Licences and Land Law: An Alternative View
| Published date | 01 November 1986 |
| DOI | http://doi.org/10.1111/j.1468-2230.1986.tb01714.x |
| Date | 01 November 1986 |
LICENCES AND LAND LAW:
AN ALTERNATIVE VIEW
Introduction
LICENCES
in relation to land have been a fruitful source of academic
debate for over
30
years,’ and recent events have caused the
debate to take on a new and vigorous lease of life.* Successive
protagonists each claim to have discovered a more convincing
rationalisation of the existing law, and although differences of
viewpoint exist within the framework of this discussion, they share
one crucial feature in common-an assumption of the importance
of the quest for conceptual answers to conceptual questions.
Amongst these, two questions stand out as the most controversial;
first, do licences bind third parties, and secondly, can licences be
accommodated within existing concepts, or are new ones needed?
The tenor
of
the discussion may in part be the result of certain
comments made by Browne-Wilkinson
J.
in
Re Sharpe
concerning
the “confused and difficult” state of the law and the need for
rati~nalisation,~ comments which the academic writers involved
have taken as their cue to offer their own simplified versions of the
law relating to licences, centring in the main on the two conceptual
issues outlined above.
In a sense, then, given the objectives of the debate, it is
inevitable that the issues canvassed have been conceptual ones; but
I
shall argue that in attempting to reduce the complexity of the law
to levels acceptable for judicial consumption the way in which the
courts have developed the licence as a technique of dispute-
settlement has been obscured while the significance of the licence
has been systematically underplayed and discussed in the light of
only a limited range of “policy” issues. In short, the debate is
characterised by what Robert Gordon has termed “Cartesianism”-
that is, “the intellectual strategy of constructing highly simplified
models of social reality for the sake of analytic rigour and
elegan~e.”~ In Section A,
I
will outline certain characteristic
Discussion acquired a recognisably “modern” form with H. W. R. Wade’s “What is a
licence?”
(1948)
64
L.Q.R.
57
and “Licences and Third Parties”
(1952)
68
L.Q.R.
337.
The following is a mere selection, but they are chosen as the best examples
of
their
type:
A.
Briggs, “Licences: Back to Basics”
[1981]
Conv.
212;
M. P. Thompson,
“Licences: Questioning the Basics”
[1983]
Conv.
50;
A.
Briggs, “Contractual Licences:
A
Reply”
I19831
Conv.
285;
A.
Everton, “Towards
A
Concept of ‘Quasi-Property’?’’
[
19821
Conv.
118
and
177;
S.
Moriarty, “Licences and Land Law: Legal Principles and Public
Policies”
(1984) 100
L.Q.R.
376.
[1980]
1
W.L.R.
219
at
226.
“Historicism in Legal Scholarship”
(1981)
90
Yale
L.J.
1017
at
1026.
This
phenomenon is not confined to legal discourse; Terry Eagleton has noted a tendency in
literary criticism towards “secondary revision” which “fills
in
the text’s gaps and smoothes
over its contradictions, domesticating its disparate aspects and defusing its conflicts. It
does this
so
that the text may be,
so
to speak, more easily ‘consumed‘-so that the path
is made straight for the reader, who will not be ruffled by any unexplained irregularities.”
(Literary Theory: An Introduction
(1983),
p.181).
741
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