Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

6.Controls that interfere with peaceful enjoyment

[5.35] Controls may infringe the guarantee of peaceful enjoyment of property, a protection in play, for example, in relation to planning blight,106 the creation of a nature reserve,107 or modification of restrictive covenants.108

H. RESPECT FOR THE HOME AND FAMILY LIFE

1.The article 8 right to the home

[5.36] Disputes affecting domestic property invoke article 8(1) of the Convention which guarantees that:

“Everyone has the right to respect for . . . his home . . .”

It is clearly in play with domestic repossessions and planning decisions affecting homes,109 even a home which breaks planning rules,110 but also the office of a professional person.111 Property never occupied as a home does not count.112

2.Justification of interferences with the home

[5.37] The right to respect for the home is heavily qualified by the public interest justification set out in paragraph 2 of Article 8 in these terms:

“There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”113

Examples of interferences that are usually justified are:

(1) Planning enforcement

[5.38] Human rights are in play in relation to a home occupied in breach of planning regulations.114 But planning rules are generally within the wide margin of appreciation which States enjoy in the sphere of planning permission and the availability of procedural safeguards.115

106Sporrong v. Sweden, 7151/75, (1982) 5 EHRR 35 (compulsory purchase blocked use of land for 23 years).

107Matos e Silva v. Portugal, 15777/89, (1997) 24 EHRR 573, 590–593.

108Scott v. UK, 10741/84, (1984) 41 Decisions and Reports 226; N Dawson [1986] Conv 124.

109Qazi v. Harrow LBC [2001] EWCA Civ 1834, [2002] 1 HLR 14 at 274; J Luba (2002) 6 LT Rev 9.

110Buckley v. UK, 20348/92, (1996) 23 EHRR 101.

111Niemietz v. Germany, 13710/88, (1993) 16 EHRR 97.

112Loizidou v. Turkey, 15318/89, (1997) 23 EHRR 513.

113Howard v. UK, 10825/84, (1987) 9 EHRR 116.

114Bryan v. UK, 19178/91, (1995) 21 EHRR 342; Buckley v. UK, 20348/92, (1996) 23 EHRR 101.

115McGonnell v. UK, 28488/95, (2000) 30 EHRR 289.

(2) Residence conditions – justification

[5.39] Residence conditions designed to protect local populations against outside buyers of homes have been allowed in Guernsey116 and are now legislative in Wales.117

(3) Repossession of a home

[5.40] A court order for repossession of domestic property is a state interference with a house, but the interference involved in a lawful repossession is justified. Proper exercise of the judicial discretion is a sufficient display of respect towards the home of the defendant tenant118 or borrower.119 However, it is possible for substantive laws to infringe a home, for example rules about notices to quit,120 and also rules about access to housing benefit.121 Procedures with no room for the exercise of a judicial discretion have also survived scrutiny – where a warrant for possession is issued122 or where Parliament has laid down mandatory grounds for possession.123

(4) Searches

[5.41] Homes can always be searched in connection with the investigation of criminal offences and judicial processes such as freezing orders, but violations may occur if the terms of the lawful authority are exceeded.

3.Environmental pollution

[5.42] Environmental pollution could in theory be sufficient to constitute an interference with the home, but only when it is severe.124 Human rights principles cannot be used to reverse the law of domestic repairs125 – a landlord of a home rendered uninhabitable by condensation cannot be ordered to make it inhabitable if the cause of the problem is an inherent defect rather than a disrepair. One successful case was Marcic v. Thames Water Utilities126 at first instance in which damages were awarded against

116Gillow v. UK, 9063/80, (1989) 11 EHRR 335; Fearon v. Irish Land Commission, EuCtJ Case 182/83, [1984] ECR 3677.

117Housing (Wales) Act 2001 ss 4–6.

118Lambeth LBC v. Howard [2001] EWCA Civ 468, (2001) 33 HLR 58.

119Albany Home Loans v. Massey [1997] 2 All ER 609, 612g–h.

120Qazi v. Harrow LBC [2001] EWCA Civ 1834, [2002] 1 HLR 14 at 274; J Luba (2002) 6 LT Rev 9.

121Tucker v. SS for Social Security [2002] HLR 27 at 500; R(JR) Painter v. Carmarthenshire CC [2002] HLR 23 at 447.

122St Brice v. Southwark LBC [2002] EWCA Civ 1138, [2002] 1 WLR 1537 (fresh exercise of discretion not required for an administrative step to give effect to an existing court order).

