Land Use Regulation by the State for the Benefit of All Citizens

Land Use Regulation by the State for the Benefit of All Citizens Presented by: Mrs. Layard Date: 10 October 2024, 1:00 pm–2:00 pm Public Property? - Public authority land law - Public Rights Public authority land law: Whitstable Society v Canterbury City Council [2017] EWHC 254 - Dove J cited Hobhouse LJ in Credit Suisse v Allerdale Borough Council [1997] QB 306: 'Where private law rights are concerned... Private law issues must be decided in accordance with the rules of private law. The broader and less rigorous rules of administrative law should not without adjustment be applied to the resolution of private law disputes in civil proceedings... after taking into account the applicable public law, the civil proceedings have to be decided as a matter of private law'. Public rights - Footpaths - Town and Village Greens - Commons - Open Space “Authorized Property” - Town and Country Planning Act 1947 - Leasehold Enfranchisement Act 1967 - Countryside and Rights of Way Act 2000 - Ownership and use are permitted only 'as authorized'. - Parliament authorizes legislative interventions, limiting property rights, both with and without compensation. Administrative decisions and private law also 'authorize' property. Town and Country Planning Act 1947 - Requirement for planning permission (& 'betterment levy') - No compensation - Local planning authorities and plans - Desmond Heap, 1987 • After 1947, 'if planning permission were refused no compensation was payable because no loss could be said to have been sustained by the landowner who no longer had vested in him the development rights in his land.' Leasehold Enfranchisement Act 1967 - James v United Kingdom 8 E.H.R.R. 123 (1986) - A1P1: Protocol 1, Article 1: Protection of property • Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. • The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure payment of taxes or other contributions or penalties 'leasehold tenure: - is a fundamentally unfair system and a fundamentally inequitable tenure, because those who buy flats and-increasingly, in recent years-houses, in good faith, paying market rates, assuming and hoping that they would be homeowners in the fullest sense of the word, have found that, rather than being homeowners, they are at the whim of the ultimate owner of the freehold, who is in effect their landlord Countryside and Rights of Way Act 2000 - 'Right to Roam' - Limited by Schedule 2 - -Occupier's liability “Authorized Property” - Lord Burrows, Hamlyn Lectures, 2018 • 'the study of statutes as a coherent whole is sadly neglected' Authorized property: Statutory Interpretation - Millet LJ on the Leasehold, Housing and Urban Development Act 1993 Act, Cadogan v McGirk [1996] 4 All ER 643, 648 • 'It would, in my opinion, be wrong to disregard the fact that, while the Act may to some extent be regarded as expropriatory of the landlord's interest nevertheless it was passed for the benefit of tenants. It is the duty of the Court to construe the Act fairly and with a view, if possible, to making it effective to confer on tenants those advantages which Parliament must have intended them to enjoy.' Authorized property: Property Models - N.B. why property and how property • Progressive property (Alexander, Peñalver & Underkuffler, Walsh) • 'Agenda-setting' (Katz) • 'Ownership spectrum' (Harris) • Bundle of sticks (Baron, Hohfeld, Honoré) • Constitutive (Scotford and Walsh, Rodgers) • Castle model (et domus sua cuique tutissimum refugium', often translated as 'his home his safest refuge') • Investment model (Singer) • Exclusion (Smith, Merrill, Penner, McFarlane & Douglas) Property Rights And A 'Right Of Property' Lord Reed and Lord Hodge • '... an individual's right to the peaceful enjoyment of his or her property is a fundamental right, long recognized by the common law and now also protected by the Human Rights Act 1998... the process of interpreting a statute which is said to authorize what would otherwise be an unlawful interference with rights of property, or to deprive individuals of rights of action which would otherwise be available to them to protect their property against such interference, brings into play the principle of legality.' - Lord Hoffmann in R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33 • Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. - Lord Hodge, 'The scope of judicial law-making in constitutional law and public law' (2021) • 'the twin pillars of our constitution ... the sovereignty of the UK Parliament and the rule of law, and the principle of the separation of powers which supports those pillars'. - Private law's 'emergency parachute' (David Howarth, 2020) - Section 10(1) Dartmoor Commons Act 1985 • 'a right of access to the commons on foot and on horseback for the purpose of open-air recreation' - Maria Lee, 2015 • 'Where we stand on this will depend in part on ideology, as well as on the ideologies that we perceive to dominate administrative and judicial decisionmaking... Some ambivalence about whether the individual should be protected from the collective, or vice versa, is inevitable.'