Secretary of State for the Environment, Food and Rural Affairs v Meier and others
Citation: [2009] All ER (D) 16 (Dec)
Alternative Citations: [2009] UKSC 11
Hearing Date: 1 December 2009
Court: Supreme Court
Judge: Lord Rodger, Lord Walker, Lady Hale, Lord Collins SCJJ and Lord Neuberger
Representation: John Hobson QC and John Clargo (instructed by Whitehead Vizard, Salisbury) for the Secretary of State. Richard Drabble QC and Marc Willers (instructed by Community Law Partnership, Birmingham) for the defendants.
Abstract: Land - Summary proceedings for possession. The Supreme Court held that a court had no power to grant an order for possession, in favour of a claimant, in respect of land not yet occupied or possessed by a defendant, even in circumstances in which it was found that the Drury criterion (see Drury v Secretary of State for the Environment, Food and Rural Affairs[2004] 2 All ER 1056) was satisfied, and that the decision whether an injunction should be granted restraining a defendant from trespassing on such land would have to turn on the facts of each individual case. The Court also commented that there might be a need to reform the remedies currently available in the area of law at issue in the instant case.
Keywords: Land - Summary proceedings for possession - Extent of court's jurisdiction - Persons unlawfully occupying woodland - Possession order being obtained against unlawful occupiers in respect of woodland unlawfully occupied by them - Court finding real danger of decampment to other sites - Court refusing wider possession order in respect of other sites - Judge refusing injunction in respect of other sites - Whether court having power to make wider possession order where real danger of decampment established - Whether remedy of injunction available.
Summary: The judgment is available at: [2009] UKSC 11
In January 2007, the defendants, who were new travellers, established an unauthorised camp in one of the woods managed by the Forestry Commission (the Commission), namely Hethfelton Wood, near Wool in Dorset. The defendants lived and travelled in motor vehicles, mostly with children and often with animals. In May, the claimant Secretary of State applied for a possession order in relation to Hethfelton, for a possession order in relation to other areas of nearby woodland managed by the Commission (a wider order for possession) and for an injunction preventing the defendants from entering or occupying those other woodlands. The recorder who heard the applications considered two particular matters: (i) government guidance (issued in 2004, entitled 'Guidance on Managing Unauthorised Camping') which stated that unauthorised encampments were almost always unlawful, but that such encampments would continue while there were insufficient authorised sites (the guidance); and (ii) the criterion for whether an order for possession of land which extended to other land owned by the same claimant could be made, namely an expression of an intention to decamp to the other area or a history of movement between the two areas from which a real danger of repetition could be inferred or such propinquity and similarity between the two areas as to command the inference of a real danger of decampment from one to another, was satisfied (the Drury criterion; see Drury v Secretary of State for the Environment, Food and Rural Affairs[2004] 2 All ER 1056).
The recorder decided to grant an order for possession against the defendants in respect of Hethfelton, but refused to make a wider order for possession, or to grant the injunction sought. The recorder made two observations: (i) that the Commission had failed to consider matters suggested by the guidance before it had decided to make its applications; and (ii) the Commission's reluctance to ensure that it would give consideration to the guidance before any wider order for possession or any injunction was enforced. The defendants did not appeal against the order for possession. The Secretary of State appealed against the refusal to grant the wider order for possession and the injunction, submitting, inter alia, that the recorder had had no discretion to refuse once he had concluded that the Drury criterion was satisfied. The Court of Appeal decided in the Secretary of State's favour in respect of both refusal decisions. It was ordered that the Secretary of State 'do recover' the other woods, and that each of the defendants 'be restrained from entering upon, trespassing upon, living on, or occupying' the other woods. The defendants appealed to the Supreme Court.
It fell to be determined, first, whether a court could grant an order for possession in respect of land not yet occupied or possessed by a defendant, and, secondly, whether a court should grant an injunction restraining a defendant from trespassing on such land. It was conceded, by the Secretary of State, that the Commission was obliged to comply with the guidance, and that failure to do so might vitiate the Commission's right to possession against travellers trespassing on land which it managed.
