WELSH DEVOLUTION
And the role of Legislative Committee post Government of Wales Act 2006 (came into effect April 2007)

1. Background

The start of the Welsh Assembly was peculiar; it was a body with no formal division between the executive and the legislature and with no primary law making powers. Despite this, there was an immediate shift away from ‘strong committee system’, envisaged by the Government of Wales Act (hereinafter referred as ‘GWA’) 1998, to the cabinet model.[1] Secondly, when it came to a ‘National’ representative institution capable of making laws[2], it became painfully clear that the devolution was in reality partial.[3] A good example would be the first Orders in Council[4] which was highly restrictive in nature and granted very little substantive powers.

However, as the Richard Commission noted that it would be ‘inaccurate to think of the [1998 settlement] as an executive devolution.’[5] Nevertheless, the legislative competence has rapidly increased in the fields originally set out under A Voice for Wales.[6] R. Rawlings rightly notes that, not only the Orders in Councils awarding competence to the Assembly have become wider in their scope; they have also become more frequent.[7] These greater powers have meant that the Assembly has been able to legislate e.g. by way of ‘Assembly Orders’ in greater areas.

2. The legislative Committee under the 1998 Act

2.1. Legal Base

To review inter alia Assembly Orders, Section 58 (1) of the GWA 1998 required the creation of Legislative Committee. While drafting the 1998 Government of Wales bill, keeping in view the ‘corporate model’, it was anticipated that the Legislative Committee would act as a ‘species of internal audit’.[8]

2.2. Committee Composition

The guidance for the composition of the Committee is provided by Section 59 of the GWA 1998 and the Standing Order (hereinafter referred as ‘SO’) 11.1, which provides that there be at-least 7 and no more than 11 members. The SO also provides that none of the Assembly Cabinet members’ shall be a member of the Committee. Section 59 (2) of GWA requires that there needs to be a balance of representation, reflecting the number members of individual parties in the Assembly. The Chair of the Committee is elected by the Assembly and (s)he cannot be member of the political party in government.[9]

2.3. Responsibilities

Under Section 58 (4) of the GWA 1998, the Committee is required to consider any subordinate legislation before the Assembly.[10] The Section requires that the Committee bring to the Assembly’s attention any matter that would be of its concern.[11]

SO 11 provides the detailed responsibilities of the Committee and SO 11.7 sets out the matters that need to be considered by the Committee. For example, whether the proposed measure is within assembly’s legislative competence or makes unusual or unexpected use of power (ultra vires),[12] whether it has retrospective effect,[13] whether it has drafting defect or fails to satisfy legal requirements, [14] or has inconsistency with the English and Welsh text[15] etc. On the 12th of July 2005, the Assembly approved in Plenary two additions matters which the Committee must address when assessing a draft measure, first, whether the draft legislation is gender specific and second, if the measure is not made in both languages.

2.4. Operations

By its’ last meeting of the second committee on 20th March 2007, the Committee had reviewed in total 1513 pieces of legislation. In practice it would present its’ concerns, corrections and recommendations to the Assembly.[16] Of the recommendations, well over half were related to ‘defective drafting’ or ‘inconsistency with the English and the Welsh texts’.[17] The fact that in the eight year period, there has not been a single challenge in Court of any Assembly measure goes some way for the quality of work done by the Committee. Out of all the recommendations almost all of them had been adopted by the assembly.[18]Furthermore, in many cases, the legal advisors to the Committee were consulted at early stages of the drafting.

The working of the Committee is interesting,[19] it meet every week whenever the Assembly is in session, SO 8.22 requires that all draft be provided to committee members two days before the meetings and following the meeting the recommendations are laid before the Assembly almost always the same day. Despite the limited time if there is a need the relevant Ministers can be called in, should a problem/ confusion regarding some proposed measure arise.[20] It is also interesting to note that there is an informal co-operation that exists between the government and the committee through the respective lawyers and many disputes are settled through this backdoor channel.[21]

During our meeting with the lawyers to the Committee, on the 20th March 2007, two points were raised which are of general importance. First, the committee ensures that there is no discussion on the policy aspect of the proposed measures. Secondly, with current membership the level scrutiny that has been possible in the past will not possible in the future due the gradually increased work load. I will look at these issues in more detail in following paragraphs when looking at post-2007 approach.


3. Work of the Legislative Committee under Government of Wales Act 2006

3.1. General

We know that under the GWA the Assembly has primary law making powers and that there is formal division between the executive and the legislature. While, before the 2006 Act the Assembly was involved with all the Communication and Orders in Council giving powers to the Welsh Assembly Government, now it is quite possible that the Assembly will be left out. This situation gets compounded by the ever increasing number measure coming under executive procedure.

