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Monthly Update

December 2019

The December 2019 update is now available.

Topics this month:
  • Easements: Right of way – parking – loading and unloading.
  • Landlord and tenant general: Consent in leases – reasonableness; Equitable relief from forfeiture – licence and possessory rights; Company Voluntary Arrangement – impact on terms of lease; Relief from forfeiture – rent – time limit.
  • Long Leases: Service Charges - construction of a lease - liquidation of management company; Collective Enfranchisement – initial notices – was a flat a dwelling; Service Charges – heating systems on adjoining estates.
  • Planning: Inspector – assumptions; CIL - surcharge; CIL – Liability Notice; Outbuilding – Permitted Development; Solar Panels – material consideration
  • Property Transactions: Sale of land – fixtures - fish stocks – solar panels; Sale contract - s2 Law of Property (Miscellaneous Provisions) Act 1989 – email signatures; Conditional sale contract - contract variations and jurisdiction of expert
  • Public access: Definitive maps and statements – sufficiency of evidence for order adding rights of way
  • Residential Tenancies: Electrical Regulations – Commencement Order
  • Solicitors Practice Points: SRA Standards and Regulations; Land Registry Practice

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Mediation

If you would like to make arrangements for me to mediate a property dispute please contact my assistant Rosie Torre (rosie@thepropertymediators.co.uk). I am a member of the specialist property mediation service at The Property Mediators. My full mediator profile together with those of my mediator colleagues are here.

Training

For details of property law training courses run by Property Law UK editors go to in-house courses page of the website.

The next update will be in the middle of February.

Seasons greetings and happy new year!

Gary Webber
12 December 2019

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Easements

Right of way – Parking – loading and unloading – interim injunction

Thurloe Lodge Limited v Amberwood Drive Limited
[2019] EWHC 2877 (Ch)

The Claimant successfully sought an interim injunction against the Defendants preventing the Defendants from interfering with the Claimant’s right of way. There was an express right to pass and re-pass over a road, but the Judge found it arguable that this could include a right to stop on the road for the purposes of loading and unloading.


Landlord and Tenant (general)

There are four cases this month, two from the Supreme Court:
  • Whether a landlord was reasonable in withholding consent to an application for change of use?
  • To what extent, in the context of land, is equitable relief available for forfeiture of property and possessory rights.
  • Whether or to what extent will a CVA compromise a landlord’s rights?
  • Relief from forfeiture – rent – time limit.

Consent in leases - Reasonableness

Sequent Nominees Ltd (formerly Rotrust) v Hautford Ltd
[2019] UKSC 47

By a 3:2 majority the Supreme Court has held that a landlord was reasonable in withholding its consent to the tenant making a planning application for change of use, as required under the lease, where such change would significantly enhance the tenant’s enfranchisement prospects.

Equitable relief from forfeiture - Licence and possessory rights

The Manchester Ship Canal Company Ltd v Vauxhall Motors Ltd
[2019] UKSC 46

The Supreme Court held that in the context of land, equitable relief is not only available for forfeiture of property rights, it can be granted for forfeiture of possessory rights

Company Voluntary Arrangement - Impact on terms of lease

Discovery (Northampton) Ltd v Debenhams Retail Ltd
[2019] EWHC 2441 (Ch)

A CVA cannot compromise a landlord’s right to forfeit, but future rent and other future liabilities under a lease can in principle be compromised by a tenant’s CVA even if the tenant continues to trade from the premises.

Forfeiture - Time limit

Timbo v The Mayor and Burgess of the London Borough of Lambeth
[2019] EWHC 1396 (Ch)

In a claim for relief from forfeiture the High Court refused to order relief where there was no good reason for delay beyond 6 months from re-entry, whether this resulted in a windfall for the landlord was irrelevant to the question of promptness.


Long Leases

There are three cases this month:
  • Whether service charges were payable on liquidation of management company?
  • Whether flats in the process of construction amounted to a separate set of premises for the purposes of s101 of the Leasehold Reform, Housing and Urban Development Act 1993?
  • Whether, in the context of service charges, costs incurred replacing pipes on one estate were costs “incidental” to the provision of services on another?

Service Charges - Effect of liquidation of management company - construction of lease

Adriatic Land 1 (GR3) Limited v Miller
[2019] UKUT 344 (LC)

On an appeal against a determination of the First-Tier Tribunal (FTT) as to the reasonableness and pay-ability of service charges, the Upper Tribunal found that the FTT had erred in its construction of the residential leases. Where a Management Company went into liquidation, the leases provided for the freeholder to carry out the relevant services and recover the costs from the tenants. There was no ambiguity in the leases that justified the FTT’s decision.


Collective enfranchisement - Was a flat a dwelling?

Aldford House Freehold Ltd v Grosvenor (Mayfair) Estate & K Group Holdings Inc
[2019] EWCA Civ 1848

Flats in the process of construction had each amounted to a separate set of premises for the purposes of s101 of the Leasehold Reform, Housing and Urban Development Act 1993, but had not reached the stage of being constructed or adapted for use for the purposes of a dwelling. Accordingly, the Initial Notices had been served by the requisite majority of qualifying tenants.

