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Issue 47 – October 2007

Contents

Cases
Statutory Instruments
Features
Articles
News

Events
Discounts (how to book and claim discounts)
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Cases

1. Gill v Leeds County Council

Citation: [2007] All ER (D) 143 (September)
Hearing date: 24 September 2007
Court: Queen's Bench Division
Judge: Flaux J
Summary: local authority – land – possession proceedings

The defendant, a traveller, had spent more than 25 years living in conventional accommodation. However, she became homeless when her landlord increased her rent to a rate that she could not afford. She applied to the claimant local housing authority for it to accommodate her and her two children on the basis that they were homeless. There was a delay in the local housing authority's response, and the defendant and her children began living in two caravans on a number of unauthorised sites. The local housing authority was the owner of one of those sites, on which the defendant still lived pending the outcome of the instant proceedings. H, a travellers’ service officer employed by the local housing authority, attended the site and prepared a travellers’ needs assessment. The report indicated that the defendant did not want to live at a permanent travellers’ site, but wanted to continue living in conventional accommodation. The report was completed according to the applicable government guidelines, and H reported her findings to W, the group manager housing officer. W considered all the materials and concluded that the local authority could not tolerate trespassers on its land so commenced possession proceedings. The local housing authority offered the defendant accommodation on a permanent travellers’ site, which the defendant refused, and further conventional accommodation, which she also refused, the reasons for which had been accepted by the local housing authority. The county court judge concluded that it could not be said that no reasonable local authority would have proceeded in the manner in which the local authority had. In the event, he granted a possession order.

The defendant appealed.

She contended that the local authority had applied the wrong test for assessing Wednesbury unreasonableness, and that the decision had been wrong as the judge had not applied the correct criteria in reaching his decision.

The court ruled:

In the instant case, although W had not referred to the issue of nuisance if the defendant was to move to another site, it was clear that he had had in mind the applicable government guidance when considering the defendant's case. Even if W had not specifically covered that issue, overall it could not be said that his decision had been Wednesbury unreasonable. The risk of third party harm had been remote, and W's failure to consider it had not made his decision so unreasonable that no reasonable local housing authority could have reached that decision. In all the circumstances, the judge's decision had been entirely correct, and the submission that the judge had not given sufficient reasons for his conclusion had to be rejected. Lambeth London Borough Council v Kay; Leeds City Council v Price [2006] 4 All ER 128 applied, R (on the application of Casey) v Crawley Borough Council [2006] All ER (D) 11 (March) considered.

Case annotations in other services: Gill v Leeds County Council [2007] All ER (D) 143 (September); Lambeth London Borough Council v Kay; Leeds City Council v Price [2006] 4 All ER 128; R (on the application of Casey) v Crawley Borough Council [2006] All ER (D) 11 (March)
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2. Oysterfleet Hotel Plc v Secretary of State for Communities and Local Government

Citation: [2007] All ER (D) 137 (September)
Hearing date: 24 September 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Judge Mole sitting as a deputy High Court judge
Relevant legislation: Town and Country Planning Act 1990 section 288
Summary: town and country planning – permission for development – outline permission

The claimant submitted an application for outline planning permission to develop a 60-bedroom motel, public house, restaurant, and function suite, on “green belt” designated land. Contrary to advice by the director of planning at the relevant local authority, its planning committee rejected the application, on the grounds that the proposal was against material policies of the local development plan, that it would represent a departure from established green belt policy, which aimed to restrict openness in the countryside from being compromised, and that “very special circumstances” did not exist to justify the development proposed. The matter was referred to the defendant Secretary of State, whose inspector, thereafter, held a local inquiry. An expert instructed by the claimant gave evidence to the effect there was a highly buoyant market demand for hotel accommodation, both locally and in the region, and, by a sequential site approach, that no other site could satisfy the shortfall in the supply of hotel accommodation in the short and medium term. The inspector concluded that the claimant had satisfied the requirement of “need” for hotel accommodation, but that that need was not pressing, such that the site could not fall within the category of “very special circumstances”. He, accordingly, recommended the refusal of permission. The Secretary of State agreed with the inspector, and ordered the refusal of permission. The claimant challenged the Secretary of State's decision under section 288 of the Town and Country Planning Act 1990. It submitted, inter alia, that there was no requirement for it to establish a “pressing need”, to come within the “very special circumstances” exception to the general policy against development on green belt designated land.

