On Wed, 30 Dec 2009, wrote:

On Dec 30, 9:39*am, "Richard J." wrote:
Desmo Paul wrote on 30 December 2009 07:38:35 ...

Does anyone know about the British Transport Commission Act 1949? *I
am told that it prevents anyone obtaining an easement over land owned
by the BTC or their successors. *The Land Registry says "Since the
passing of the British Transport Commission Act 1949, it has not been
possible to acquire a right of way by prescription over land owned by
the commission and forming an access or approach to, among other
things, any station, depot, dock or harbour belonging to the
commission (s.57, British Transport Commission Act 1949). The
references to the commissionmust now be read to include successor rail
authorities and the BritishWaterways Board."

I cannot find any version of the act and am wondering if anyone has
the precise text?

I haven't found the whole Act (it doesn't seem to be online
atwww.statutelaw.gov.uk), but there's a direct quotation from the
relevant section 57, as amended by later legislation,
athttp://www.planning-inspectorate.gov.uk/pins/row_order_advertising/co...
(see para. 8)

The 1949 Act is no longer in force (which is why no U.K. current statute
database contains any of its terms)

Are you sure? It's not in the Statute Law Database, certainly, and that
does claim to have everything that was in force in 1991 or after.

However! There are certainly mentions of it post 1991 which imply that it
*was *still in force - the SI that prompted by previous post, and also a
proposed amendment in 1994 [1]. In the debate on that amendment, the MP
for Thurrock said:

I could find only one copy of the primary statute -- the British
Transport Commission Act 1949 -- in the Palace of Westminster and that
took some discovery late at night on Thursday, before the Bill was
published.

So perhaps this is an act which is in force, but of which all the copies
have gone missing, and hence it's not in the database. It seems like this
problem may not be unique to this act; elsewhere in that debate, the
minister admits that:

No Labour or Conservative Minister since the war has ever been able to
give an assurance that complex legislation stemming from the 1945 to 1951
Parliament would be 100 per cent. right.

!

Now, i noticed in the schedule to the 1962 act mentioned in my previous
post that the 1949 act was listed as a local, rather than a general, act.
That means we can pull something else out of our arsenal - OPSI's
Chronological Tables of Local Acts [2]. These are tables of all acts
classified as local, listing all amendments and repeals which have
affected them. They're not normative, but they're the result of a 20-year
project by the Law Commission, so they should be pretty solid.

The 1949 act is indeed listed [3] (under c.xxix British Transport
Commission - and the chapter number matches that given in the 1962 act, so
this is the right thing). The entry is huge, and doesn't, as far as i can
see, mention any general repeal or consolidation of the act. There is an
entry for section 57:

57 am.- Tpt. 1962 (c.46), s.32, sch.2 pt.III; 1968 (c.73), s.156(2),
sch.16 para.7; Tpt.(London) 1969 (c.35), s.17, sch.3
para.2(1)(2); London Regional Tpt. 1984 (c.32), s.67(2)(3),
sch.4 para.8(2)(3)(d).

Which also doesn't mention repeal. I haven't looked at any of the acts
listed there, but they are listed as amending, rather then repealing, so i
assume they don't fundamentally nobble section 57.

(Aside - the bit for section 57 looks like it's under a cross-reference to
the Heathrow Express Railway Act 1991 [5], but i've looked at that, and it
doesn't mention section 57, so i think this is an idiosyncracy of the
layout of the Table)

So, in conclusion, i think what we have here is a law that is in force,
but isn't listed in the databases. I will drop the SLD chaps a note.

tom

[1] http://www.theyworkforyou.com/debate...94-03-21a.84.3
[2] http://www.opsi.gov.uk/chron-tables/...-to-local-acts
[3] http://www.opsi.gov.uk/chron-tables/local/chron174

--
agriculture, animal husbandry, and plains-like landscape

Tom Anderson wrote on 31 December 2009 15:09:26 ...
On Wed, 30 Dec 2009, wrote:

On Dec 30, 9:39 am, "Richard J." wrote:
Desmo Paul wrote on 30 December 2009 07:38:35 ...

Does anyone know about the British Transport Commission Act 1949? I
am told that it prevents anyone obtaining an easement over land owned
by the BTC or their successors. The Land Registry says "Since the
passing of the British Transport Commission Act 1949, it has not been
possible to acquire a right of way by prescription over land owned by
the commission and forming an access or approach to, among other
things, any station, depot, dock or harbour belonging to the
commission (s.57, British Transport Commission Act 1949). The
references to the commissionmust now be read to include successor rail
authorities and the BritishWaterways Board."

I cannot find any version of the act and am wondering if anyone has
the precise text?

