Admittedly, a blog on the intricacies of the Community Infrastructure Levy (“CIL“) doesn’t sound like a very appealing prospect, but everyone needs their medicine occasionally.
In December 2022, the Court of Appeal had to consider the legal consequences of a local authority’s failure to serve a CIL liability notice and the question of whether the local authority could correct the defects in an earlier notice by serving a revised CIL liability notice.
We often get asked, when clients are faced with obstinate and, frankly, slow local authorities dealing with planning applications or s106 agreements, whether we can threaten legal action (other than planning appeals). Most of the time this is just letting off steam, but what is the answer?
A recent 140-page judgment in the case of Primavera v Hertsmere Borough Council (2022) considered if, and in what circumstances, a local planning authority might be liable for negligence for the way it dealt with a planning application.
In the second of our blog posts on some key developments in planning law in 2022, we look at some new proposals set out in a Consultation published in December 2022 on how to stop landbanking. These come on top of some new provisions known as the “use it or lose it” clauses in the Levelling-up and Regeneration Bill which is slated to become law in spring of this year.
The process of landbanking, whereby landowners obtain planning permission (thereby securing an enhanced value for their landholdings) but fail to implement (or at least substantially complete) a permission, has long been identified as a problem, particularly in the residential sector. The problem is now acute with the lack of suitable and affordable housing availability.
Continue Reading Our top 6 Planning Law takeaways in 2022 – Part 2: Proposals to stop “landbanking”
The widely anticipated judgement of the case of Fearn and Others v Board of Trustees of the Tate Gallery from the Supreme Court was delivered on 1 February 2023, opening up the potential for many new claims of nuisance by way visual intrusion.
The Facts of the Case
The Tate Modern contains a public viewing platform on its top floor (constructed in 2016), which provides views over the city of London to hundreds of thousands of visitors each year, but also a direct view into a number of residential flats (constructed some four years prior) which are located nearby, and which were built with floor to ceiling glass panels. The claimants are residents of four flats who originally brought a claim in nuisance and sought an injunction requiring the Tate Modern to prevent members of the public from being able to look into their homes, by cordoning off or screening the part of the viewing platform.
Continue Reading A room with a view…. and a nuisance – The Tate Modern
“Pay Now, Argue Later”: tenant-friendly interpretation of service charge provisions provides grist for disputes
Introduction
This case is of interest because commercial service charges are very rarely reviewed by the Supreme Court. The majority decision gives a surprisingly tenant-friendly view on what was a very traditionally worded service charge schedule. As a result, landlords are now at risk of more pushback and argument from their tenants about the service charges they pay.
Continue Reading Sara & Hossein Asset Holdings Limited v Blacks Outdoor Retail Limited [2023] UKSC 2
Over the next few weeks we’re going to let you in on our Top 6 developments in planning law from 2022. These might not be the best known (or infamous) cases, but hopefully if you aren’t already aware of them they might provide you with food for thought.
The Supreme Court decision in the Hillside case – The problem of overlapping planning permissions
Top of the pile for us is the Supreme Court decision in Hillside v Snowdonia Natural Park Authority. This looks at the perennial question: can you take advantage of two (or more) overlapping planning permissions over the same land, or do you lose the benefit of one of them by implementing the other one?
Introduction
English property law has developed a sophisticated system of property rights in land, to enable joint ownership of land and to regulate successive interests in the same land over a period of time. This was largely achieved by the recognition of an additional type of interest in land, separate from the legal title. An equitable interest could, in certain circumstances, be untethered from the legal title and become a separate right. This is seen most often in situations where two or more parties own land together. They are joint legal owners – both names will appear on the title register – but they also hold the entire beneficial interest on trust for each other.
Continue Reading No going back: the transfer of beneficial interests in land
EDIT 22.11.2022: as this post went to press, the Appeal Court departed from the view of both the High Court and the County Court, and proclaimed a strict orthodoxy. They held that the judge below had asked himself the wrong question; he should have asked whether the notice had been given to the tenant, not what the notice had meant. The appeal shows that the utmost care must be taken when serving break notices, as the court will show no leniency if the notice is incorrect.
Ensuring a break notice is validly served can be critical, especially for fixed break dates as without a rolling break option there is only one ‘bite of the cherry’ to break the lease. The consequences of serving an invalid break notice may be drastic, for example, it may fetter a landlord in obtaining vacant possession in order to carry out a development scheme or a tenant may remain liable for a lease that it no longer wants and cannot get rid of in any other way.
Continue Reading Nelsonian blindness is no defence to a break notice
For those of you living outside of the UK, Waitrose is an upmarket supermarket whose wares are indefinably better, or at least more expensive, than its competitors. If an area hosts a Waitrose, then it proves that it is a good place to live, and property prices will leap with joy at the privilege.
Competition law rarely intrudes into land agreements. Indeed, until 2011, when the Groceries Market Investigation (Controlled Land) Order 2010 (the ‘Order’) was introduced, most land agreements were not caught at all. In the past eleven years there have been very few cases brought under the legislation, explicable by the softly, softly approach that the regulator, the Competition and Markets Authority (“CMA”), chooses to take.
The Court of Appeal, in the conjoined appeals of London Trocadero (2015) LLP v Picturehouse Cinemas Ltd and Bank of New York Mellon (International) Ltd v Cine-UK Ltd, once again vindicated beleaguered landlords by refusing to imply terms into professionally negotiated leases. Tenants cannot withhold rent except in circumstances expressly set out in the lease.
Buttressing the judgment is the reiteration of the stated “fundamental basis” of a lease: it is an estate granting exclusive possession for a fixed term, in consideration for payment of rent. The tenants’ frustrated intention to use the premises as a cinema was not sufficient to cause a total failure of consideration.