MODERN STUDIES IN PROPERTY LAW: VOLUME 8 This book contains a collection of peer-reviewed papers presented at the Tenth Biennial Modern Studies in Property Law Conference held at the University of Liverpool in April 2014. It is the eighth volume to be published under the name of the Conference. The Conference and its published proceedings have become an established forum for property lawyers from around the world to showcase current research in the discipline. This collection refl ects the diversity and contemporary relevance of modern research in property law. Incorporating a keynote address by Sir John Mummery, retired Lord Justice of Appeal, on ‘ Property in the Information Age ’ , a number of chapters consider the contribution of property law to issues central to the human condition; the home, health and death. Other papers illustrate an enduring need to question and explore fundamental concepts of the subject as well as to consider the challenges of reforming the law. Collectively the chapters demonstrate the vibrancy and importance of property law in dealing with modern concerns across the common law world. Previous volumes in this series: Modern Studies in Property Law: Volume 1 Edited by Elizabeth Cooke Modern Studies in Property Law: Volume 2 Edited by Elizabeth Cooke Modern Studies in Property Law: Volume 3 Edited by Elizabeth Cooke Modern Studies in Property Law: Volume 4 Edited by Elizabeth Cooke Modern Studies in Property Law: Volume 5 Edited by Martin Dixon Modern Studies in Property Law: Volume 5 Edited by Susan Bright Modern Studies in Property Law: Volume 6 Edited by Susan Bright Modern Studies in Property Law: Volume 7 Edited by Nicholas Hopkins Modern Studies in Property Law Volume 8 Edited by WARREN BARR OXFORD AND PORTLAND, OREGON 2015 Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place , Oxford , OX1 2JW Telephone: + 44 (0)1865 517530 Fax: + 44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland , OR 97213-3786 USA Tel: + 1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: + 1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © The editors and contributors severally 2015 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identifi ed as the authors of this work. Hart Publishing is an imprint of Bloomsbury Publishing plc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84946-622-6 ISBN (ePDF): 978-1-50990-183-8 Preface In April 2014, the Tenth Biennial Conference on Property Law was held at the Uni- versity of Liverpool; the fi rst time the Conference has been hosted in the North of England. I would like to thank the members of the Conference Editorial Board for entrusting the Conference to me, and to Liverpool. Sited at the Mersey Maritime Museum on the scenic Albert Dock, the Conference proceedings retained their inter- national fl avour and the unique mix of conviviality, scholarly rigour and fascinating academic debate that has been a hallmark of every Conference since its origins at the University of Reading in 1996. The Conference saw a welcome return of the Postgraduate Research Stream, inau- gurated at the Ninth Conference at the University of Southampton, which took place on the fi nal day and demonstrated that the future of the property law research is in very safe hands. New this year was the introduction of ‘ Work in Progress ’ sessions for academics to discuss and work through new ideas, short of presenting a full paper. These sessions were very well attended and received, and it is hoped will become a permanent feature of the Conference going forward. This volume, the eighth such edited collection, presents a wide spectrum of topics across the length and breadth of property law discourse. No theme for the Confer- ence was suggested, but the papers have usefully grouped themselves into several topics with numerous, interlinking themes. Every paper in this volume has been subject to peer review, and a very real debt of gratitude is owed to those anonymous referees who have given freely of their time and attention, and have enhanced the quality of the volume in consequence. To introduce these papers, I can do no better than deliberately ‘ borrow ’ words from the editor of the previous volume, Professor Nicolas Hopkins, who put is so well: ‘ Collectively, the contributions to this volume demonstrate the breadth, depth and variety of modern property law scholarship ’ . Each chapter deserves to be read in its entirety, and what follows is not a complete description of the contents of this volume, but instead just enough to whet the aca- demic appetite as to the coverage of topics by the various authors. This volume opens with the text of the keynote address, given by Sir John Mummery. This fascinating speech, reproduced here with only minor amendments and additions for publication, explores the concept of property in information; a key driver of mod- ern commerce and communications. It suggests a cautious approach to recognising property in information, and sets the tone for the other two contributions in this sec- tion, which deal with reform and legal process. Andrew Stevens refl ects broadly on the impact of the Scottish Law Commission on Property Law, while John Mee draws out cautionary tales for would-be reformers in the narrower, but very important, reforms of the law of prescription in Ireland. Part II contains essays relating to the planning law in England and Wales. Charles Mynors calls for a (much needed) simplifi cation of the planning processes and presents an important overview of the diffi culties with the current systems. vi Preface Barbara Boguz considers the balance between societal and economic interests in land regulation, and suggests that the state (and law) is more concerned with the former, not the latter, as issues such as regulating open spaces tend to fall primarily to private citizens. Finally in this section, Adam Barker considers whether there is any sound reason to allow some licensees not in actual possession of land to bring actions for recovery of land, re-investigating the decision in Manchester Airport v Dutton [2000] 1 QB 133 and its impact for developers of land who are often contractual licensees themselves. Adding an international fl avour, Part III considers property law and provision of property on death. Heather Conway ’ s paper introduces this section, and investigates claims made by fi nancially independent children to contest distribution of property by will or intestacy in England and Wales and Northern Ireland. Fiona Burns consid- ers the use of statutory wills in England and Australia in dealing with the property of the mentally incapacitated, who otherwise would be unable to make wills for themselves. Si ô n Hudson and Brian Sloan explore the limits of mutual wills in Eng- land and Wales in informal care situations and the fetters on testamentary freedom involved. Caryl Yzenbard brings this section to a close with a consideration of the distribution of property on intestacy in the United States. Part IV, loosely termed property and ownership, draws together discourse across some baseline issues of property law from different perspectives. Chris Bevan con- siders the role of the ‘ home ’ in modern property law, particularly after the two key decisions of the English Supreme Court in Stack v Dowden [2007] 2 AC 432 and Jones v Kernott [2012] 1 AC 776. Alison Clarke considers how communal land and resource rights should be accommodated within systems which record land rights on a register; a truly international exploration, but with a particular emphasis on sub-Saharan Africa. Jill Morgan conducts a comparative study of the US and UK approaches to recognising property ownership in mineral rights such as carbon cap- ture and storage; essential developments for environmental storage of dangerous substances and gases. Chris Willmore investigates whether leasehold structures, par- ticularly discontinuous leases, can be repurposed to enable voluntary sector partner- ships and collaboration. Refreshing perspectives on the norm continue as Graham Ferris refl ects on formalities through the lens of ‘ speech acts ’ , which it is agued may add clarity to analysis of some legal problems while Junita Roche conducts an explo- ration of the issues of deemed tenancies for life raised by the UK Supreme Court in Mexfi eld v Berrisford [2012] 1 AC 955 by an historical analysis of what the author terms ‘ constitutional land law ’ and looks to the very roots of the foundation of our system in so doing. Last by but no means least, the fi nal part of this volume considers specifi c issues relating to title. In turn, Simon Cooper considers the important issue of reliability of registered title, thought to be a cornerstone of the English system; while Lu Xu builds on research into the English version of commonhold, a system that has failed to gain much traction in the years since its introduction. Hanri Mostert and Leon Verstappen close this section, and the book, with an international dimension, sug- gesting that two apparently divergent law systems seem to be converging in their approaches to dealing with problems imposed by adherence to the ‘ numerus clausus ’ principle; namely rigidity and uncertainty.