The application would be dismissed.

In the circumstances, the addition of the word “pressing” in relation to the question of need did not mean that the inspector had misunderstood the test to be applied in respect of the “very special circumstances” exception to development on green belt designated land. Need was a variable concept, and could be preceded by the words, “urgent”, “compelling”, “overwhelming” or “overriding”. The word “pressing” to describe “need” would be a perfectly sensible addition to the list. Accordingly, the inspector had not erred and the Secretary of State had been entitled to adopt the same approach in her reasoning. It followed that the order made by the Secretary of State would stand.

Brentwood Borough Council v Secretary of State for the Environment and others [1996] 3 PLR 13 considered.

Case annotations in other services: Oysterfleet Hotel Plc v Secretary of State for Communities and Local Government [2007] All ER (D) 137 (September) 
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3. Mansfield District Council v Langridge

Citation: [2007] All ER (D) 129 (September)
Hearing date: 21 September 2007
Court: Queen's Bench Division
Judge: Calvert-Smith LJ
Relevant legislation: Housing Act 1985, section 79
Summary: landlord and tenant – tenancy – tenancy distinguished from licence

In 2004, the claimant granted a secured tenancy of property M to the defendant. Following allegations of bad conduct against the defendant, the claimant issued possession proceedings against him. The defendant subsequently suffered a serious assault, spending a considerable period of time in hospital, during the course of which attempts were made to find suitable accommodation for him. Upon being released from hospital, he was temporarily placed in a hostel, having unsuccessfully requested the return of the keys to property M, which had been given to the claimant by his mother to enable the property to be cleaned. He brought proceedings against the claimant, seeking an injunction requiring the return of the keys. On 10 August 2006, the judge made an order, not to have effect until the end of the possession proceedings, providing that the claimant could not exclude the defendant from property M. He stated that he would have granted the injunction, but for the fact that alternative accommodation had been offered by the claimant in the form of property W. The defendant subsequently signed a licence agreement in relation to that property for the period from 14 August to 22 September, the latter being the date upon which judgment in the possession proceedings was anticipated. An order for possession of property M was made on 28 September. Following the expiry of a notice to quit property W, which had been served on the defendant, the claimant brought proceedings for the possession of that property. A possession order was made notwithstanding the defendant's contention that he had been granted a secured tenancy thereof. The judge held that it had been the mutual intention of the parties at the time of the licence agreement that occupation should be limited in time to the delivery of the judgment in the possession proceedings. He held, moreover, that it had not been let as a separate dwelling as required by section 79 of the Housing Act 1985 in order to constitute a secured tenancy. The defendant appealed. He submitted, inter alia, that the judge's decision had been misconceived, as property W was a separate dwelling.

The appeal would be dismissed.

In the instant case, it had been the intention of both parties that the defendant's right to occupy property W would be limited in time to the delivery of judgment in the possession proceedings. Nothing had occurred to change that intention. It was consistent with authority that property W had not been a separate dwelling. The right to occupy had ceased when the underlying assumption for the grant of the licence had fallen away. Tyler v Royal Borough of Kensington and Chelsea (1990) 23 HLR 380 applied.

Case annotations in other services: Mansfield District Council v Langridge [2007] All ER (D) 129 (September); Tyler v Royal Borough of Kensington and Chelsea (1990) 23 HLR 380
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4. Winchester City Council v Secretary of State for Communities and Local Government and another

Citation: [2007] All ER (D) 119 (September)
Hearing date: 20 September 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Judge Mole sitting as a deputy High Court judge
Relevant legislation: Town and Country Planning Act 1990 sections 192, 288
Summary: town and country planning – development – use classes

The second defendant, an independent contract research organisation, made an application under section 192 of the Town and Country Planning Act 1990 to the claimant local authority for a certificate to be granted in respect of the lawfulness for a proposed use, at a farm that was concerned with the breeding of poultry. The proposed use was to allow for the second defendant to breed, incubate, rear and keep fertile disease-free eggs, which would be provided to a host of third parties in the development of a vaccination. The authority rejected the application, and the second defendant appealed to the first defendant Secretary of State. An inquiry was held, following which an inspector concluded, having regard to the provisions set out in the Town and Country Planning (Use Classes) Order 1987, statutory instrument 1987/764, and in particular, articles 2 and 3, that the proposed use was “incidental” to the process that had already been established at the farm, and not a new “industrial process”. The proposed use was therefore certified. The authority challenged the validity of the inspector's decision and his certification of the proposed use pursuant to section 288 of the 1990 Act. The authority relied on case-law and, in the alternative, a dictionary definition, in submitting that the word “incidental” had to involve questions relating to what the planning unit was and what its use was.

