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The foundations of Elitestone

Published online by Cambridge University Press:  02 January 2018

Peter Luther
Peter Luther*
Affiliation:
School of Law, University of Essex
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Abstract

The decision of the House of Lords in Elitestone v Morris [1997] 2 All ER 513 added an extra element to the traditional classification of objects brought onto land. The traditional classification divides such objects into chattels and fixtures. In Elitestone, Lord Lloyd of Berwick suggested, borrowing words from Woodfall on Landlord and Tenant, that it might be better to apply a threefold classification: chattels, fixtures and items which are ‘part and parcel of the land itself’. This paper explores the origins of this threefold classification, and suggests that there may be little, if any, historical basis for the new third category; it may owe its origins to the confusion which has surrounded the various meanings of the word ‘fixture’. The paper also investigates how the decision in Elitestone has been applied by later courts, and suggests that it is unlikely that it has made the judges' task any easier.

Type
Research Article
Information
Legal Studies , Volume 28 , Issue 4 , December 2008 , pp. 574 - 590
Copyright
Copyright © Society of Legal Scholars 2008

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References

1. [1997] 2 All ER 513, [1997] 1 WLR 687.

2. Mr Morris had some powerful allies: Swansea City Council had previously designated the area on which the chalets stood, Holt's Field, near Murton, as a conservation area in response to Elitestone's plans. Elitestone challenged this decision without success (R v Swansea City Council, ex p Elitestone Ltd (1992) 65 P&CR 300 (QBD); (1993) 66 P&CR 422 (CA)). As part of the proceedings in the Queen's Bench Division, Elitestone had also challenged, again unsuccessfully, a decision by the Secretary of State for Wales dismissing an appeal against Swansea City Council's refusal of outline planning permission. The judge (Macpherson J) commented that ‘of course if Elitestone insist upon their wish to develop this site, nobody can stop them from trying again, although perhaps they will realise that as a result of this litigation the obstacles which they face locally are considerable’ (at 309). They tried again.

3. Rent Act 1977, s 1.

4. Elitestone Ltd v Morris (1995) 73 P&CR 259.

5. [1997] 2 All ER 513 at 519b (Lord Lloyd of Berwick).

6. Ibid, at 519h.

7. Ibid, at 517h–j.

8. Ibid, at 523f–h.

9. Bridge, S Part and parcel: fixtures in the House of Lords’ (1997) 56 Cambridge Law Journal 498 CrossRefGoogle Scholar at 500.

10. H Conway ‘Elitestone Ltd v. Morris and another’ [1998] Conveyancer 418 at 426.

11. Gentleman's Magazine May 1806, p 483.

12. Baker identifies the ‘young or disappointed barrister producing a standard work of reference’ as one of two distinct schools of nineteenth century legal writer (the other, later in the century, comprises university academics): Baker, Jh Introduction to English Legal History (London: Butterworths, 4th edn, 2002) p 192 Google Scholar. AWB Simpson suggests a mundane reason why Woodfall may have turned to authorship: ‘Woodfall, it is said, broke his leg’ ( at 664). Simpson does not provide, and the present writer has been unable to locate, a source for this anecdote.

13. Simpson, Awb (ed) Biographical Dictionary of the Common Law (London: Butterworths 1984) p 507 Google Scholar. Simpson notes that ‘[t]hough not bedside reading Tidd's writings are masterly in their accuracy, economy and clarity’. Tidd was later to become the favourite author of Uriah Heep. In chapter 16 of David Copperfield, the hero finds Uriah Heep reading ‘a great fat book’: ‘“...I am improving my legal knowledge, Master Copperfield,” said Uriah. “I am going through Tidd's Practice. Oh, what a writer Mr. Tidd is, Master Copperfield!”.’ ().

14. Containing a rare example of indexer's wit: under the heading ‘Licence’, the reader will find a sub-heading ‘kill, to’ and a reference to para 0.07.

15. S Sweet, A Maxwell, Stevens & Sons, 1830. Subsequent editions have been numbered from Harrison's 1830 ‘first edition’, rather than Woodfall's 1802 first edition; the looseleaf edition first published in 1978 (which might properly be reckoned the thirty-fifthh edition) accordingly appears as the twenth-eighth.

16. From the preface to the twenth-sixth edition (edited by Lionel A Blundell and VG Wellings (Sweet & Maxwell, 1960) p v.