3.2. Proposed Operation

The Legislative Committee on 23rd May, 2006 approved a paper[22] on its future workings post-2007. As we have seen, major part of the time is taken up by the review of differences English and Welsh texts, it was suggested that the best way to produce bi-lingual legislation would be co-drafting as this will give the Committee greater time and freedom to work on other areas. However to achieve this, more drafters would need to be employed.[23]

It is also proposed that the current role of technical scrutiny be continued and committee should be free to consider the merits of the proposed measure. The proposed SO for the legislative Committee post 2007, makes this distinction very clear. Under the proposed SO 15 there are two kinds of matters, those which the Committee must consider when reviewing any measure and matters which the Committee may consider. Most of the matters that are under the must category are those carried forward from previous two committees, e.g. whether a proposed measure is intra vires and has no retrospective effect etc. The addition seems to be that the Committee is required to consider whether there has been an unjustifiable delay in the proposed measure being brought before the Assembly.

3.3. Discussion of Merits by the Committee

A novel development has been the addition of matters that the committee ‘may’ consider. Although it seems that care has been taken to ensure the Committee room does not become an arena for policy debates. For instance, it was proposed by the committee paper[24] that matters discussed will not be of policy related, but only discuss the merits. For example, whether the proposed measure is the most effective way of achieving the objective it seeks to attain. To achieve this, the Committee may consider, inter alia the impact of the measure on the Welsh Consolidation Fund, e.g. if it requires payments to be made to the Government or results in a commitment on behalf of the Assembly. Others matters that may be considered are public policy, inappropriate application of EC law, or unsatisfactory outcome relating to the proposed measure etc.[25]

It is worth highlighting that the discussion on merits will invariably require a discussion on policies. Therefore, it will be for the Chair to ensure that the debates stay on track.

It may also be suggested that even if the Committee only discusses the merits of the proposed measures, the committee should not only be in a position to invite the relevant minister (or any expert on his/ her behalf) to give evidence, but also invite independent (non-partisan) experts to give their opinions.

Further more the Committee should be in a position to review any proposed Assembly measure which will be confer extra powers to the Welsh Assembly Government. [26] This will act as an extra check. However it is possible that there are other committees that would be better positioned to scrutinize the executive.[27]


4. Conclusion

There is no formal channel of communication between the Welsh Assembly and the Westminster Parliament. This connection is important, firstly because now the Welsh Assembly Government is a separate legal body and secondly, to ensure that there is an appropriate check on the powers being conferred to the Welsh Ministers directly via Order in Councils. In order to achieve this, the legislative committee can act as the connection between the Welsh Assembly and the UK Parliament. The Committee is required to report on the powers being given directly to Welsh Minister.[28] It can bridge the apparent communication gap when it is reviewing these proposed Orders in Council.

Lastly I would like to highlight that the committee members and staff are increasingly being made to work to their limits, under the current setup. Although the meetings are held once a week, if any greater work load is added there is a risk that the quality of will be reduced. Therefore if greater technical scrutiny is to be carried out, the number of staff or members, as it is appropriate, will need to be increased.




Bibliography

Ø R. Rawlings, Delineating Wales, university of Wales Press

Ø Devolution law making and the Constitution, R. Rawlings and Robert Hazell, Imprint Academic, 2005

Ø Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (The Richard Commission, 2004)

Ø K. Patchett, ‘Principle or Pragmatism? Legislating for Wales by Westminster and Whitehall’ in Hazell and Rawlings (2005 Imprint-Academic)

Ø Alan Trench, The Dynamics of Devolution, 2005 Imprint-Academic

Reports and Articles

Ø Legislative Committee, Second Assembly: Third Annual Report 2005-2006

Ø Legislative Committee, Second Assembly: Fourth Annual Report 2006-2007

Ø David Lambert, The Government of Wales Act- an Act for Laws to be Ministered in Wales in like for as it is in this Realm? 30 C. L. R. 60

Websites

Ø http://www.assemblywales.org/bus-home/bus-committees.htm

Ø http://www.bbc.co.uk/wales/history/sites/language/pages/devolution.shtml

Ø http://www.answers.com/topic/government-of-wales-act-1998

Ø http://new.wales.gov.uk/?lang=en

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[1] See M Laffin and A. Thomas, ‘Designing the National Assembly for Wales’ (2000) 53 Parliamentary Affairs 557
[2] See for example T. Jones and J. Williams, Wales as a Jurisdiction, [2004] Public Law 78
[3] R. Rawlings, Law making in a Victual Parliament: The Welsh Experience, Chapter 3 in, Devolution law making and the Constitution, Imprint Academic, 2005 page 72
[4] The National Assembly for Wales (Transfer of Functions) Order 1999 (S. I. 1999/672)
[5] Richard Report, Chapter 14, Para 7
[6] Ibid, Chapter 9
[7] See supra note 3
[8] Memorandum from the Leader of the House, 27th Report of the Joint Committee on Statutory Instruments, HC 33 of 1997-8, at xxvii
[9] GWA, section 59 (3)
[10] GWA 58(4) a
[11] GWA 58(4) b
[12] SO 11.7 (i)
[13] Ibid (ii)
[14] Ibid (iii)
[15] Ibid (vi)
[16] Legislative Committee, Second Assembly: Third Annual Report 2005-2006
[17] Ibid
[18] Legislative Committee, Second Assembly: Third Annual Report 2005-2006, page 8
[19] Though the work itself as, R. Rawlings said, is ‘exceptionally tedious’, standing for the grimmer realities of the life of the Assembly as a legislature!
[20] SO 11.6
[21] R. Rawlings, Law making in a Victual Parliament: The Welsh Experience, Chapter 3 in, Devolution law making and the Constitution, Imprint Academic, 2005 page 87
[22] Scope and remit of the legislative Committee post-2007. Although the complete text was not availably to this writing, the final recommendations were available in the annual report of the legislative committee2005-06.
[23] Ibid
[24] Ibid
[25] Proposed SO 15.3
[26] Ibid
[27] E.g. Committee for the Scrutiny of the First Minister.
[28] see proposed SO 15.6 (ii)