The application would be dismissed.

In the instant case, what was “incidental” was a matter of fact and degree, and did not depend on what the planning unit was or what its use was. All the inspector had to do was ask whether the proposed use was for, or incidental to, the making of an article, or incidental to the existing use, having regard to all the uses taking place on the planning unit. That was the approach which had been adopted by the inspector, and it could not be criticised. Accordingly, the decision, and certification which followed, would stand. Brazil (Concrete) Ltd v Amersham RDC (1967) 8 P & CR 396 and Burdle and another v Secretary of State for the Environment and another [1972] 3 All ER 240 considered.

Case annotations in other services: Winchester City Council v Secretary of State for Communities and Local Government and another [2007] All ER (D) 119 (September); Brazil (Concrete) Ltd v Amersham RDC (1967) 8 P & CR 396; Burdle and another v Secretary of State for the Environment and another [1972] 3 All ER 240
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5. South Cambridgeshire District Council v Secretary of State for Communities and Local Government and others

Citation: [2007] All ER (D) 105 (September)
Hearing date: 18 September 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Keith J
Relevant legislation: Planning and Compulsory Purchase Act 2004, section 38(6); Town and Country Planning Act 1990 section 288(1)
Summary: town and country planning – permission for development – material consideration

The second and third defendants were gypsies who led a travelling lifestyle until the birth of their third child, K, in 1996. She was born with an acute and life-threatening condition requiring regular medical help, making their former lifestyle untenable. They subsequently bought a plot of land with planning permission for gypsy use, upon which they lived in a double unit mobile home. In 2001 and 2002, violence became rife on the site due to the arrival of non-indigenous gypsies, meaning that the ambulance service was unwilling to respond to emergency calls without police accompaniment. By 2004, the family were the only pre-existing gypsy family remaining on the site, as they had not been able to find a suitable plot they could afford to buy or rent, namely one within a reasonable distance of the hospital, K's school and the doctor's surgery at which they were registered. They subsequently bought and moved to a plot in that area, although it did not have planning permission for gypsy use. A planning inspector ultimately granted planning permission for the development subject to a number of conditions, including that only the second and third defendants and their dependants who lived with them could reside on the site. The inspector held that the development would have a significant adverse effect on the rural character and appearance of the area, and conflicted with various planning policies, but that there were other material considerations that had to be taken into account pursuant to section 38(6) of the Planning and Compulsory Purchase Act 2004, including the limited immediate availability for suitable land, and the exceptional nature of the family's personal circumstances, even among the gypsy community. The claimant made an application under section 288(1) of the Town and Country Planning Act 1990, challenging the validity of the decision to grant planning permission at all.

The claimant submitted, inter alia, that the inspector's findings in connection with the second and third defendants' search for alternative sites were flawed. In particular, it submitted that her analysis had been counter to the “established approach” when the development of a site had been found to be harmful in planning terms, for example, because of the adverse impact it would have had on the appearance of the countryside. In such a case, the burden was on the persons seeking planning permission to show they had done all that could reasonably have been expected of them to find a suitable site that catered for their needs, but that no such site had been available.

The application would be dismissed.

Section 38(6) of the 2004 Act required the inspector to conduct a balancing exercise. That involved first determining whether there were material considerations that might suggest the development should be allowed, even though it conflicted with the provisions of the development plan. If the evidence revealed the existence of one or more such material considerations, the inspector then had to conduct a balancing exercise and decide whether those considerations, in fact, outweighed the provisions of the development plan and the harm that would be caused if the development was allowed to proceed. There was no basis for saying that if one of those material considerations was said to be the non-availability of a suitable alternative site, it was for the applicant for planning permission to prove such non-availability. As with any other material consideration, the question was whether the evidence which the parties had chosen to call revealed the existence or non-existence of another site that would meet the needs of the applicant for planning permission. There were no grounds to question the validity of the inspector's decision in the instant case. In the circumstances, her approach to the burden of proof had not been flawed.