I haven't found the whole Act (it doesn't seem to be online
atwww.statutelaw.gov.uk), but there's a direct quotation from the
relevant section 57, as amended by later legislation,
athttp://www.planning-inspectorate.gov.uk/pins/row_order_advertising/co...
(see para. 8)

The 1949 Act is no longer in force (which is why no U.K. current statute
database contains any of its terms)

Are you sure? It's not in the Statute Law Database, certainly, and that
does claim to have everything that was in force in 1991 or after.

However! There are certainly mentions of it post 1991 which imply that it
*was *still in force - the SI that prompted by previous post, and also a
proposed amendment in 1994 [1]. In the debate on that amendment, the MP
for Thurrock said:

I could find only one copy of the primary statute -- the British
Transport Commission Act 1949 -- in the Palace of Westminster and that
took some discovery late at night on Thursday, before the Bill was
published.

So perhaps this is an act which is in force, but of which all the copies
have gone missing, and hence it's not in the database.

TSO are offering a printed copy for £6. ISBN 9780105201557

They say it's printed on demand. If you ask for a copy, they'll print
one within 1 to 3 days, which I guess means they have an electronic copy.

--
Richard J.
(to email me, swap 'uk' and 'yon' in address)

Desmo Paul wrote

Can a legal easement be obtained over land owned by a railway
company? Or rather could it be obtained say in 1955 whether latterly
repealed or not? It seems railway land was curiously protected?

So are urban commons !

There was a legal case in May/June 2007 which held (for Wimbledon
Common) that since the trustees had no power to grant an easement it
could not be acquired by adverse possession (squatters rights) either.

--
Mike D

On 31 Dec, 20:13, "Michael R N Dolbear" wrote:
Desmo Paul wrote

Can a legal easement be obtained over land owned by a railway

company? *Or rather could it be obtained say in 1955 whether latterly
repealed or not? *It seems railway land was curiously protected?

So are urban commons !

There was a legal case in May/June 2007 which held (for Wimbledon
Common) that since the trustees had no power to grant an easement it
could not be acquired by adverse possession (squatters rights) either.

--
Mike D


Thanks for that and have now read it - copied below.


THE registered proprietors of a house built in the late nineteenth
century
claimed that their property enjoyed the benefit of an easement,
being a pedestrian and vehicular right of way, over Wimbledon
Common. They contended that the easement had been acquired by
“long prescription” pursuant to section 2 of the Prescription Act
1832,
as it had been used openly and as of right for a period of more than
40
years next before the commencement of proceedings. The claim failed
before the Adjudicator to the Land Registry, and an appeal to the High
Court was dismissed (Housden v. Conservators of Wimbledon & Putney
Commons [2007] EWHC 1171, [2007] 1 W.L.R. 2543) on the grounds
that the Conservators in whom the common was vested lacked capacity
to grant an easement over the relevant land and that long
prescription,
being based on a presumed grant, could not therefore operate in favour
of the claim. However, the claimants succeeded before the Court of
Appeal ([2008] EWCA Civ 200, [2008] 1 W.L.R. 1172, Mummery,
Carnwath, Richards L.JJ.) which unanimously held that the Conservators
had power to grant an easement over the common.
The first issue, that of capacity, involved close interpretation of
the
Wimbledon and Putney Commons Act 1871, the statute which established
the Conservators and vested the common in them. Section 8
conferred on them the power “to take and hold and to dispose of (by
grant, demise, or otherwise) land and other property”, words which
without more would indicate that they had power to grant an easement.
However, section 35 provided that, “It shall not be lawful for the
conservators,
except as in this Act expressed, to sell, lease, grant or in any
manner dispose of any part of the commons.” This provision, held by
the Adjudicator and the High Court to deny the Conservators power to
grant an easement over the common, was given a more restrictive
interpretation
by the Court of Appeal. There can be no doubt that
granting an easement over land must amount to a disposal of part of
the land, as a new right is being created over land which affects the
use to which that land can now be put. However, granting an
easement would not necessarily be incompatible with the broad
objectives
of the 1871 Act to conserve the commons as an unenclosed, and
unbuilt on, open space. Adopting a purposive approach, the Court of
Appeal held that an express grant of the easement claimed would not
contravene section 35 as it would not amount to a disposal of “part of
the commons” (as opposed to a disposal of “land” or an “estate,
interest
or right in land”, words which if they had been used would
have clearly denied capacity to grant). That was enough to decide the
case.
The second issue was whether “long prescription” under section 2 of
the Prescription Act 1832 required proof of capacity to make a grant.
This much criticised provision states that on 40 years’ enjoyment
within
its terms “the right thereto shall be deemed absolute and
indefeasible”
save where it was so enjoyed “by some consent or agreement expressly
given or made for that purpose by deed or writing”. Similar words in
section 3 of the 1832 Act, which is concerned with prescriptive
acquisition
of rights of light, led the House of Lords in 1865 to decide that a
right of light could be acquired without any recourse to the fiction
of a
presumed grant, as the terms of the statute themselves conferred the
right: Tapling v. James 11 HL Cas 290. Megarry and Wade’s Law of
Real Property, (6th ed.) 18–160, considered that as a matter of
principle
it should therefore be possible for “long prescription” to be
effective
against servient owners, such as certain corporations, which have no
power to grant. In Housden, Mummery L.J. (giving the leading judgment
of the Court of Appeal) was sympathetic to this view, not only on
a true construction of the statute but also on policy grounds.
However,
adherence to precedent (the 1866 decision of the House of Lords in
Proprietors of Staffordshire and Worcestershire Canal Navigation v.
Proprietors of Birmingham Canal Navigations L.R. 1 H.L. 254) compelled
him to come down in favour of the alternative view that the
opening words of section 2 (the reference to “claims which may
lawfully
be made at the common law, by custom, prescription, or grant”)
“control the whole section” and import the common law presumption
of grant to both short and long prescription periods. It followed
that,
where a servient owner was legally incapable of granting the easement,
the claim must fail, however long the period of use which can be
established.
As the Court of Appeal noted in Housden, prescription is topical.
Not only is it a highly litigious area of the law which has been
considered
on a number of recent occasions by the House of Lords and the
Court of Appeal, it is one of the main items on the agenda of the Law
Commission in its current review of the law of easements, covenants
and profits a` prendre. The Law Commission’s Consultation Paper,
Law Com CP No 186 (2008), published a matter of days after Housden,
leaves the reader in no doubt of its provisional view that reform is
essential, although it maintains an open mind as to the best way
forward
for reform of prescriptive acquisition, in particular on the difficult
question whether prescription should be abolished outright or
whether it should be amended and put into coherent statutory form
(see paras. 4.175 to 4.193). The Commission’s tentative exposition of
a
replacement statutory scheme provisionally proposes the removal of
the “unsatisfactory” fiction of grant (see para. 4.171) and the
replacement
of acquiescence as the underlying basis of prescriptive acquisition
by long use. Not only would reform along such lines rid the law of
reliance on fictions which spawn the potential for injustice, it would
lay
the necessary foundations for “the simpler law of prescription” which
Mummery L.J. conceded has become, in modern conditions, “of more
rather than less concern.”

