216Property Law

discounted and the beneficiary would be regarded as the sole owner of the property in question. In contrast, in R. v. Tower Hamlets London Borough Council, ex parte Von Goetz [1999] 2 WLR 582, the Court of Appeal held that, for the purposes of section 104 of the Local Government and Housing Act 1989, the term ‘owner’s interest’ could include the interest of both trustees and beneficiaries. It is, perhaps, worth emphasising at this point that it is not our purpose to consider the merits of these various decisions. Each is a product of its own particular context, decided under a system in which no all-embracing definition of ownership exists and in which there is, consequently, a degree of flexibility that simply does not exist under the civil law. Such a contextual approach means that great care needs to be taken when considering the term from a technical standpoint. This can be seen in the Sale of Goods Act 1893, for instance, where the term ‘owner’ is frequently used absent any statutory definition because, even within the limited confines of this particular enactment, it has a meaning which ‘assumes significance only in relation to a particular issue with a particular person’ (see Battersby and Preston, ‘The Concepts of ‘‘Property’’, ‘‘Title’’ and ‘‘Owner’’’, p. 269).

6.3.2.As an amorphous notion

6.3.2.1.Ownership as an organising idea

The problem with our discussion so far is that, in concentrating on a number of separate roles played by the concept of ownership, we have over-rationalised the notion and in so doing produced a distorted image which obscures its primary role. For in reality the term is often used with no such specificity as simply an idea which, while by no means vague, is essentially amorphous. In essence, the term is often used simply to signify the bond that exists between ‘you’ (or ‘us’) and ‘it’ with no attempt to define its nature or extent. In this conception of ownership, the owner is the one (or many) whose decision as to what should or should not be done with a thing is regarded as, in the words of Waldron, ‘socially conclusive’.

It is in this sense that the term fulfils its primary role by providing a simple, readily understood notion of what it means to be the owner of a thing which, as we noted in section 6.1 above, the non-specialist can employ each time he is confronted by what would otherwise be an unfathomable conundrum. On occasion, this will produce the wrong result, as when the owner of a house expresses surprise that he is required to obtain planning permission and cannot do as he pleases with ‘his land’. Normally, however, the amorphous concept of ownership provides a simple test that invariably provides non-lawyers with a means of establishing what they can and cannot do with a particular thing, no matter how complex the actual property relationships involved. As you will see in later chapters, the property relationships that arise when, for example, a house is bought with the aid of a mortgage or a car purchased via a lease-back arrangement, are indeed complex but that does not prevent the ‘owner’, his friends (who might be visiting the house or borrowing the car for the afternoon) and, for that matter, total strangers normally