Case annotations in other services: South Cambridgeshire District Council v Secretary of State for Communities and Local Government and others [2007] All ER (D) 105 (September)
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6. Brown v Secretary of State for Communities and Local Government and another

Citation: [2007] All ER (D) 96 (September)
Hearing date: 17 September 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Judge Mole sitting as a deputy High Court judge
Relevant legislation: Town and Country Planning Act 1990, section 288
Summary: town and country planning – development – material change of use

The claimant submitted an application to the second defendant local planning authority for the change of use of land at a farm which was situated in the open countryside to use, inter alia, as a static holiday caravan park, with an ancillary recreation area and nature reserve. The authority rejected the application and the claimant lodged two appeals to the first defendant Secretary of State. An inspector appointed by the Secretary of State considered various structure and local plan policies. He concluded that the proposals would markedly change the character and appearance of the surrounding area. He further concluded that any traffic which might be generated as a result would have a disproportionate impact, in the light of representations which had been made by local residents, and notwithstanding a traffic expert's report, which suggested that traffic generation would be in the order of one vehicle per hour in the area concerned. The inspector accordingly dismissed the appeals. The claimant challenged the inspector's decisions under section 288 of the Town and Country Planning Act 1990.

He submitted, inter alia, that the inspector had misunderstood the specific policy relating to the introduction, extension or intensification of sites for static caravans, cabins and chalets, or if he had understood it, he had misapplied it. That policy was in terms that development was not permitted if it would cause material harm, inter alia, to the landscape and the living conditions of nearby residents.
The application would be dismissed.

In the circumstances, although the inspector had not explicitly used the word “material” in his decision, the use of the word “markably” in relation to the landscape criteria, made it plain that he had understood the specific policy in question, and that he had accurately applied it to the instant facts. On that basis, it could be said that the inspector had not erred in law. In respect of the traffic criteria, the inspector did not have to decide whether he agreed or disagreed with the traffic expert; so long as he had taken that view into account, which, in the instant case he had, and had taken on board the representations of the local residents, which, again, he had, his judgment could not be criticised as irrational.

Accordingly, the inspector's decisions would stand.

Dictum of Lord Brown in South Bucks District Council and another v Porter [2004] 4 All ER 775 at [36] applied.

Case annotations in other services: Brown v Secretary of State for Communities and Local Government and another [2007] All ER (D) 96 (September); Dictum of Lord Brown in South Bucks District Council and another v Porter [2004] 4 All ER 775 at [36]
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7. Kali Ltd and another v Chawla and others Advani v Chawla and another

Citation: [2007] All ER (D) 90 (September)
Hearing date: 13 September 2007
Court: Chancery Division
Judge: Judge Hodge QC sitting as a judge of the High Court
Relevant legislation: Insolvency Act 1986, section 423
Summary: land charge – registration – general equitable charge

On 12 September 2007, judgment was delivered in relation to several factual issues that arose concerning, inter alia, the beneficial interest of the parties in the property in issue ([2007] All ER (D) 63 (September)). The legal effect of those findings of fact fell to be decided at a subsequent hearing following further submissions by the parties. The legal issues to be determined included: (i) the beneficial interests of the parties in the property in issue; and (ii) whether the transfer of the legal ownership of the property from, purportedly, the first and second defendants to the claimant in the second action was a sham, having regard to section 423 of the Insolvency Act 1986.

The court ruled:

(1) On the facts, the claimants had established that there was a shared intention on the part of the parties that from 2001, when the first and second defendants were divorced, the second defendant had effectively renounced any interest in the property.

(2) It was clear, on the evidence, that the transaction to the claimant in the second action was at a significant undervalue and had been entered into to put the property beyond the reach of persons who might make a claim against the first defendant.

Stack v Dowden [2007] 2 All ER 929 considered.