Appurtenant Rights

INTRODUCTION

The Law commission once described the law on appurtenant rights to land as “illogical, uncertain, incomplete and inflexible”[1], this is especially true the in areas such as covenants and easements. Our discussion starts from the foundation land law[2]. It is a feature of our law that people deal with are only estate or interests and not land itself. So stricto senso, land law is a collection of rights, i.e. rights of one individual against or in-relation to another. Among these rights there are some minor rights[3] and might be referred as appurtenant rights.

These rights can be divided into two distinct categories. First are incorporeal hereditament[4], which are well settled private rights on land, where the grantee does not occupation of the land[5], e.g. easements, profit[6] and rentcharges[7] The second category of rights, called covenants, or Intangible rights[8] are those rights that are created by agreements in the form of a contract (under seal)[9] and can be of many kinds. We will look at both of these categories individually.

INCORPOREAL HEREDITAMENT

As suggested earlier, these are specific rights whose, nature, creation and enforcements have been defined by judicial rulings[10] and statutes[11]. The most common kind of incorporeal hereditament are easements and profits. We will Look at there nature, rules of creation and enforcement separately and the reforms that need to be taken.

NATURE AND ENFORCEMENT

a) There Must Be Dominant And Servient Tenement and they must be different persons

The requirement that there needs to be dominant[12] and servient[13]tenement[14] is true for easements. This rule emanates from the general principle that one cannot have a claim against oneself[15]. The Courts have refused accept rights to lie in gross because, as it has been suggested, new and unusual rights might be created[16]. It is generally argued that the appropriate approach to such rights is contractual licenses.[17]

The strictness of the rule that the dominant and servient tenement must be different persons[18] has resulted in the concept of quasi-easements. The rule is relatively straight forward i.e. where easements would have existed but for the reason of single owner ship and subsequent conveyance results in two different owner easement come into existence by virtue of this quasi-easements. A typical scenario is where a land lord sells her land to the tenant.

b) The Right Must Accommodate the Dominant Tenement

The scope of this requirement has generally been difficult to define. The courts have used different criteria e.g. proximity[19] to define the scope of the rule. Generally these rights are created between neighbors[20] but this is not necessary. Often cited example is Pugh vs. Savage[21] however an older authority is the case of Re Ellenborough Park.[22]

The courts also refer to the nature of the right claim. This is not as straightforward. Often cited conflicting cases on the issue are Moody vs. Steggles (1879)[23] Hill vs. Tupper (1863).[24] In the former the courts recognized the existence of an easement and not in the latter.[25] Plainly, the question is whether easements should be recognized or not.

It is submitted that easements in gross should be recognized by statute.[26] Support can drawn from U.S. law where it has been held that easements can lie in gross[27]. In some states different phraseology is used; equitable servitude[28]. It may also be argued that in U.K. land law some easements in gross are recognized but they aren’t termed as easements. See for example the right to maintain pipelines, sewers, to occupy pews in churches, franchises and manors etc[29]. The Courts have merely called them “rights in gross analogous to easements.”[30]

The Courts have generally refused to accept this right on three grounds, one, recognition of the right would result in unusual right being created[31]. It is submitted that this in it self is not a sufficient reason to deny a party to deal with appurtenant rights. Second, and a more plausible argument is that, allowing such rights would result in unnecessary burden being placed on the servient tenements. It is submitted that there is no statistical evidence to suggest that such will be the case. Even if we accept this argument there are two strong counter arguments. In the modern land law where all the rights and burdens on land can easily be discovered from registers and more recently the introduction of Home Information Pack (HIP)[32]. So the current situation is considerably different from what it used to be hundred and fifty years ago. The second way is making a fast scheme under which these appurtenant rights that become redundant or out of use, to be removed, e.g. by way of a court order. This method can be based on the scheme similar to that provided by section 84 of Law of Property Act 1925 for restrictive covenants. Thirdly, it has been argued that, judicial recognition of such rights will create more confusion and problems than solutions. The courts’ reluctance in this area of law is understandable because this is such a complex area of law but this creates a compelling case for parliament’s intervention after a careful study by the law commission.

c) The right must lie in grant and nature mustn’t substantially change

The essence of this rule is that the right claim must be clear and precise. Claim for the use of land for general recreation is too vague[33] or if the land affected (servient tenement) is not specified by the deed.[34]