17. The supposed convention that until relatively recent times a textbook could not be cited in court in the lifetime of its author (though stated in these terms in a number of introductory texts) seems never to have existed in so wide a form. It was certainly true that a living writer could not be cited as authority (see Allen, Ck Law in the Making (Oxford: Clarendon Press, 7th edn, 1964) p 278 Google Scholar n 3), and there was (at certain periods, at least) an absolute prohibition on the citation of works by living authors who were practising barristers: see Tichborne v Weir[1891–94] All ER 449 at 450I. That works by other living authors were cited with some frequency, though not as ‘authority’, can be readily deduced from the complaints of Kekewich J in Union Bank v Munster (1887) 37 ChD 51 at 54. Kekewich did not mention practising barristers, but he did not need to do so; the book to which he was objecting (Fry on Specific Performance) was written by a member of the Court of Appeal.

18. Woodfall Release 64 (March 2006) vol 1, p 13/83, n 7.

19. The writer would wish to give a more precise date at this point, but cannot do so. Looseleaf works, in common with electronic resources, present the researcher with a moving target; any good law librarian will have ensured that his looseleaf texts were fully up to date and will have followed the publishers' instructions to discard superseded pages. The British Library has done so. The ‘Preface’ to the current edition of Woodfall records that the entire text was rewritten between 1989 and 1994, when the looseleaf ‘twenty-eighth edition’ (edited by VG Wellings and N Huskinson) became the ‘looseleaf edition’ (General Editor K Lewison). The writer suspects that the threefold classification originated with this rewriting, but he has erred on the side of caution in the text, and would be glad to hear from anyone who has a pre-1994 looseleaf edition which has not been updated.

20. Blundell, La and Wellings, Vg (eds) Woodfall's Law of Landlord and Tenant (London: Sweet & Maxwell, 27th edn, 1968 Google Scholar), vol I, pp 695–696, para 1567 (footnotes omitted).

21. Above n 18, para 13.131.

22. Very similar versions of this text can be found in editions from the 19th (1912, p 739) to the 25th (1960, vol 1, p 760, para 1723).

23. See, eg, the statement in Hamp v Bygrave (1982) 266 EG 720 at 726 that garden ornaments, held to be fixtures, were ‘part and parcel of’ the garden, and the statements in Dibble v Moore[1970] 2 QB 181 at 189, referring to non-attached greenhouses as ‘clearly not part or parcel of the land’ and commenting on the use of the phrase ‘part or parcel of…the land’ in s 62 of the Law of Property Act 1925. Adkin, Bw and Bowen, D The Law Relating to Fixtures (Estates Gazette, 3rd edn, 1947)Google Scholar begins (p 1) with a definition of ‘fixtures’ as ‘things which, by their annexation to land and so long as they are so annexed, have lost their character as personal chattels and become part and parcel of…the land to which they are so annexed’. A definition, with some differences of wording but with the phrase ‘part and parcel’, from an earlier edition of Adkin and Bowen's book was quoted with approval in Hulme v Brigham[1943] KB 152 at 154.

24. Above n 20, p 696, para 1568 (emphasis added).

25. [1925] 1 KB 119.

26. Ibid, at 123.

27. With commendable candour, another member of the Court of Appeal commented (ibid, at 122) that ‘I have always had a difficulty in understanding what is meant by “landlord's fixtures”’.

28. See Lord Clyde's quotation ([1997] 2 All ER 513 at 521g) of the words of Lord Cairns LC in Bain v Brand (1876) 1 App Cas 762 at 767.

29. The Court of Appeal had relied in part on Webb v Frank Bevis Ltd [1940] 1 All ER 247, and had said that a large shed in that case had been held to be a chattel; in fact it had been held to be a ‘trade fixture’: see the comments of Lord Lloyd, [1997] 2 All ER 513 at 517e, and Lord Clyde, ibid, at 522d.

30. [1997] 2 All ER 513 at 516j (Lord Lloyd) and 521a (Lord Clyde).

31. Some more information about Amos and Ferard's treatise, and about its influence on the development of the law, is given in Luther, P Fixtures and chattels: a question of more or less… 2004] 24 Oxford Journal of Legal Studies 597.CrossRefGoogle Scholar

32. 1 Atk 477, 26 ER 304.

33. Amos, A and Ferard, J A Treatise on the Law of Fixtures (Joseph Butterworth and Son, 1827) p 2.Google Scholar

34. Ibid.

35. Re De Falbe, Ward v Taylor [1901] 1 Ch 523, Boyd v Shorrock (1867) LR 5 Eq 72 and Ex p Barclay, Re Gawan (1855) 5 De G M & G 403, 43 ER 926.