Case annotations in other services: Kali Ltd and another v Chawla and others Advani v Chawla and another [2007] All ER (D) 90 (Sep); [2007] All ER (D) 63 (Sep); Stack v Dowden [2007] 2 All ER 929
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8. JA Pye (Oxford) Ltd and another v United Kingdom

Citation: [2007] ECHR 44302/02
Hearing date: 30 August 2007
Court: European Court of Human Rights
Judge: Judge Costa (president)
Relevant legislation: Land Registration Act 1925; Limitation Act 1980
Summary: human rights – right to peaceful enjoyment of possessions – adverse possession

The second applicant company was the registered owner of a plot of 23 hectares of agricultural land. The first applicant company acquired the land by a series of transactions between 1975 and 1977, and owned it until April 1986 when it transferred the land to the second applicant company subject to an option to repurchase. The owners of a property adjacent to the land, Mr and Mrs G, occupied the land under a grazing agreement until 31 December 1983. Thereafter they remained in occupation and continued to use it for grazing. In 1997 they registered cautions at the Land Registry on the ground that they had obtained title by adverse possession. The applicant sought cancellation of the cautions and possession of the disputed land. Mr and Mrs G challenged the claims under the Limitation Act 1980, which provided that a person could not bring an action to recover any land after the expiration of 12 years of adverse possession by another. They also relied on the Land Registration Act 1925, which applied at the relevant time and provided that, after the expiry of the 12-year period, the registered proprietor was deemed to hold the land in trust for the squatter. Eventually the House of Lords (see [2002] 3 All ER 865) held that Mr and Mrs G had possession of the land. The applicants complained to the European Court of Human Rights that the taking away of ownership of their land because of 12 years' adverse possession had upset the fair balance required under article 1 of the First Protocol to the European Convention on Human Rights. A chamber of the court held that there had been a violation of article 1 of the First Protocol (see [2005] All ER (D) 199 (Nov)). The government requested the referral of the case to the Grand Chamber in accordance with article 43 of the Convention.

Held:

In order to be compatible with the general rule set out in article 1 of the First Protocol, namely that every natural or legal person was entitled to the peaceful enjoyment of his possessions, an interference with that right had to strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. There had also to exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised. In that respect, States enjoyed a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement were justified in the general interest for the purpose of achieving the object of the law in question. In determining whether a fair balance existed, the State enjoyed a wide margin of appreciation, with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement were justified in the general interest for the purpose of achieving the object of the law in question. In spheres such as housing, the Court would respect the legislature's judgment as to what was in the general interest unless that judgment was manifestly without reasonable foundation. Notwithstanding the fact that the general position in English law was that the expiry of a limitation period barred the remedy but not the right, where an action for recovery of land was statute-barred, termination of the title of the paper owner did little more than regularise the respective positions, namely, to confirm that the person who had acquired title by 12 years' adverse possession was the owner. Moreover, the law reflected the aim of the land registration legislation. Such a regime could not be considered as “manifestly without reasonable foundation”. The interference with the applicant companies' possessions was a control of use, rather than a deprivation of possessions, such that the case-law on compensation for deprivations was not directly applicable. In the cases in which a situation was analysed as a control of use, even though the applicant had lost possessions, no mention was made of a right to compensation. A requirement of compensation for the situation brought about by a party failing to observe a limitation period would sit uneasily alongside the very concept of limitation periods, whose aim is to further legal certainty by preventing a party from pursuing an action after a certain date. It should be recalled that the applicant companies were not without procedural protection. While the limitation period was running, and if they failed to agree terms that put an end to the “adverse possession”, it had been open to them to remedy the position by bringing a court action for re-possession of the land. Such an action would have stopped time running.

After expiry of the period, it had remained open to the applicant companies to argue before the domestic courts, as they had, that the occupiers of their land had not been in “adverse possession” as defined by domestic law. While it would be strained to talk of the “acquired rights” of an adverse possessor during the currency of the limitation period, it had to be recalled that the registered land regime in the United Kingdom was a reflection of a long-established system in which a term of years' possession gave sufficient title to sell. Such arrangements fell within the State's margin of appreciation, unless they gave rise to results which were so anomalous as to render the legislation unacceptable. The acquisition of unassailable rights by the adverse possessor had to go hand in hand with a corresponding loss of property rights for the former owner. It was not disputed that the land lost by the applicant companies, especially those parts with development potential, would have been worth a substantial sum of money. However, limitation periods, if they were to fulfil their purpose had to apply regardless of the size of the claim.

The value of the land could not therefore be of any consequence to the outcome of the present case. It followed that the fair balance required by art 1 of the First Protocol was not upset and that there had been no violation of that article; James v UK [1986] ECHR 8793/79; AGOSI v UK [1986] ECHR 9118/80 considered.