Second part requires that nature of the claim should not change over time. So if there is a substantial change over time the right might not remain enforceable. Mackenzie and Phillips identify two types of cases that can arise, if the land changes character, or the owner of dominant tenement uses the easement for the benefit of the land not specified by the deed. The area is sufficiently clear after the recent cases of Atwood vs. Bovis Homes Ltd[35] and Peacock v Custins[36]. [37]

d) Recognition of new easements and negative rights

Generally the courts have said that the law should be prepared to accept changing social circumstances and hence the creation/ judicial acceptance[38] of these new rights are not closed.[39] Having said that, the Courts have generally been reluctant to recognize negative rights,[40] indeed it has been argued that court will not recognize any new one except the ones that already exist.[41] The two rights that do exist are right to light, recognized by section 3 of the Prescription Act 1832, and right to support from the case Darley Main Colliery vs. Mitchell (1886).[42]

CREATION

This is arguably one of the most complicated areas in the law of appurtenant rights. But before we go on to the detail, I must mention a few words on the procedure requirement of deed. We know that under Law of Property Act 1925 easements,[43] rentcharges[44] can only be legal if they fee simple or for a term of years absolute. We also know that Section 52(1) required that for an easement to be legal it needs to be created by deed.[45]

It is submitted that the requirements of deed under Section 52 (1) be abolished. The requirement that for a transfer of legal interest a deed needs to be sealed is old and out dated. There has been a legislative trend away from the requirement[46] as well. The Explanatory Memorandumof Land Registration Act, 2002, on e-conveyancing, says[47] that "the section does not disapply the formal statutory or common law requirements relating to deeds and documents but deems compliance with them. When the section applies, the electronic document is therefore to be treated as being in writing, having been executed by each individual or corporation who has attached an electronic signature to it, and, where appropriate, as a deed."[48]

Moving now to the modes by which these rights are created. In general there are three ways[49]. These are, a) expressly created reservations and grants, b) implied reservations and c) presumed grant or prescription/ long use. A person can claim a right by virtue of prescription either under the common law, the doctrine of lost modern grant or under the Prescription Act 1832.

EXPRESS RESERVATION / GRANT

The concept of express reservation is relatively straight forward and it need not be repeated here. However the rules on express grant are more complicated. It is worth remembering that Section 62 of the Law of Property Act 1925 operates to import words in a transfer making all easements run with the land that were enjoyed in the past. The Courts, on the other hand, following the case of International Tea Stores Co. Ltd vs. Hobbs[50] have found a peculiar interpretation so that the section changes ordinary licenses to full easements upon conveyance. It is submitted that this approach needs to be examined. It is difficult to understand how a personal arrangement can change to appurtenant right. Historically, Section 6 of the Convayencing Act 1881 (predecessor to the Section 62) was enacted to simplify and shorten the rights that already existed[51]. See Also the reservation expressed by fox L.J. in Dewsbury vs. Davies when he said “it seems rather and odd result that a section whose purpose was to shorten conveyances should have the effect that, turning what was, as here, a permissive and precarious right into a irrevocable easement[52].” The Law Commission[53] has suggested an amendment to section 62. Upon division of land, the purchaser would have

(a) any facilities which were previously available to the occupier of that part of the land and which in all the circumstances it is reasonable to contemplate as continuing; and
(b) any new facilities which are either necessary to the proper enjoyment of that part at the time of the transaction or which in all the circumstances it is reasonable to contemplate as having been intended by the parties to be imposed upon completion of the transaction.

(Note: That the rule of contrary intention under Section 62 should continue to apply.)

IMPLIED RESERVATION OR GRANT

The courts are generally reluctant to imply reservations but there are certain situations where this might be possible. A likely scenario is where the estate is land locked[54] or in the situation where it could be inferred that parties did intend to create a reservation[55]. A grant can also be implied by te rules of Wheeldon vs. Burrows[56]Thesiger L.J. said

“ … on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, … all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners …”[57]

Note that this rule is similar to Section 62 (especially after the Law Commission suggested reform to it.) It has been proposed in the Land and Conveyancing Law Reform Bill 2006 (Irish Parliament) Section 38 that the rule be abolished. The provision replacing the rule is provided by section 38 (2) is similar to that provided by the Law Commission in its 1971 report as discussed above.

PRESCRIPTION

Third and final way by which easement can be created are by prescription i.e. long use. The rules under common law, the fictitious doctrine of lost modern grant and persecution Act 1832 are out dated and complex. It has been suggested[58] that the doctrines of lost modern grant (which has long been discredited for been to archaic) and prescription at common law be abolished. It has been suggested that a single period for of twelve years[59] for all easements and profits be created. The legal right might only be obtained by virtue of a court order and than registration of the order in the appropriate register[60]. A commendable discovery in the Land and Conveyancing Law Reform Bill 2006 (Irish Parliament) is rule under Section 37. The section introduces the extinguishment period. i.e. the right once the there has been no use for over 12 years is extinguished. This is undoubtedly an impressive innovation[61].