123Poplar Housing and Regeneration Community Ass v. Donoghue [2001] EWCA Civ 604, [2002] QB 48 (removal of interim accommodation from those found to be intentionally homeless); Sheffield CC v. Smart [2002] EWCA Civ 4, [2002] HLR 34 at 639 (eviction of homeless from temporary accommodation).

124Lopez Osta v. Spain, 16798/90, (1995) 20 EHRR 277 (air pollution); R(JR) Malster v. Ipswich BC [2001] EWHC Admin 711, [2002] P & CR 14, Sullivan J.

125Lee v. Leeds CC [2002] EWCA Civ 6, [2002] HLR 17 at 367.

126[2001] EWHC Techno 421, Judge Harvey QC, on appeal [2002] EWCA Civ 64, both reported at [2002] QB 929; (No 2) [2002] QB 2003.

a drainage authority which failed to implement works to prevent Marcic’s home being flooded whenever there was heavy rain. Noise is also an important issue which, in a severe case like Hatton v. UK,127 concerning flights out of Heathrow between 5 and 5.30 in the morning, may violate the rights of the homeowners in the flight path.

4.Respect for family life

[5.43] States must respect the right of humans to a family life, including the right to marry and to found a family.128 Article 8 was successfully invoked by the Barclay brothers to challenge the feudal inheritance laws of the island of Sark. The brothers had bought the island of Brecqhou but the law of primogeniture required that it be left to the eldest son of David, since he happened to be the elder of the two twins born some ten minutes before Frederick. This artificial and absurd rule infringed the brothers’ fundamental right to make wills as they chose.129 A whole series of cases following Marckx v. Belgium130 has removed the discrimination suffered under the succession laws of many European states by illegitimate children.

I.DISCRIMINATION

1.Article 14

[5.44] Discrimination as such does not offend the European Convention though a freestanding protocol attacking discrimination itself is under discussion.131 Article 14 guarantees freedom from discrimination in the enjoyment of Convention rights.132 but it is autonomous133 in the sense that a breach of article 14 may occur the underlying Convention right has not been broken in isolation.

Legislation differentiating between two classes of property owners requires objective justification. In Larkos v. Cyprus134 a civil servant was allocated rented accommodation by the government under the terms of an administrative order but when he retired they evicted him, arguing that his right to accommodation ended with his employment. Given that the tenancy agreement was silent as to the consequences of his retirement, this discriminatory treatment lacked any reasonable or objective justification.

12736022/97, (2002) 34 EHRR 1.

128Art 12; X, Y, Z v. UK, 21830/93, [1997] 2 FLR 892 (not just within marriage).

129The issue was widely reported in October 1998; the whole feudal system in which membership of the legislative assembly is associated with ownership of a fief is now under attack: Guardian, August 24th 2002.

13013092/87, (1979) 2 EHRR 330.

131Protocol 12; C McCafferty [2002] 03 HR 20.

132Mellacher v. Austria, 10522/83, (1989) 12 EHRR 391, 413; National and Provincial BS v. UK, 21319/93, (1998) 25 EHRR 127, 173–175.

133Weidlich v. Germany, 19048/91, [1996] March 4th.

13421515/95, (2000) 30 EHRR 597; Chassagnou v. France, 25088/94, (2000) 29 EHRR 615 (large and small landowners treated differently).

2.Variant rules of property law

[5.45] Property law consists of a set of rules which differentiate between different cases applying one set of outcomes to one group of people and another set of outcomes for another. For example, a right of enfranchisement is given to a leaseholder with a long leasehold term exceeding 21 years but not to a tenant with a 20 year lease, a leaseholder paying a low rent qualifies to buy at one price while a leaseholder with higher rent has to pay more.135 Attacks on discrimination under article 14 have such great potentiality because the human rights of those excluded may be infringed if the lines are drawn arbitrarily or without sufficient objective justification. The details of the enfranchisement legislation survived in James136 and of the nationalisation legislation in Lithgow.137 However, exemption of large landowners from the scheme to provide compulsory hunting rights over open land in rural France created an unjustified discrimination against the owners of small estates who were caught in the net, whether they liked it or not, and it was also dubious that the scheme applied to a random selection of French départements.138

3.Gays

[5.46] Discrimination against homosexuals is gradually being eliminated by repeated recourse to human rights law. Many gays forced out of the armed forces have obtained redress in Strasbourg and another recent case has led to the equalisation of the age of consent.139 Government proposals will provide legal recognition to homosexual partnerships after registration,140 though this will not extend to unmarried heterosexual cohabitees because of Treasury opposition to the cost.