Case annotations in other services: JA Pye (Oxford) Ltd and another v United Kingdom [2007] ECHR 44302/02; [2005] All ER (D) 199 (November); [2002] 3 All ER 865); James v UK [1986] ECHR 8793/79; AGOSI v UK [1986] ECHR 9118/80
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Statutory Instruments

1. Housing Act 2004 (Commencement No 9) (England and Wales) Order 2007

Number: 2007/2471
Enabling power: Housing Act 2004
Commencement: 10 September 2007
Summary:  Brings part 5 of (and schedule 8 to) the Housing Act 2004 into force. These provisions relate to home information packs. They are being brought into force in relation to residential properties with three bedrooms, other than properties to which regulation 17C (which imposes minimum energy performance requirements) of the Building Regulations 2000 applies.
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2. Works on Common Land (Exemptions) (England) Order 2007

Number: 2007/2587
Enabling power: Commons Act 2006
Commencement: 1 October 2007
Summary: Prescribes exemptions to the prohibition in section 38(1) of the Commons Act 2006 on the carrying out, without the consent of the Secretary of State, of any restricted works on land to which that section applies.
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3. Countryside and Rights of Way Act 2000 (Commencement No 14) Order 2007

Number: 2007/2595
Enabling power: Countryside and Rights of Way Act 2000
Commencement: 1 October 2007
Summary: Brings into force on 1 October 2007, in relation to England, the remainder of section 69 of the Countryside and Rights of Way Act 2000.

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Features

1. DCLG draws up plans for architects

Communities and Local Government (CLG) recently consultated on draft regulations to amend the Architects Act 1997 to implement European Directive 2005/36/EC. The Directive was adopted on 7 September 2005 and all member states must transpose it into domestic law by 20 October 2007, when it comes into force. The Directive consolidates and modernises 15 existing directives covering all recognition rules, except for those applicable to lawyers, activities in the field of toxic substances and commercial agents. This is the first comprehensive modernisation of the EU system since its introduction more than 40 years ago.

The intention behind the Directive is to make it easier for qualified professionals (architects, accountants, teachers, health professionals, etc) to practise in European countries other than their own, with a minimum of red tape but with safeguards for public health and safety and consumer protection. It provides for the mutual recognition of diplomas, certificates and other evidence of formal qualifications in order to assist the free movement of professionals throughout the EU.

The Directive covers the seven sectoral health professions: doctors, dentists, pharmacists, nurses and midwives, architects and veterinary surgeons. These professions are so named because currently each of them is subject to a separate directive; in respect of architects that is currently Directive 85/384/EEC. Directive 2005/36/EC brings together all of these separate regimes into the one Directive, and revokes all the individual directives.

The essential feature of the regime for the sectoral professions is that the training conditions in member states have been harmonised, so that if a qualification is specified in the Directive, that qualification is subject to mutual automatic recognition across all the member states. Other government departments are drafting implementing legislation in respect of the other sectoral professions. Consultation on the draft regulations for architects closed on 5 October and CLG said that it will recommend any amendments to ministers before laying it before Parliament in the autumn.

(21/09/07)
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2. ECHR rules against landowners over squatter compensation

A property developer has lost a landmark legal battle to gain compensation for land lost to squatters after the European Court of Human Rights ruled that UK law had not breached his human rights. The ruling means that the government will not have to compensate others who find themselves in a similar position to the Oxfordshire house builder, JA Pye.

Two local farmers took possession of the land (which is worth an estimated £21 million) in 1997 via the English law of adverse possession, commonly known as “squatter’s rights” after they were granted permission to graze cattle on the land for 10 months in 1983. Pye refused to renew the agreement as the developer intended to develop the land. However the farmers continued to use the land for several years, and due to the fact that Pye did not challenge this, the farmers claimed squatter's rights.

Johnny Kelly from Macfarlanes says that landowners need to be more aware of the law concerning property rights: "In this case, the claimants allowed a neighbouring farmer to use land for 12 years. They could easily have stopped the farmer acquiring squatter’s rights, but they didn’t. The rule at the time was that the farmer gets the land. This rule may be draconian but it is well known, and Strasbourg has decided that it’s not a breach of the claimants’ human rights."

