Property law reports
Land: Discontinuance of use
Listed buildings falling into disrepair - inappropriate use of surrounding land compounding damage - appeal under section 288 of Town and Country Planning Act 1990 against order for discontinuance of use made under section 102 of Act - whether an additional onus of proof on defendant considering order's Draconian nature - appeal dismissed
Chant v Secretary of State for Transport, Local Government and the Regions and another: QBD: Administrative Court: Mr Justice Sullivan:1 July 2002
The claimant owned land that included listed buildings in a state of disrepair and a yard.
The yard was used for storage, business and agricultural use, and was littered with abandoned machinery, building materials and general refuse.
The second defendant local authority had pursued various environmental and public health actions against the claimant, but its concerns about the property had not been satisfactorily resolved.
The authority concluded that an order for compulsory purchase of the listed buildings would be insufficient to halt the damaging use of the accompanying land, and resolved to pursue a long-term policy of restoration.
In 2001, the authority issued an order under section 102 of the Town and Country Planning Act 1990, requiring the claimant to discontinue use of the yard.
A public inquiry was held and, following his inspector's recommendations, the first defendant secretary of state confirmed the order in 2002.
The claimant appealed, under section 288 of the 1990 Act, against the inspector's decision.
He argued that an order under section 102 was a Draconian measure akin to an order for compulsory purchase, and that, following Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 All ER 1049, the inspector should have imposed an onus on the authority to adduce additional evidence as proof that the order sought should be granted.
Additionally or alternatively, the authority misused its powers under section 102 in that, although the avowed intention was to prohibit use of the yard, the real purpose of the order was to gain access to the listed buildings, and the authority should have relied on the provisions of the Listed Buildings Act 1990.
The section 102 order excluding all uses was disproportionate to the desired aim, and a lesser restriction of use would have sufficed to achieve the desired effect.
In addition, such an order infringed the claimant's right to peaceful enjoyment of his home under the provisions of the Human Rights Act 1998.
David Fletcher (instructed by Thring Townsend, Bath) for the claimant; Philip Coppel (instructed by the Treasury Solicitor) for the first defendant; the second defendants did not appear and were not represented.
Held: The appeal was dismissed.
Although section 102 was a Draconian measure, it did not impose an additional burden of proof on the authority.
The relevant test was that set out in R v Secretary of State for Transport, ex parte de Rothschild [1989] 1 All ER 933, where the compulsory purchase of land had to be 'decisively' in the public interest.
The inspector correctly reviewed all the relevant authorities, and was correct in his analysis that such an order was expedient and sufficiently justified under section 102, taking into account the damage to visual amenity, the desirability of restoring the listed buildings, and the local council's statutory duty to consider the setting and use of surrounding land in respect of a listed building.
The powers given under the order had not been exercised capriciously and were sufficient and reasonable on the facts of the case.
Coleen Properties turned on the facts of that particular case and was of no assistance here.
It would not have been sufficient for the authority to proceed with a compulsory purchase order of the listed buildings only to allow the claimant to continue with the use of the yard, because the continuation of the inappropriate use would have outweighed the benefits of the restoration.
The authority and the inspector were correct to give equal weight to the restoration of the building and its setting.
The claimant's right to peaceful enjoyment of his home under human rights legislation was outweighed by the public interest issues, such as the effect of his activities on neighbouring properties and the environmental damage caused by his activities.
Moreover, under section 102 the claimant would be financially compensated for the loss of his home and business.
Disposal of land: Beneficial interest
Transfer of beneficial interest in property - document signed by one party only - whether document a contract to dispose of equitable interests under section 2 of Law of Property (Miscellaneous Provisions) Act 1989 or a disposition in writing for purposes of section 53(1)(c) of Law of Property Act 1925 - matter remitted back to master for reconsideration
Clark v Chandler: CA: Lords Justice Thorpe and Chadwick and Mr Justice Wall: 28 June 2002
In 1988, the appellant, Mrs Chandler, purchased a family home in her sole name with money that belonged jointly to herself and her husband.
In 1997, she and her husband agreed to divorce.
A document was drafted, and signed by Mr Chandler, which purported to transfer all his beneficial interest in the property to Mrs Chandler in exchange for a sum of money, although the precise terms were not agreed at that stage.
Mr Chandler subsequently made a will appointing the respondent, Mrs Clark, as his sole beneficiary, trustee and executor.
The divorce was finalised in 1998.
Shortly thereafter, Mr Chandler died and the will was granted probate.
In 2001, proceedings were commenced to determine the ownership of the property.
A master held that the document signed by Mr Chandler was a contract to dispose of his equitable interest, but it was unenforceable because it had not been signed by both parties, as required by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.
Furthermore, the wording of the document indicated that some future financial arrangement was still to be agreed.
It was ruled that Mr and Mrs Chandler had held the beneficial interest in the property in equal shares.
As Mr Chandler's sole beneficiary, Mrs Clark was therefore entitled to his share in the property and an order for sale was made accordingly.
Mrs Chandler appealed this decision on the ground that the document was not a contract for the disposal of the equitable interest, but was a disposition in writing in accordance with section 53 (1)(c) of the Law of Property Act 1925.
Stuart Nicol (instructed by Margaret Reynolds & Co, Grays) for the appellant; Janice Johnson (instructed by TA Capron & Co, Grays) for the respondent.
Held: The order was set aside.
The document was not an immediate and unconditional disposition in writing.
It was clearly drafted for the purpose of facilitating a swift and uncontested divorce, and, in the circumstances, it could not have been Mr Chandler's intention to convey his beneficial interest unconditionally to Mrs Chandler.
It was unsuccessful as a conditional disposition because the conditions it contained were not, and could not, be fulfilled.
Evidence adduced at the hearing indicated a joint tenancy and, since that had not been successfully severed, Mrs Chandler should therefore be granted full ownership by right of survivorship.
It appeared that the master had been under the misapprehension that it was common ground that Mr and Mrs Chandler had been tenants in common, but this was not the case.
Therefore, the order was made on erroneous grounds and would be set aside, and the matter remitted for reconsideration.
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