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England and Wales Land Registry Adjudicator

You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Gunnerside Estates Ltd v (1) Terence Milner (2) Cynthia Mary Milner (Easements and profits a prendre : Human Rights law) [2010] EWLandRA 2009_1331 (18 August 2010)
Cite as: [2010] EWLandRA 2009_1331

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The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002


IN the matter of a reference from hm land registry





Gunnerside Estates Limited






(1) Terence Milner

(2) Cynthia Mary Milner





Property Address: Aygill Cottage, Angram, Thwaites, Richmond

Title Number: NYK231156



Before: Mr. Colin Green sitting as Deputy Adjudicator to HM Land Registry


At: Leeds Combined Court Centre

On: Tuesday 5th August 2010



Applicant Representation: Mark Sefton of counsel


Respondent Representation: Terence Milner







KEYWORDS: An application to cancel a unilateral notice in respect of shooting rights on the basis that such rights interfered with the registered proprietors’ human rights under Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol. Human rights found to have no relevance to the question of cancellation, but if relevant found that the shooting rights do not interfere with the Convention rights, but the cancellation would adversely affect the Convention rights of the owner of the shooting rights.


CITATIONS: Law of Property Act 1922, Schedule 12; Land Registration Act 1925, ss.5(b) and 70(1)(j); Land Registration Act 2002, ss. 29, 32 — 36, 117 and Schedule 3; Human Rights Act 1998, ss. 3, 4 and 6; Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol; Campbell v. MGN Ltd [2004] 2 WLR 1232; Aston Cantlow PCC v. Wallbank [2003] UKHL 37; Countryside Alliance v. Attorney General [2007] UKHL 52; X and Y v. The Netherlands (1985) 8 EHRR 235





SUBJECT to the rights of the Lords of the Manor of Muker in Swaledale in or to the mines and minerals and the sporting and other rights (if any) preserved by the Law of Property Act 1922”

Issues and determination

“The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights.”

“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given affect in a way which is compatible with the Convention rights.

(2) This section—

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.”

“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if—

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section “public authority” includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.”

“Article 8

Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is 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.”


“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 a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”


“…the material Article is Article 1 of the First Protocol which endorses the entitlement to the peaceful enjoyment of a person's possessions and prohibits depriving a person of his possessions, subject to certain qualifications. The word ‘possessions’ has been considered by the European Court of Human Rights, in particular in the cases of Marckx v Belgium (1979) 2 EHRR 350 and Sporrong v Sweden (1982) 5 EHRR 35. It applies to all forms of property and is the equivalent of 'assets'. But what is clear is that it does not extend to grant relief from liabilities incurred in accordance with the civil law. It may be that there are cases where the liability is merely a pretext or mechanism for depriving someone of their possessions by expropriation but that is not the case here. The liability is a private law liability which has arisen from the voluntary acts of the persons liable. They have no Convention right to be relieved of that liability. Nor do they have a Convention right to be relieved from the consequences of a bargain made, albeit some 200 years earlier, by their predecessors in title.”


“The Court recalls that although the object of Article 8 (art. 8) is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see the Airey judgment of 9 October 1979, Series A no. 32, p. 17, para. 32). These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.”








Dated this 18th day of August 2010



By Order of The Adjudicator to HM Land Registry


[1] [2004] 2 WLR 1232

[2] [2003] UKHL 37

[3] [2007] UKHL 52

[4] (1985) 8 EHRR 235

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