In 2000, Pye tried to recover the land but lost its case at the High Court. The developer then successfully appealed the decision only to lose again in the House of Lords in 2002. Pye then argued in the European Court of Human Rights that the UK government had breached its human rights to “enjoy its land” because it had waited too long before tightening up the law of adverse possession.
Despite the UK Land Registration Act 2002 making it much more difficult for squatter’s to claim land, Pye’s lawyers successfully argued that by not updating the laws for such a long time, the UK had breached Pye’s human rights and should therefore compensate its loss.

The government challenged the argument and successfully overturned the decision, which cannot be appealed. This case would have potentially exposed the government to thousands of similar cases from other disgruntled landowners worth millions of pounds.

Kelly commented that the law concerning squatter’s rights needs updating: "The human rights convention was drawn up after 1945 in reaction to the Nazis’ persecution of minorities and the plundering of their property. It was probably not intended as a device to allow commercial companies to wriggle out of long established statutes."

He concluded by stating that the solution for house builders and landowners is to keep an eye on their property and deal with unauthorised occupiers promptly. "It’s not difficult to stop such people gaining title by adverse possession, so long as you don’t let things drift. Lawyers need to be aware that there are limits to human rights arguments. The backlash against indiscriminate reliance on the Human Rights Act may have started."

Relevant cases: JA Pye (Oxford) Ltd and another v United Kingdom [2007] All ER (D) 177 (August)
Relevant legislation: Land Registration Act 2002

(12/09/07)
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Articles

1. Practice points: mending fences

Journal: Law Society Gazette
Citation: (2007) LS Gaz, 20 September, 32
Issue date: 20 September 2007
Author: Andrew Smith
Summary: Considers solicitors' moral obligations when dealing with boundary disputes
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2. Ain’t you got no homes to go to?

Journal: Taxation
Citation: 20 September 2007, 310
Issue date: 20 September 2007
Authors: John Chaplin and Ash Majithia
Summary: Outlines the reasons for HM Revenue and Customs’ decision not to call time on pub managers' accommodation tax breaks.
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3. Don't act too soon

Journal: Building
Citation: 14 September 2007, 58
Issue date: 19 September 2007
Authors: Adam Harris and Sanjeev Ahuja
Relevant cases: Charles Church Developments Ltd v Stent Foundations and another [2006] All ER (D) 54 (December)
Summary: Discusses how pre-action protocols have become increasingly part of the dispute resolution landscape. Considers that there are now nine protocols governing claims across the spectrum from construction to clinical negligence with the purpose of allowing exchanges between parties to occur before proceedings commence, in the hope that a settlement can be achieve and proceedings avoided. Looks at what happens if parties do not comply with the relevant protocol as in the recent case of Charles Church Developments Ltd v Stent Foundations.
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4. Say what you mean

Journal: New Law Journal
Citation: 157 NLJ 1263
Issue date: 14 September 2007
Author: Natalie Johnston
Relevant legislation: Law of Property (Miscellaneous Provisions) Act 1989
Summary: Considers whether a party can rely upon pre-contractual statements in lease negotiations to create a contractual obligation.
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5. Tax treatment of leases

Journal: Tax Journal
Citation: Issue 900, 13
Issue date: 10 September 2007
Author: Jane Feeney
Summary: Considers the tax treatment of surrenders and assignments of leases.
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6. Be prepared – and benefit

Journal: Estates Gazette
Citation: 8 September 2007, 292
Issue date: 8 September 2007
Authors: Tim Dixon, Miles Keeping and Claire Roberts
Summary: Discusses how commercial property will be affected by the Energy Performance of Buildings Directive.
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Discount offers

1. How to book and claim discounts

  • Law Society Publishing: quote “Property Section” to receive a 20 per cent discount off related titles (excluding directories) via Prolog at The Law Society, PO Box 99, Sudbury Suffolk CO10 2SN, telephone 0870 850 1422, fax 01787 313 995 or email lawsociety@prolog.uk.com.
  • LexisNexis Butterworths: quote “Law Society Section discount offer” when ordering via www.lexisnexis.co.uk, customer.services@lexisnexis.co.uk or 020 8662 2000.

This e-alert is not intended to provide comprehensive records of information concerning the property sector. If you have any feedback or suggestions, please email propertysection@lawsociety.org.uk. This e-alert was created in conjunction with LexisNexis UK Legal Updater Service. For further information about any of the articles, please contact sabina.smith@lexisnexis.co.uk. The views expressed by the Legal Analysis interviewees are not necessarily those of the proprietor.
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