It is submitted that if the suggested reforms are adopted into the law relating to easements will be greatly improved. However some caution need to be taken in certain areas, for example the discretion of the court to give orders needs to be clearly defied etc

INTANGIBLE RIGHTS OR COVENANTS

NATURE

These are the second type of appurtenant rights. As freehold owners, people generally have the freedom to use their estate in which ever way they want. They may sell some rights or create specific. In the current state of the law some these rights are recognized as appurtenant e.g. some restrictive covenants but not others e.g. positive covenants.[62] In general, it has been argued in the past that covenants are contracts and by virtue of their nature and the doctrine of privity[63] a third party, e.g. a subsequent buyer, cannot be held burdened/benefited by it. This rule had been criticized by a number of authors[64] and members of the judiciary[65] until The Contracts (Rights of Third Parties) Act 1998 came into force.[66] Coming back to covenants, they generally take the form of land restriction/ obligations. These covenants are widely used especially in areas such as flats where the individual flat are separately sold. Property developers have used various ways[67] to come around these rules of covenants. These back door channels and the rigid rules of covenants warrant a general simplification of the law.

CREATION & ENFORCEMENT

Covenants take the form of contractual arrangement and thus can be of any kind. All the rules of contract law apply. The question we are mostly concerned here is whether benefit/ burdens runs with the land after conveyance. Again the rules are complex and need of reform, for example the courts treat statutory legal and equitable easements considerably differently[68] and the contrasting approach taken by the courts to restrictive and positive covenants at times difficult to fathom.

STATUTE

By virtue of Section 56 of the Law of Property Act 1925 a person may take benefit of a covenants relating to the land after the purchase[69]. Further Section 78 has the effect that burdens are deemed to intend to pass. Under Section 136 of the Law of Property Act 1925 an easement can be assigned to any third party[70].

COMMON LAW

At Common law the approach taken by the courts differ in relation to positive and restrictive covenants. With regard burden, after the case of Austerberry vs. corporation of Oldham[71] it has been a general rule that burden does not run in law; i.e. after conveyance the burden shall not run with the land.[72] This is not the case with benefits as they can run in law after conveyance, under Smith & Snipes Hall Farm Ltd vs. River Douglas Catchment Board[73].

EQUITY

Under the equitable rule of Tulk vs Moxhay (1843) 2 Ph. 773 the Courts of equity took a different approach to that of the common law. Lord Cottenham said that if equity is attached to property by the owner, no one purchasing with notice of that equity can stand in a different situation from that of the party from whom he purchased. The judgment did not restrict the application of the rule restrictive covenants but has been construed as such[74]. This interpretation was challenged[75] in Rhone vs. Stephens [1994] 2 A.C 310 however the House of Lords refused[76] and confirmed the rule in Haywood.

The Courts take different approach to rights claimed on registered land and unregistered land. In unregistered land, if the covenant is registered[77] by virtue of the Section 198 of the LPA 1925 it will constitute actual notice and will bind any purchaser for money or money’s worth. If it is an unregistered right, the Section 4(6) of Land Charges Act 1972 will render it void and thus unenforceable. In registered land a covenant must be entered into as a notice to bind a purchaser.
For a benefit to run in equity there are the complex rules of Renals vs. Cowlishaw[78] i.e. by annexation, assignment; and Scheme of development.

As a general rule currently positive covenants do not run at common law or equity (subject to the exception of rule in Halsall vs. Brizell[79] and the rules in the Common Hold and Leashold Reform Act 2002). As we have seen the different treatment of covenants under statue, common law and equity have rendered the law too obscure.

In pursuing possible reforms, again, useful guidance may be taken from the Land Law and Conveyancing Law reform Bill 2006. For simplification purposes the Bill abolishes all the rules under common law and equity[80]. The Bill purports to run all the benefits and burdens in law thereby completely deviating from the old principle in Tulk and Austerberry. It should be noted that when such an expansive extension to the law is created the ways by which these covenants can come to an end need to be wider than the mechanism provided by Section 84 of Law of Property Act 1925. The Courts should be able to remove a covenant a) is interfering with the reasonable enjoyment of the property; or b) has become absolute and the grantee is refusing to negotiate a demise. In such a case a Court should be in a position to end the covenant and award any compensation to the grantee or as appropriate.

It can been seen now from the above discussion that the law relating to appurtenant rights is need of reform and a number of reforms have been suggested the Law Commission is currently working on deferent types of appurtenant. An interesting observation is that it seems after any of the suggested reforms coming into force, the rules of corporeal hereditament and covenants are converging. In fact the Law commission did try to bring them together[81] but in retrospect they might be seen as too ambitious. However it is submitted that there nature is quite distinct and they both serve separate purpose for now and need to be treated as such. The reason why those reforms have not resulted into legislation is debatable. Is it political? Maybe Conveyaning Law is not on the priority list of Government legislations. If that is the case it certainly does not reflect the need of reform in this area of law.

Bibliography

Books

Ø Text book on Land Law, Judith-Anne Mackenzie & Mary Phillips, 10th & 11th Ed, OUP

Ø Modern Land Law, Mark P. Thompson, 3rd Ed. OUP

Ø Neighbours and the Law, John Pugh-Smith, 2nd ed., Sweet & Maxwell

Journal Articles

Ø Law Commission: Transfer of Land. The Law of Positive and Restrictive Covenants, P. Polden The Modern Law Review, Vol. 47, No. 5. (Sep., 1984), pp. 566-576.