In message . li, Tom
Anderson wrote:
The 1949 Act is no longer in force (which is why no U.K. current
statute database contains any of its terms)

Are you sure?

No. The Crossrail Act 2008 refers to it, for a start.

57 am.- Tpt. 1962 (c.46), s.32, sch.2 pt.III; 1968 (c.73), s.156(2),
sch.16 para.7; Tpt.(London) 1969 (c.35), s.17, sch.3
para.2(1)(2); London Regional Tpt. 1984 (c.32), s.67(2)(3),
sch.4 para.8(2)(3)(d).

Which also doesn't mention repeal. I haven't looked at any of the acts
listed there, but they are listed as amending, rather then repealing,
so i assume they don't fundamentally nobble section 57.

The LRT Act simply transfers certain functions from "the Executive" to
LRT. So I agree that it's still in force.

--
Clive D.W. Feather | Home:
Mobile: +44 7973 377646 | Web: http://www.davros.org
Please reply to the Reply-To address, which is:

In article 01ca8a42$5bd46040$LocalHost@default, (Michael
R N Dolbear) wrote:

Desmo Paul wrote

Can a legal easement be obtained over land owned by a railway
company? Or rather could it be obtained say in 1955 whether latterly
repealed or not? It seems railway land was curiously protected?

So are urban commons !

There was a legal case in May/June 2007 which held (for Wimbledon
Common) that since the trustees had no power to grant an easement it
could not be acquired by adverse possession (squatters rights) either.

The Wimbledon and Putney Commons legislation is quite peculiar in at least
some respects so that decision might not be of general application.

--
Colin Rosenstiel

Desmo Paul wrote:
Does anyone know about the British Transport Commission Act 1949? I
am told that it prevents anyone obtaining an easement over land owned
by the BTC or their successors. The Land Registry says "Since the
passing of the British Transport Commission Act 1949, it has not
been possible to acquire a right of way by prescription over land
owned by the
commission and forming an access or approach to, among other things,
any
station, depot, dock or harbour belonging to the commission (s.57,
British
Transport Commission Act 1949). The references to the commissionmust
now
be read to include successor rail authorities and the BritishWaterways
Board."

I cannot find any version of the act and am wondering if anyone has
the precise text?

