It no longer comes as a surprise to read of a human rights issue being raised in a property law dispute. This round up is limited to major HR challenges, namely those that, if successful, would effectively rewrite the rule in question: see the distinction drawn by Martin Edwards and John Martin in
The scoreboard to date indicates that this is not a task to be taken on lightly. At least nine major attacks have so far been repelled:
* a waste-regulation authority’s power to demand information from certain persons: see R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd [2000] 1 PLR 108;
* the law of adverse possession: see JA Pye (Oxford) Ltd v Graham (
* the virtually unconditional right of a landlord to recover possession of a dwelling-house on the termination of an assured shorthold tenancy: see Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] 19 EG 141 (CS);
* the SSETR’s power to call in planning applications and to recover planning appeals: see Alconbury [2001] 20 EG 228 (CS);
* the adjudication, under the Housing Grants, Construction and Regeneration Act 1996, of disputes arising out of construction contracts: see Austin Hall Building Ltd v Buckland Securities Ltd [2001] 25 EG 155 (CS);
* a planning authority’s right, under regulation 3 of the Town and Country Planning General Regulations 1992, to determine a planning application relating to land belonging to themselves (unless the application is called in): see R (on the application of Kathro) v Rhondda Cynon Taff County Borough Council [2001] 29 EG 120 (CS), holding that the reasoning in Alconbury applied;
* local authorities’s power, acting under section 124 of the Housing Act 1996, to grant (residential) introductory tenancies, thus enabling the authority to wait and see before conferring the benefits of a secure tenancy: see Merton London Borough Council v Williams [2002] 30 EG 133 (CS); and
* the power of planning authorities and the Secretary of State (in exercise of his call-in powers) to decide whether a planning application should go to an oral hearing: see
* certain exemptions in favour of local authorities from the provisions of the Caravan Sites Act 1968 and the Mobile Homes Act 1983: see
* The power of a drainage authority, under section 64 of the Land Drainage Act 1991, to enter land in order to carry out certain works: see R (on the application of MWH&H Ward Estates Ltd) v Monmouthshire County Council [2002] 45 EG 154 (CS).
Time now to file an important caveat. It is far from certain that the European Court will show the same satisfaction with the safeguards provided by our judicial review system as was shown in Alconbury: see
Turning to the other side of the scoreboard, two major successes for the HR brigade came in:
* Marcic v Thames Water Utilities Ltd [2002] 07 EG 122 (CS), where an action in nuisance for flooding was supplemented by a successful claim for violation of the claimant’s Convention right to respect for his home: see
* Godin-Mendoza v Ghaidan [2002] 46 EG 197 (CS), equating a stable homosexual relationship with that of the hetero variety for the purpose of the succession provisions of the Rent Act 1977: see
It no longer comes as a surprise to read of a human rights issue being raised in a property law dispute. This round up is limited to major HR challenges, namely those that, if successful, would effectively rewrite the rule in question: see the distinction drawn by Martin Edwards and John Martin in The rights side of planning Estates Gazette 15 December 2001.
The scoreboard to date indicates that this is not a task to be taken on lightly. At least nine major attacks have so far been repelled:
* a waste-regulation authority’s power to demand information from certain persons: see R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd [2000] 1 PLR 108;
* the law of adverse possession: see JA Pye (Oxford) Ltd v Graham (PP 2002/45), as subsequently applied by Park J in Family Housing Asssociation v Donnellan [2001] 30 EG 114 (CS);
* the virtually unconditional right of a landlord to recover possession of a dwelling-house on the termination of an assured shorthold tenancy: see Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] 19 EG 141 (CS);
* the SSETR’s power to call in planning applications and to recover planning appeals: see Alconbury [2001] 20 EG 228 (CS);
* the adjudication, under the Housing Grants, Construction and Regeneration Act 1996, of disputes arising out of construction contracts: see Austin Hall Building Ltd v Buckland Securities Ltd [2001] 25 EG 155 (CS);
* a planning authority’s right, under regulation 3 of the Town and Country Planning General Regulations 1992, to determine a planning application relating to land belonging to themselves (unless the application is called in): see R (on the application of Kathro) v Rhondda Cynon Taff County Borough Council [2001] 29 EG 120 (CS), holding that the reasoning in Alconbury applied;
* local authorities’s power, acting under section 124 of the Housing Act 1996, to grant (residential) introductory tenancies, thus enabling the authority to wait and see before conferring the benefits of a secure tenancy: see Merton London Borough Council v Williams [2002] 30 EG 133 (CS); and
* the power of planning authorities and the Secretary of State (in exercise of his call-in powers) to decide whether a planning application should go to an oral hearing: see PP 2002/132.
* certain exemptions in favour of local authorities from the provisions of the Caravan Sites Act 1968 and the Mobile Homes Act 1983: see PP 2002/145.
* The power of a drainage authority, under section 64 of the Land Drainage Act 1991, to enter land in order to carry out certain works: see R (on the application of MWH&H Ward Estates Ltd) v Monmouthshire County Council [2002] 45 EG 154 (CS).
Time now to file an important caveat. It is far from certain that the European Court will show the same satisfaction with the safeguards provided by our judicial review system as was shown in Alconbury: see Hang in the balance Estates Gazette 19 January 2002, p122, where property litigator Christopher Hancock considers the implications of the EHCR judgment in Hatton v United Kingdom (36022/97) (2001) 34 EHRR 1.
Turning to the other side of the scoreboard, two major successes for the HR brigade came in:
* Marcic v Thames Water Utilities Ltd [2002] 07 EG 122 (CS), where an action in nuisance for flooding was supplemented by a successful claim for violation of the claimant’s Convention right to respect for his home: see PP 2002/124.
* Godin-Mendoza v Ghaidan [2002] 46 EG 197 (CS), equating a stable homosexual relationship with that of the hetero variety for the purpose of the succession provisions of the Rent Act 1977: see PP 2002/220