36. Parsons v Hind (1866) 14 WR 860 at 861. The style and grammar of this extract suggest that this is probably a reporter's note of an extempore judgment.

37. Amos and Ferard had listed ‘purpose and object’ of annexation as the ‘great and leading principle’ governing ‘the doctrine of fixtures’, ie fixtures in their sense of tenant's fixtures. A line can be traced from this, through the judgment of Parke B in Hellawell v Eastwood (1851) 6 Ex 295, 155 ER 554, to the classic formulation of the circumstances in which an object became a fixture in the modern sense (‘degree of annexation' and ‘object of annexation’) by Blackburn J in Holland v Hodgson (1872) LR 7 CP 328. See the article cited above n 31, pp 611–615.

38. Woodfall Release 38 (June 1997) vol 1, p 13/88.

39. (1869) LR 4 Exch 328.

40. (1703) 1 Salk 368, 91 ER 320.

41. Above n 25 and related text.

42. [1937] 2 KB 283.

43. Ibid, at 289.

44. Above n 36 and related text.

45. The issue here was slightly more complex than it would be in the modern law, for at this period, before the Law of Property Act 1925, a mortgage of freehold land would commonly be effected by a transfer of the freehold to the mortgagee and a lease back to the mortgagor.

46. LR 4 Exch 328 at 329–330. Willes's reluctance to use the term ‘fixture’ at this point in his judgment may reflect the fact that one of the judges at an earlier stage of proceedings in the same case (Kelly CB in the Exchequer Division) had explicitly drawn attention to the ambiguity of the term, contrasting the Amos and Ferard definition with the use of the word ‘in its more general sense’: Climie v Wood (1868) LR 3 Exch 257 at 260.

47. Blackburn was one of the eight judges comprising the Exchequer Chamber in Climie v Wood, but in accordance with convention the judgment of the court was delivered by one judge alone.

48. (1855) 11 Ex 113, 56 ER 766.

49. Ibid, at 115 (Ex), 767 (ER).

50. (1703) 1 Salk 368, 91 ER 320. All references to this case are to this citation; the report occupies only one page both in Salkeld's Reports and in the English Reports.

51. This point is made in the notes to the 1795 edition of Salkeld's Reports, reprinted in the English Reports: ‘Of late years many things are allowed to be removed by tenants which would not have been permitted formerly; as marble chimnies, etc.’; ibid.

52. [2001] 2 All ER 409.

53. No ordinary houseboat: ‘a converted wooden D-Day landing craft, fitted inside a steel Thames barge’; ibid, at 411b.

54. Ibid, at 414e.

55. See above n 18.

56. [2005] EWHC 983 (QB), [2005] 3 EGLR 127.

57. Landlord and Tenant Act 1954, s 1(f).

58. Above n 56, at [21].

59. Ibid, at [46].

60. Above n 29.

61. For example, see above n 56, at [41]–[44].

62. Above n 8.

63. Above n 56, at [45].

64. [2002] EWCA Civ 1076, [2002] 3 EGLR 79.

65. This was the basis of Swansea City Council's decision to designate Holt's Field as a conservation area: see the extract from their Director of Development's report quoted by Mann LJ in R v Swansea City Council, ex p Elitestone Ltd (1993) 66 P&CR 422 at 423.

66. The agent of the landlord at the time wrote to all tenants in October 1997 seeking to reassure them: his letter referred to ‘unforeseen difficulties which arose from a recent decision of the House of Lords and which has tended to discourage prospective purchasers from paying the prices sought by the tenants for their leasehold interest’ (above n 64, at [23]).

67. This suggests that Keelwalk Ltd, unlike Elitestone Ltd, had bought the freehold of the plots to generate a steady income (whether from rent or from the occasional sale of freehold plots) rather than with any intention to redevelop the site. They would have found it difficult to do so in any event, as they had purchased the freehold of only 23 out of 73 plots on the development, and might well have faced problems obtaining planning permission – the development fell within an area designated as Heritage Coast (see the website available at http://www.countryside.gov.uk/LAR/Landscape/DL/heritage_coasts/flamboroughhc.asp).

68. As the trial judge appears to have thought: see above n 64 at [41].

69. Cooke, E Land Law Clarendon Law Series (Oxford: Oxford University Press, 2006) p 8.Google Scholar