Hmm, I found

Railway and Canal Commission (Abolition) Act 1949 (c.11)

At http://www.statutelaw.gov.uk/

Which transferred functions from the aforementioned commission to the
courts.

Can't see a British Transport Commission Act though.

Could it be a case of the wrong title?

I can't find a s57 in that act though, only goes up to s8.

Have you tried the '47 Transport Act?

Following from Clive's post:

In the Crossrail Act 2008, I found reference to:

British Transport Commission Act 1949 (c. xxix)

1949 c. 29 is, according to statuelaw.gov.uk, "The Consular Conventions
Act 1949" ... maybe I don't understand the numbering, or I'm getting the
Roman numerals wrong, but I think xxix = x + x + (x - i) = 10 + 10 + (10
- 1) = 10 + 10 + 9 = 29?

I also found a reference to the BTC Act 1949 in:

The Railways Act 1993 (Consequential Modifications) (No. 2) Order 1999
(No. 1998)

In fact, when I do a full text search, I find 61 results that reference
the British Transport Commission Act 1949, the latest being "The
Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order
2009 (No. 83)" which specifies the amount of a fixed penalty for certain
offences defined in the 1949 act.

I've emailed the contact email address at statutelaw.gov.uk to ask why
the 1949 act isn't on the database.

Rgds

Denis McMahon

On Thu, 31 Dec 2009, Richard J. wrote:

Tom Anderson wrote on 31 December 2009 15:09:26 ...
On Wed, 30 Dec 2009, wrote:

On Dec 30, 9:39 am, "Richard J." wrote:
Desmo Paul wrote on 30 December 2009 07:38:35
...

Does anyone know about the British Transport Commission Act 1949? I am
told that it prevents anyone obtaining an easement over land owned by
the BTC or their successors. The Land Registry says "Since the passing
of the British Transport Commission Act 1949, it has not been possible
to acquire a right of way by prescription over land owned by the
commission and forming an access or approach to, among other things, any
station, depot, dock or harbour belonging to the commission (s.57,
British Transport Commission Act 1949). The references to the
commissionmust now be read to include successor rail authorities and the
BritishWaterways Board."

I cannot find any version of the act and am wondering if anyone has
the precise text?

I haven't found the whole Act (it doesn't seem to be online
atwww.statutelaw.gov.uk), but there's a direct quotation from the
relevant section 57, as amended by later legislation,
athttp://www.planning-inspectorate.gov.uk/pins/row_order_advertising/co...
(see para. 8)

The 1949 Act is no longer in force (which is why no U.K. current statute
database contains any of its terms)

Are you sure? It's not in the Statute Law Database, certainly, and that
does claim to have everything that was in force in 1991 or after.

However! There are certainly mentions of it post 1991 which imply that it
*was *still in force - the SI that prompted by previous post, and also a
proposed amendment in 1994 [1]. In the debate on that amendment, the MP for
Thurrock said:

I could find only one copy of the primary statute -- the British
Transport Commission Act 1949 -- in the Palace of Westminster and that
took some discovery late at night on Thursday, before the Bill was
published.

So perhaps this is an act which is in force, but of which all the copies
have gone missing, and hence it's not in the database.

TSO are offering a printed copy for ?6. ISBN 9780105201557

They say it's printed on demand. If you ask for a copy, they'll print
one within 1 to 3 days, which I guess means they have an electronic
copy.

I wouldn't absolutely rule out the possibility that they send someone up
to the Commons archives to photocopy it! But yes, you're almost certain
right. I wonder how it slipped through the SLD's net, if indeed it has?

tom

--
There are many ways of going crazy, but the most valuable of them is
this one which makes a genius out of an ordinary man. -- Claudio Grondi

On Fri, 1 Jan 2010, Denis McMahon wrote:

Following from Clive's post:

In the Crossrail Act 2008, I found reference to:

British Transport Commission Act 1949 (c. xxix)

1949 c. 29 is, according to statuelaw.gov.uk, "The Consular Conventions Act
1949" ... maybe I don't understand the numbering, or I'm getting the Roman
numerals wrong, but I think xxix = x + x + (x - i) = 10 + 10 + (10 - 1) = 10
+ 10 + 9 = 29?

I think there are separate numbering sequences for general public acts and
local acts, with the former having arabic numerals and the latter
lowercase roman. The British Transport Commission Act is a local act, but
you've looked for public acts.

tom

--
There are many ways of going crazy, but the most valuable of them is
this one which makes a genius out of an ordinary man. -- Claudio Grondi

Tom Anderson wrote:

I think there are separate numbering sequences for general public acts
and local acts, with the former having arabic numerals and the latter
lowercase roman. The British Transport Commission Act is a local act,
but you've looked for public acts.

I specified all legislation, and the search won't accept roman numerals.

Rgds

Denis McMahon