Ø Enforcement of Positive Covenants Affecting Freehold Land Nigel P. Gravells L.Q.R. 1994, 110(JUL), 346-350

Ø Judicial Supervision of Servitudes by Uriel Reichman, The Journal of Legal Studies Vol. 7, No. 1. (Jan., 1978)

Ø Commonhold: A Prospect of Promise D. N. Clarke The Modern Law Review, Vol. 58, No. 4. (Jul., 1995), pp. 486-504.

Ø Subdivided Buildings: Developments in Australia, Singapore and England, Alice Christudason The International and Comparative Law Quarterly, Vol. 45, No. 2. (Apr., 1996), pp. 343-364

Ø A Birthday Present for Lord Denning: The Contracts (Rights of Third Parties) Act 1999, Catharine MacMillan, The Modern Law Review, Vol. 63, No. 5. (Sep., 2000), pp. 721-738.

Ø Assignability of "Easements in Gross" Columbia Law Review, Vol. 7, No. 7. (Nov., 1907), pp. 536-538.

Ø Easements of Light and Air over Streets, Harvard Law Review, Vol. 15, No. 4 (Dec., 1901), pp. 305-306.

Ø The Assignability of Easements in Gross in American Law, Lewis Mallalieu Simes, Yale Law Journal, 32 Yale L.J. (1922-1923) page 814- 815

Ø Easement Draftsmanship and Conveyancing, Robert Kratovil, California Law Review, Vol. 38, No. 3. (Aug., 1950), pp. 426-451.

Ø Michigan Law Review, Vol. 22, No. 6. (Apr., 1924), pp. 521-540.

Ø On Duties to Oneself, Marcus G. Singer, Ethics, Vol. 69, No. 3. (Apr., 1959), pp. 202-205.

Ø Lawyers and Land Law Revisited, Avner Offer, Oxford Journal of Legal Studies, Vol. 14 Page 269- 278

Ø A Study of Rights Incident to Realty. I. Real Property Rights Reclassified Henry Upson Sims

Ø Virginia Law Review, Vol. 7, No. 5. (Feb., 1921), pp. 327-342.

Ø The Assignability of Easements, Profits and Equitable Restrictions Charles E. Clark The Yale Law Journal, Vol. 38, No. 2. (Dec., 1928), pp. 139-164.

Ø Exception and Reservation of Easements Harry A. Bigelow; J. W. Madden Harvard Law Review, Vol. 38, No. 2. (Dec., 1924), pp. 180-201.

Ø Theories of Property and Economic Development Joshua Getzler Journal of Interdisciplinary History, Vol. 26, No. 4. (Spring, 1996), pp. 639-669.

Ø The Content of Covenants in Leases Harry A. Bigelow Michigan Law Review, Vol. 12, No. 8. (Jun., 1914), pp. 639-659

Ø Contracts. Contracts for Benefit of Third Party. Right to Sue, Virginia Law Review, Vol. 3, No. 6. (Mar., 1916), pp. 464-466

Ø Some Fundamental Legal Conceptions as Applied in Judicial Reasoning Wesley Newcomb Hohfeld

Ø The Yale Law Journal, Vol. 23, No. 1. (Nov., 1913), pp. 16-59

Ø Metamorphoses and Section 62 Of the law of Property Act 1925, Louise Tee, Conveyancer and Property Lawyer, Conv. 1998, Mar/Apr, 115-124

Ø “Lateral Support of Buildings from Adjoining Land?” Tang Hang Wu, [2002] 66 Conv 237.

LAW COMMISSION REPORTS

Ø Law Commission Transfer of Land: Appurtenant Rights(1971) Paper 36

Ø Transfer of Land: The Law of Positive and Restrictive Covenants (HC201)

Ø Transfer of Land: Implied Covenants for Title (HC437)

Ø Law Reform Commission (Ireland), Report On the acquisition of easements and Profit a prendre by Prescription (LRC 66 - 2002)

Ø The Law reform Commission (Ireland), Report on Land Law and Conveyacing Law: Positive Covenants over freehold land and other proposals (LRC 70 - 2003)

Ø Law Reform Commission (Ireland), Consultation paper on reform and modernisation of land law and conveyancing law (LRC CP 34 – 2004)

Ø Law Reform Commission (Ireland), Report on reform and modernisation of land law and conveyancing law (LRC 74 - 2005)