The striking potentiality of human rights jurisprudence is illustrated by Mendoza v. Ghaidan141 in which the Court of Appeal revisited and “overruled” the decision of the Lords in Fitzpatrick v. Sterling Housing Association.142 The earlier case decided that a homosexual partner could not succeed to a Rent Act 1977 tenancy on the death of his partner as a “spouse” of the deceased tenant, but only as a family member at a less favourable rental and with inferior security of tenure.143 The claim by Mendoza has established that this discriminated unfairly against homosexual partners. The succession provisions of the Rent Act 1977 are to be read so that the phrase “as his wife or husband” now includes a homosexual partner.144 Sexual orientation as a

135P Sparkes NLT ch 15.

1368795/79, (1986) 8 EHRR 123.

1379006/86, (1986) 8 EHRR 329. Exemption from CPO on the basis of residence in Ireland did not discriminate against the nationals of other EU states: Fearon v. Irish Land Commission EuCtJ Case 182/83, [1984] ECR 3677.

138Chassagnou v. France, 25088/94, (2000) 29 EHRR 615.

139Sutherland v. UK, 25186/94, [2001] Times April 13th.

140Announcement by Barbara Roche, Minister for Social Exclusion and Equalities, ODPM, December 6th 2002; a CP is promised for Summer 2003.

141[2002] EWCA Civ 1533, [2002] 4 All ER 1162.

142[2001] 1 AC 257, HL; SM Cretney & FMB Reynolds (2000) 116 LQR 181; K McNorrie [2000] 4 Edin L Rev 256; N Roberts [2000] 30 Fam Law 417; A Bainham [2000] CLJ 39; A Samuels (2001) 22 Stat L Rev 154.

143P Sparkes, NLT, 118–120.

144As suggested in Fitzpatrick [1998] Ch 304, 338–339, Ward LJ dissenting in CA.

ground for differentiation has no proper and rational justification. Anomalies will arise unless the human rights jurisprudence is widened to prevent any discrimination between heterosexuals who are married and those in de facto relationships. Transsexuals form another disadvantaged group that has recently scored several successes in Strasbourg.145

4.Gypsy building restrictions and discrimination

[5.47] Gypsies favour a nomadic lifestyle that often brings then into conflict with the communities in which they stop and one which may well cut across the rules of property law and planning regimes, especially enforcement procedures, since results are often indirectly and unintentionally discriminatory. Most article 8 cases have failed,146 but there have also been major successes.147

5.Accommodation of the disabled

[5.48] Substantial damages may be awarded for failing to meet domestic law standards for disabled accommodation.148

J.FUNDAMENTAL TRIAL RIGHTS

1.Trial rights

[5.49] Article 6 guarantees due process for the resolution of civil claims,149 that is the right to a fair and public hearing, without undue delay, and before an independent and impartial tribunal.150 The event which brings into play the article 6 guarantee is the determination of an individual’s civil rights. Any litigation affecting rights to land or other property is certainly within the scope,151 though only the primary determination of the right is covered and not subsidiary procedural steps.152 Domestic law

145 Goodwin v. UK, 28957/95, (2002) 35 EHRR 447; I v. UK, 25690/94, [2002] 2 FCR 613. But the Government is fighting a case for recognition of the right to marry, Beringer v. Beringer which is before the HL in January 2003.

146Buckley v. UK, 20348/92, (1997) 23 EHRR 101; Andrew Smith v. UK, 26666/95, (2001) 33 EHRR 20.

147Coster v. UK, 24876/94, (2001) 33 EHRR 20 at 479; Beard v. UK, 24883/94 (2001) 33 EHRR 19 at 442; Lee v. UK, 25289/94, (2001) 33 EHRR 29 at 677; Jane Smith v. UK, 25154/94, (2001) 33 EHRR 30 at 712; Chapman v. UK, 27238/95, (2001) 33 EHRR 18 at 399; South Buckinghamshire DC v. Porter [2001] EWCA Civ 1549, [2002] 1 All ER 425; Clare v. SS for Environment T&R [2002] EWCA Civ 819, [2002] JPEL 1365.

148R(JR) Bernard v. Enfield BC [2002] EWHC 2282, [2002] Times November 8th.

149Criminal trial procedure is subject to additional controls under art 6(2); anti-social behaviour orders are civil rather than criminal: R(JR) McCann v. Manchester Crown Ct [2002] UKHL 39, [2002] 3 WLR 1313; so are orders to confiscate the proceeds of crime: Phillips v. UK, 41087/98, (2001) 11 BHRC 290; there are many UK cases.