Service Charges - Heating systems on adjoining estates - costs “incidental”

London Borough of Southwark v Royce
[2019] UKUT 331 (LC)

The First Tier Tribunal had been entitled to reach the conclusions it had as to the degree of separation between two heating systems on adjoining estates. On that basis, the interpretation they had reached of the service charge provisions in the relevant leases was correct, as costs incurred replacing pipes on one estate were not costs “incidental” to the provision of services on the other.


Planning

There are five cases this month
  • Whether an Inspector was required to make assumptions
  • Whether a CIL surcharge was payable
  • Whether a CIL Liability Notice complied with the regulations
  • Whether an outbuilding qualified as Permitted Development
  • Whether the potential impact on solar panels was a material consideration

Air Quality - Assumptions

Gladman v Secretary of State for Communities and Local Government
[2019] EWCA Civ 1543

A planning inspector was entitled to make his decision on the basis of the evidence before him as to air quality impact and was not required to make assumptions or speculate about the effect on local air quality of undecided government measures concerning air quality.

Community Infrastructure Levy - Surcharge

Planning Inspectorate Appeal Decision: APP/P3610/L/19/1200266 - (20 August 2019)
Appeal against a surcharge issued by Epsom & Ewell Borough Council


The Inspector dismissed an appeal against a surcharge levied by the Council for failure to submit a Commencement Notice before works started on development chargeable under the Community Infrastructure Levy.

Community Infrastructure Levy - Liability Notice

Planning Inspectorate Appeal Decision: APP/ D1590/L/19/1200255 (8 October 2019)
Appeal against CIL surcharges imposed by Southend on Sea Borough Council


A Community Infrastructure Levy (“CIL”) Liability Notice sent five months after planning permission granted was not sent “as soon as reasonably practicable” did not meet regulation 65(1) of the CIL Regulations 2010.

Permitted Development Rights - Ancillary or incidental to dwelling

Planning Inspectorate Appeal Decision: APP/T0355/W/19/3229741 (29 August 2019)
Appeal against refusal of planning permission by the Council of the Royal Borough of Windsor and Maidenhead


Consideration of whether an outbuilding was ancillary or incidental to a dwelling house; secondarily whether inappropriate development in the Green Belt; thirdly whether personal circumstances of residents affected the conclusion reached.

Material considerations - Solar Panels

William Ellis McLennan vs Medway Council and Ken Kennedy
[2019] EWHC 1738 (Admin)

The local planning authority erred in refusing to consider as material the effects of a development on a neighbours’ ability to generate electricity from solar panels. The interference with these solar panels, and the consequent effect on their ability to mitigate climate change, even slightly, was a material consideration capable of attracting weight in the decision taken.


Property transactions

Relief from sanctions – All the circumstances – Landlord and tenant dispute

There are three cases this month
  • Whether fish stocks in a commercial fishery passed on a sale of land?
  • Whether the requirements of s2 of the Law of Property (Miscellaneous Provisions) Act were satisfied by a string of emails signed with a solicitor’s email signature?
  • Whether a statement for the purpose of an expert determination satisfied the requirements of the overriding contract?

Sale of land – Fixtures – fish stocks – solar panels

Borwick Development Solutions Ltd v Clear Water Fisheries Ltd
[2019] EWHC 2272 (Ch)

Fish stocks in a commercial fishery did not pass on a sale of the land on which they were situated. Solar panels were fixtures, which passed automatically on the sale of the land to which they were attached, in the particular circumstances of the case, having regard not only to the degree but also to the purpose of the annexation.

Sale contract - Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989

Neocleous v Rees
[2019] EWHC 2462 (Ch)

The Court held that a binding contract for the disposition of land, satisfying s2 of the Law of Property (Miscellaneous Provisions) Act 1989, could be formed by a string of emails signed with a solicitor’s email signature.

Conditional sale contract - Contract variations and jurisdiction of expert

Great Dunmow Estates Limited v Crest Nicholson Operations Limited
[2019] EWCA Civ 1683

A statement agreed between the parties for the purpose of an expert determination did not satisfy the requirements of the overriding contract for variations to it and so the parties’ agreement on the valuation date was not effective. The Court of Appeal also held, albeit obiter, that a valuer acting as an expert did not have exclusive jurisdiction to determine matters other than the valuation figure.


Public access

Definitive maps and statements - Sufficiency of evidence for order adding rights of way

R (on the application of Roxlena Ltd) v Cumbria County Council
[2019] EWCA Civ 1639

The Court of Appeal dismissed a landowner’s appeal from Kerr J’s order of 30 November 2017 dismissing its claim for judicial review of the Council’s decision of 4 January 2017 to modify the definitive map and statement to add 34 footpaths and extend a bridleway over the landowner’s land.


Solicitors Practice Points

Landlord and Tenant - Regulations

Housing and Planning Act 2016 (Commencement No. 11) Regulations 2019/1359

The commencement regulations bring into force s.122 and s.123 of the Housing and Planning Act 2016 as of 25 October 2019. The Secretary of State may, as of that date, make regulations for electrical standards in private rented dwellings including requirements as to certification and the imposition of financial penalties.


Solicitors Practice Points

There are two points this month
  • The 2019 SRA Standards & Regulations which came into force on 25 November 2019
  • Land Registry has updated Practice Guide 12



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