E-Journal

Ø The Requirements of Writing for Electronic Land Contracts – The Queensland experience compared with other jurisdiction, E LAW Murdoch University Electronic Journal of Law by S. Christenser, W. Duncan and R. Low. http://www.murdoch.edu.au/elaw/issues/v10n3/christensen103.html
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[1] Law Com. W.P. No. 36 Appurtenant Rights (1971) see Para 31
[2] See for general debate S.F.C Milsom The Legal Framework of English Feudalism (Cambridge University Press 1976)
[3] Consultation paper on Reform And Modernisation Of Land Law And Conveyancing Law (LRC CP 34 – 2004) see page 91
[4] Neighbours and the Law, John Pugh-Smith, 2nd edition, Sweet and Maxwell see page 33
[5] See further below on page 2
[6] They are also referred as profit-à-prendre meaning "right of taking"
[7] The creation of all new rentcharges has been prohibited by the Rentcharges Act 1977 ( subject to certain exception, see Land Registry Practice Guide 41 Oct 2005
[8] See Page 19 Mark P. Thompson 3rd edition, Oxford Press. See also Page 69.
[9] Section 52 of the Law of Property Act 1925 requires that all convayecing of legal interest needs to be done by way of a deed
[10] An ideal example of a new right (check which right it was) being recognized in Re Ellenborough Park [1956] Ch 131 or [1955] 3 ALL ER 667
[11] See Prescription Act 1832 section 3. Also building developers can create statutory easements for the provision of essential services under section 88B Conveyancing Act 1919, see also Section 68 of the Countryside and Rights of Way Act 2000 under which a grantor can grant statutory right of way for the access of vehicle.
[12] Land on which the easement is to be enjoyed
[13] Land which is burdened with an easement
[14] Rule in Re Ellenborough Park [1955] 3 ALL ER 667
[15] For a discussion on the issue see Discussion On Duties to Oneself Marcus G. Singer Ethics, Vol. 69, No. 3. (Apr., 1959), pp. 202-205
[16] Mark P. Thompson 3rd edition, Oxford Press Page 474
[17] See below
[18] See Re Ellenborough Park infra note 22 page 680
[19] See Bailey vs. Stephens (1862) 12 C.B (N.S.) 91
[20] See Part 7 of explanatory Notes to the Land Law Reform bill 2006 of the Irish Parliament.
[21] [1970] 2 QB 373
[22] [1955] 3 ALL ER 667 see page 669
[23] 12 Ch. D. 261
[24] EWHC Exch J26
[25] On a glance both of the rights claimed seem to facilitate the business. The reasons for the conflict are also disputed. M. P. Thompson argues that in the former the right claimed supported the business whilst in the later the claim was the business itself. Mackenzie and Phillips argue that in former the business had been there for a very long time and had become intrinsic part of the land where as in the later the claimed right supported the business i.e. it was plainly an ‘easement in gross’ which the court refused to accept.
[26] see for example M F. Sturley ‘Easements in gross’(1980).
[27]
[28] Judicial Supervision of Servitudes by Uriel Reichman, The Journal of Legal Studies Vol. 7, No. 1. (Jan., 1978), pp. 139-164
[29] For further discussion see Yale Law Journal Issue 32 page 815 and for U.S. approach to easements “The Assignability of Easements in Gross in American Law” by Lewis Mallalieu Simes, Michigan Law Review, Vol. 22, No. 6. (Apr., 1924), pp. 521-540.
[30] See Vestry of St. Mary vs. Jacobs (1871) L. R. 7 Q. B. 47
[31] Mark P. Thompson 3rd edition, Oxford Press Page 474
[32] under the Housing Act 2004
[33] Mousney vs. Ismay (1865) 3 Hurl. & C. 486 However see Re Ellenborough Park where the right claimed was general recreation.
[34] Chaffee vs. Kingsley [2000] 79 P & CR 404
[35] 1 WLR 1815 Ch 371. Here the land changed character (agriculture to business) the easement continued because there was not a substantial increase, had that been the case the court would have been reluctant to accept the easement
[36] [2002] Here the court held that the right could not be used for the benefit of an adjacent property to the dominant tenement that the owner of dominant tenement later bought as that property was not mentioned in the deed creatig the easement.
[37] Note that space does not permit any further discussion where as there is certainly some anomalies in the rule the require addressing.
[38] London and Blenhein Estates Ltd vs. Ladbroke Retail Parks Ltd [1992] 1 W. L. R. 1278 at 1287 per Judge Baker Q.C and see also Horton vs. Tidd (1965) 196 E. G. 697
[39] Despite this many new rights have been refused in the recent past, these include right to privacy (In Browwne vs. Flower [1911] 1 Ch. 219), right to uninterrupted flow of air (In Bryant vs. Lefever (1879 4 C.P.D 172) and right to uninterrupted flow of television signals (In Hunter vs. Canary Wharf Ltd [1997] A.C. 655) have all been held not to be easements.
[40] Subject to two exceptions, which are Right to Uninterrupted light (section 3 of the Prescription Act 1832) and Right to support (Darley Main Colliery vs. Michell (1886) 11 App. Cas. 127. For a discussion on the issue see Tang Hang Wu “Lateral Support of Buildings from Adjoining Land?” [2002] 66 Conv. 237
[41] See Page 477 Mark P. Thompson 3rd edition, Oxford Press. However MacKenzie and Phillips 10th Edition (at page 501 suggest that any new easement might be recognized provide that it satisfies the Re Ellenborough test and it, doesn’t exclude the servient owner, is in-fact a right and does not involve expenditure.
[42] 11 App. Cas. 127
[43] Section 1(2) (a) see also the effect of Section 187 of the Law of Property Act 1925
[44] Section 1(2) (b) as amended by the Rent Charges Act 1977
[45] Exception is by prescription and the easements created under the Section 31(7) of the Common Hold and Leasehold Reform Act 2002. See below for details on prescription.