150Scollo v. Italy, 19133/91, (1996) 22 EHRR 514, 530–532; National and Provincial BS v. UK, 21319/93, (1998) 25 EHRR 127, 175–183; Terra Woninger v. Netherlands, 20641/92, (1997) 24 EHRR 456; Vacher v. France, 20368/92, (1997) 24 EHRR 482.

151Sporrong v. Sweden, 7151/75, (1982) 5 EHRR 35; Lafarge Redland Aggregates v. Scottish Ministers

[2000] SLT 1361, 1368, [26], Lord Hardie; and many other cases.

152St Brice v. Southwark LBC [2001] EWCA Civ 1138, [2002] 1 WLR 1537.

determines what rights are guaranteed so the Convention is not a vehicle for complaints about irrationalities in the property system.153

2.Administrative decisions

[5.50] Case law154 has extended article 6 to encompass the making of administrative decisions such as the grant of a gaming licence,155 or a decision to expropriate land. The public authority making such a decision necessarily does not meet the conditions to be an independent judicial tribunal but the entire procedure is compliant if there is a full appeal to an independent court.

Planning procedures must therefore comply with article 6. Especial difficulty is caused by cases where a minister has power to call in a planning decision for personal decision. An enforcement decision called in to the Department of Environment survived scrutiny in Bryan v. United Kingdom156 because the minister’s decision was subject to judicial review in the High Court, a conclusion supported by the leading domestic case, Regina (Alconbury Developments) v. Secretary of State for Environment Transport and the Regions.157 It explores the calling in procedures which apply to large scale projects such as the proposed development of 1000 acres of Alconbury airfield near Huntingdon, just off the London to Edinburgh main line; following a refusal of permission by the council, the Secretary of State then recovered the decision for himself on the ground that it was a major proposal of more than local importance. His decision was a “determination of a civil right” of the developer, and the ministerial involvement was not independent, but article 6 was nevertheless complied with because of the possibility of judicial review of the decision. The grounds for judicial review must be wide enough to include a consideration of proportionality.

3.Full review

[5.51] Many procedures fail to meet Convention standards at the first instance stages. Independence may be sufficiently assured by a provision for an appeal to the courts, which are independent, providing that the grounds of appeal are sufficiently wide. If a homeless person is refused an allocation of housing he can request a review by a panel composed of officers of the housing authority, who clearly lack independence. Human rights compliance is ensured by the provision for an appeal to a county court which has full jurisdiction to review the matter for errors of law.158

Another problem arises where Parliament has laid down a procedure which precludes judicial consideration of the merits of the case. A notable example is the

153Domestic law may fall foul of art 13 if it fails to provide an adequate remedy for a breach of a human

right.

154Le Comte v. Belgium, 6878/75, (1982) 4 EHRR 1; Albert v. Belgium, 7299/75, (1983) 5 EHRR 533, [29]; Golder v. UK, 4451/70, (1975) 1 EHRR 524.

155Kingsley v. UK, 35605/97, (2002) 35 EHRR 177.

156Bryan v. UK, 19178/91, (1995) 21 EHRR 342; R(JR) Alconbury, [2001] UKHL 23, [2001] 2 All ER 929, [101–117], Lord Hoffmann.

157[2001] UKHL 23, [2001] 2 All ER 929.

158Begum v. Tower Hamlets LBC [2002] EWCA Civ 239, [2002] 2 All ER 668; confirmed [2003] UKHL 5; Adan v. Newham LBC [2001] EWCA Civ 1916, [2002] 1 WLR 2120.

procedure for introductory tenancies in the public sector by which a public sector tenant obtains a probationary tenancy without full security of tenure for the first year. The housing authority has an unfettered discretion to end the tenancy during that year, though it is subject to a review procedure and that is subject to judicial review. This procedure has survived several challenges and appears to be Convention compliant.159

Judicial review is available of any act of a public authority that is incompatible with any Convention right,160 unless, that is, the act is in accordance with incompatible primary legislation.161 Grounds for judicial review will take into account the proportionality principle of human rights jurisprudence.

