the claimant for the construction of private houses.

The claimant sought a declaration that there was no land which had the benefit of the covenant.

It was common ground that 'affordable housing' was the modern equivalent of housing for the working classes.

Mr Justice Etherton granted the declaration.

The first defendant appealed.

Elizabeth Appleby QC and Toby Davey (instructed by Pemberton Greenish) for the first defendant; Michael Barnes QC and Rupert Reed (instructed by Jones Day Gouldens) for the claimant.

Held, dismissing the appeal, that the inclusion of the word 'settled' referred to the estate as it existed in 1929 and, even if one of the parties had intended that the covenant should be enforceable if the neighbouring land should remain in the Cadogan family, it was not possible to apply a purposive construction so as to give the covenant continuing force.

Listed nature of purchaser's property not entered on register of local land charges - purchaser's neighbour obtaining planning permission to convert nearby barn into dwelling - purchaser unable to claim compensation from registering authority for loss to value of property caused by conversion since charge not being enforced against him

Pound v Ashford Borough Council: ChD (Mr Justice Laddie): 16 May 2003

The claimant bought a farmhouse which had been listed as a building of architectural or historical interest, but its listed status had not been entered in the register of local land charges by the defendant authority.

Subsequently, the purchaser's neighbour, with planning permission granted by the authority, converted a nearby barn into a dwelling, with the result that the amenity and value of the farmhouse were substantially diminished.

The claimant brought proceedings for compensation under section 10(1) of the Local Land Charges Act 1975, whereby a purchaser of land affected by a local charge was entitled to compensation for any loss suffered as a consequence of the failure of an official search to show the existence of the charge.

The claim was struck out as disclosing no reasonable cause of action.

The claimant appealed.

Christopher Stoner (instructed by Champion Miller & Honey, Tenterden) for the claimant; Adrian Cooper (instructed by Weightman Vizards) for the authority.

Held, dismissing the appeal, that section 10(1) made all local land charges enforceable, even those not registered, but gave the purchaser a right to compensation only when the charge was enforced against him, so that the charge was in the nature of a burden or encumbrance; that the right to compensation was a response to, and tied to, the fact that the charge was enforceable against the purchaser and it was given only in order to compensate for the loss which resulted from the enforceability of the charge; and that, accordingly, in the instant case, the purchaser was unable to claim compensation, since none of the loss suffered was due to a charge being enforced against him.

Breach of planning control by gypsies occupying caravans on own land - local authorities seeking injunctions to restrain breach - court's jurisdiction discretionary to be exercised only where just and proportionate having regard to convention rights

South Bucks District Council v Porter and another; Chichester District Council v Searle and others; Wrexham County Borough Council v Berry: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Clyde, Lord Hutton and Lord Scott of Foscote): 22 May 2003

In three cases, local authorities applied successfully to the court under section 187B of the Town and Country Planning Act 1990, for injunctive relief against the defendant gypsies to prevent them occupying caravans on their own land in breach of planning control.

The defendants appealed, contending that the court had failed to consider the likely effect of the orders on their human rights under section 6(1) of the Human Rights Act 1998, and article 8 of the European Convention on Human Rights.

The Court of Appeal [2001] EWCA Civ 1549; [2001] Gazette, 29 November, 35; [2002] 1 WLR 1359, allowed their appeals.

The local authorities appealed.

Timothy Straker QC and Ian Albutt (instructed by Sharpe Pritchard) for the local authority in the first appeal; Timothy Straker QC and Robin Green (instructed by Sharpe Pritchard) for the local authorities in the second and third appeals; Charles George QC and Stephen Cottle (instructed by Community Law Partnership, Birmingham) for the defendants in the first and third appeals; the defendants in the second appeal were not present or represented.

Held, dismissing the appeals, that section 187B of the 1990 Act conferred an original, not a supervisory, jurisdiction; that an injunction was a discretionary remedy which the court was not obliged to grant because a planning authority considered it necessary or expedient to restrain a breach; that, although matters of planning policy and judgment were in the exclusive purview of planning authorities, the court could have regard to all, including the personal, circumstances of the case, and, in accordance with section 6(1) of the 1998 Act and having regard to article 8, would only grant an injunction where it was just and proportionate to do so.

(WLR)