[46] See the application of Section 31(7) of the Common Hold and Leasehold Reform Act 2002 and Section 98
[47] Para 148
[48] See for further discussion The Requirements of Writing for Electronic Land Contracts – The Queensland experience compared with other jurisdiction, E LAW Murdoch University Electronic Journal of Law by S. Christenser, W. Duncan and R. Low.
[49] Note also that the rules on grants and reservations are different
[50] [1903] 1 Ch. 165
[51] Conv. 1998, Mar/Apr, 115-124 Conveyancer and Property Lawyer, Metamorphoses and Section 62 Of the law of Property Act 1925
[52] Ibid
[53] Law Com. W.P. No. 36 Appurtenant Rights (1971)
[54] Pinnington vs. Galland (1853) 9 Exch. 1
[55] Peckham vs. Ellison [1998] 31 H.L.R. 1031
[56] (1878) 12 Ch. D. 31
[57] (1878) 12 Ch.D. 31 Page 50.
[58] See Law reform Committee (14th Report, Cmnd 3100 ); See also Land and Conveyancing Law Reform Bill 2006 (Irish Parliament) Section 31-48
[59] Ibid also see section 31 of the Bill
[60] Ibid section 32-33
[61] It should be noted that the scope of the rule is very restrictive and it only applicable to acquisitions of easements by implications. The rule can be expanded to expressly created and registered easements since twelve years is a reasonably long period of inactivity and it is highly unlikely that once a right has not been used for over 12 years would suddenly come back into use.
[62] Subject to one exception of fencing
[63] The authority for the rule are the cases of Price vs. Easton 4 B. & Ad. 433, the more famous is Tweddle v. Atkinson (1861) 1 B&S 393.For a brief discussion on the issue see Contracts for Benefit of Third Party. Right to Sue Virginia Law Review, Vol. 3, No. 6. (Mar., 1916), pp. 464-466 and http: //en. wikipedia.org / wiki/ Privity_of_contract
[64] See for example Removing a Blot on the Landscape: The Reform of the Doctrine of Privity. Journal of Business Law, Meryll Dean [2000] JBL 143.
[65] Para 2.64-2.69 of the Report by the Law Commission Privity of Contract: Contracts for the Benefit of Third Parties (Law Com No 242 Cm 3329 July 1996)
[66] This legislation does relax the doctrine of privity and under section (1) rights and benefit directly conferred by the contracting parties can be enforced by the benefited party against either of the contracting parties.
[67] E.g. very long leases, see further below
[68] Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403, 46 JP 356
[69] At first it was used to stop the application of Doctrine of Privity of Contract by Lord Denning in Drive Yourself Hire Co (London) Ltd -v- Strutt [1954] 1 QB 250 in which he said “It is often said to be a fundamental principle of our law that only a person who is a party to a contract can sue on it. I wish to assert, as distinctly as I can, that the common law in its original setting knew no such principle. Indeed, it said quite the contrary. For the 200 years before 1861 it was settled law that, if a promise in a simple contract was made expressly for the benefit of a third person in such circumstances that it was intended to be enforceable by him, then the common law would enforce the promise at his instance, although he was not a party to the contract.” . This expansive application of the section was later curtailed by the House of Lords in Beswick vs. Beswick (1966) Ch. 538, [1968] AC 58. However as discussed this position has changed for covenants entered into after 2000 in which case The Cotracts (Rights of Third Party) Act 1998 came into force see section 1 (3) and 10 (2) .
[70] Page 539 MacKenzie and Phillips, 10th Edition, Oxford University Press.
[71] (1885) 29 Ch.D 750
[72] See also Rhone vs. Stephens [1994] 2 A.C 310
[73] [1947] 2 K.B. 500. There are certain requirements that need to be satisfied and the most important of whom is that the covenant must touch and concern the land, successor in title must have legal estate, the benefited land be easily identifiable from the deed and the parties must intend for the benefit to run (This last conditions is automatically satisfied by section 78 of the Law of Property Act 1925). See Page 502 - 505of Mark P. Thompson 3rd edition, Oxford Press
[74] Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403
[75] Even Nourse L.J. at the Court of appeal expressed his view that the Rule in Tulk vs. Moxhay (1848) 2 Ph. 774 should extend to positive covenants
[76] It is interesting to note the grounds on which the court based it’s decision. Lord Templeman said that “… your Lordships were invited to overrule the decision of the Court of Appeal in the Austerberry case. To do so would destroy the distinction between law and equity and to convert the rule of equity into a rule of notice. It is plain … that judicial legislation to overrule the Austerberry case would create a number of difficulties, anomalies and uncertainties and affect the rights and liabilities of people who have for over 100 years bought and sold land in the knowledge… that positive covenants affecting freehold land are not directly enforceable except against the original covenantor. Parliamentary legislation to deal with the decision in the Austerberry case would require careful consideration of the consequences …” (emphasis added).
[77] It needs to be registered as a Class D (ii) under Section 2 of the Land Charges Act 1972
[78] (1878) 9 Ch.D. 125 at 129
[79] [1974] Ch. 169. The rule suggests that you cannot enjoy rights without accepting the correlative burden
[80] Section 37 of Land Law and Conveyancing Law reform Bill 2006
[81] The commission proffered the comprehensive code of “Land Obligations”