4.Access to court

[5.52] Access to a court is a fundamental entitlement to allow a person’s civil rights to be determined.162 Where property rights can be determined by self help procedures like forfeiture of a lease by the landlord’s peaceable re-entry163 distress for rent by the seizure and sale of the tenant’s goods,164 or the removal of trespassers from land by the order of a senior police officer.165 Access to the court could also be removed by issuing a public immunity certificate,166 by requiring security before proceedings are issued167 or by restrictions on legal aid. Enforcement of time limits is perfectly proper,168 and by extension so is the limitation principle that hands title to an adverse possessor after 12 years is permitted169 and this is not a deprivation of possessions. The right to a court can be waived, for example by an arbitration clause.

5.Adequate trial procedure

[5.53] The basic complaint under article 6 is that the state has failed to provide an adequate court.170 Hearings must be public,171 “equality of arms” must be maintained between litigants, and remedies must be effective and enforced adequately.172 Delay is a problem in other jurisdictions but the new case management functions of the Woolf

159R(JR) McLellan v. Bracknell Forest BC [2001] EWCA Civ 1510, [2002] 1 All ER 899.

160HRA 1998 s 6(1).

161As defined in s 21.

162Wilson v. First National Trust (No 2) [2001] EWCA Civ 633, [2002] QB 74.

163G Watt “Property Rights and Wrongs: The Frontiers of Forfeiture” ch 7 in E Cooke Modern Studies in Property Law 1 – Property 2000 (Hart, 2001).

164Fuller v. Happy Shopper Markets [2001] 1 WLR 1681.

165Criminal Justice and Public Order Act 1994 s 61; R(JR) Fuller v. Dorset Chief Constable [2001] EWHC Admin 1017, [2002] 3 All ER 57, Stanley Burnton J.

166Devlin v. UK, 29545/96, [2002] Times November 9th.

167R v. Lord Chancellor ex p Lightfoot [2000] QB 597, CA (no breach on facts).

168Arogundade v. Brent LBC [2002] HLR 18 at 397.

169JA Pye (Oxford) v. Graham [2002] UKHL 30, [2002] 3 All ER 865, [65], Lord Browne-Wilkinson; Family H Ass v. Donellan [2002] 1 P & CR 34 at 449, Ch D

170Locabail UK v. Waldorf Investment Corp (No. 4) [2000] Times June 13th, Evans-Lombe J.

171CPR 39; R(JR) Pelling v. Bow Ct Ct [2001] UKHRR 165, QBD Admin.

172Immobiliare Saffi v. Italy, 22774/93, (2000) 30 EHRR 756 (eviction took 13 years and after 11 unsuccessful attempts); Spadea v. Italy, 12868/87, (1996) 21 EHRR 482; Scollo v. Italy, 19133/91, (1996) 22 EHRR 514.

is the main characteristic of a property right, since personal rights are binding only between the original parties, a linkage strictly a non-sequitur2 but deeply rooted in the common law.

Land law’s (decidedly unsexy) threesome can be illustrated thus:

A C

B

Figure 6-1 A property law triangle

The owner of a piece of land (A) creates a property right in favour of B, which then binds a purchaser (C). If in 19703 A promised to pay B a rentcharge of £52 a year secured on A’s land a property right was created, but if A merely promised B that whoever lived in A’s house would pay B £1 per week for 20 years for the supply of a dozen free range eggs, the contract was personal.4

2.Property law between the original parties

[6.04] It is vitally important to determine whether a particular issue arises between the holder of an adverse interest and the person who created it (B–A) or as against a future owner of the land (B–C). In the former case a personal contract often suffices but property issues may also arise between the original parties. Formality is required for the creation of property rights, even between the original parties,5 and also vitally because any claim to a share of a home can only be by way of a property claim to a constructive trust. If any interest exists it must be a property interest.

3.Endurability

[6.05] Property law is always in play when the question of enforcement arises against a successor to the person who originally created the burden. Privity of contract exists between the original parties (A–B), but a proprietary right is required when enforcement is sought against C. Personal rights are differentiated from property rights by the forced transfer that follows bankruptcy and also, more particularly, by a sale. The correct principle is that property rights may endure because a question of priority is

2K Gray & SF Gray “The Idea of Property in Land” ch 1 in Bright & Dewar, 36; S Bright “Of Estates and Interests: A Tale of Ownership and Property Rights” ch 21 in Bright & Dewar, 541-546; Panesar’s

General Principles ch 10.

3Before the Rentcharges Act 1977.

4A purchaser takes free of personal claims to damages: Att-Gen v. Biphosphated Guano Co (1879) 11 Ch D 327, CA; Reeves v. Pope [1914] 2 KB 284; National Provincial Bank v. Ainsworth [1965] AC 1175, 1225, 1237-1238, 1259.

5See below [7], [22].