The appeal would be allowed in part.
(1) A court had no power to grant an order for possession in respect of land not yet occupied or possessed by a defendant, even in circumstances in which it was found that the Drury criterion was satisfied (see [78] of the judgment).
There was no legitimate basis for making a wider or precautionary order for possession; if there was, it would require a defendant to do something which he could not do, namely to deliver up possession of land he did not occupy, and would purport a return to a claimant something which he had not lost, namely possession of land of which already he had possession. Not only would it be inconsistent with the nature of a possession order, it would be inconsistent with the relevant provisions governing the powers of the court, were a power to order recovery of wholly distinct land, of which a defendant was not in possession of, to exist. In addition, the concept of occupying part of property, the remainder of which was vacant, effectively in the name of the whole, could not be extended to apply to land which was wholly distinct, even miles away, from land that was being occupied. The law would also be harmed rather than improved if a court were able to grant orders which lay defendants, knowing the facts, would rightly find incomprehensible (see [12], [20], [64], [67], [74], [78] and [96] of the judgment).
The Court of Appeal had been wrong, in the instant case, to grant to the Secretary of State a wider order for possession (see [19], [20], [41], [67], [95] and [98] of the judgment).
Drury v Secretary of State for the Environment, Food and Rural Affairs [2004] 2 All ER 1056 explained; University of Essex v Djemal [1980] 2 All ER 742 considered.
(2) The decision whether an injunction should be granted restraining a defendant from trespassing on land with which s/he was not in possession or occupation of would have to turn on the facts of each individual case. Where a trespass to property was threatened, and particularly where a trespass was being committed, and had been committed in the past, an injunction to restrain the threatened trespass (or continuing trespass) would, in the absence of good reasons to the contrary, be appropriate (see [79] of the judgment).
The Court of Appeal's decision to grant an injunction, in the instant case, could not be impugned. It could not be said that the Court was plainly wrong in granting the injunction in favour of the Secretary of State, or that it had made an error of principle in the reasoning which had led to its grant. In addition, even if assuming (in accordance with the Secretary of State's concession) that the Commission's failure to comply with the guidance might deter the making of an order for possession against travellers, it ought not to preclude the grant of an injunction to restrain travellers from trespassing on other land (see [3], [16], [17], [20], [39], [79], [83], [84], [87], [91] and [95]-[98] of the judgment).
Accordingly, the injunction would stand.
South Bucks District Council v Porter, Chichester District Council v Searle, Wrexham County Borough Council v Berry [2003] 3 All ER 1 considered.
Per curiam (Per Lord Rodger, Lady Hale and Lord Neuberger): Consideration may have to be given by the Master of the Rolls and the Civil Procedure Rules Committee to the current lack of an effective remedy or remedies available to a claimant where there is, or has been, a trespass, by a defendant, to land to which the defendant neither possesses nor occupies (see [17], [18], [40] and [94] of the judgment).
Decision of Court of Appeal [2008] All ER (D) 418 (Jul); reversed in part.
Barrister: Robert Chan
Published Date: 01/12/2009
R (on the application of Metro Construction Ltd) v Barnet London Borough Council
Citation: [2009] All ER (D) 266 (Nov)
Alternative Citations: [2009] EWHC 2956 (Admin)
Hearing Date: 25 November 2009
Court: Queen's Bench Division, Administrative Court (London)
Judge: Collins J
Representation: Robert Griffiths QC and James Strachan (instructed by Pinsent Masons LLP) for the claimant. Robert McCracken QC and Jeremy Phillips (instructed by London Borough of Barnet, Legal Services) for the authority.
Abstract: Town and country planning - Conservation area. The Administrative Court held, in allowing the claimant's application for judicial review: (i) that the word 'solely', in the last sentence of paragraph 3.14 of the guidelines on the management of conservation areas, governed both the alternatives which followed it, and was not limited to the first alternative only; and (ii) that in the instant case the defendant local authority's decision to designate the site in question as a conservation area was unlawful.
Keywords: Town and country planning - Conservation area - Control of demolition - Guidance on management of conservation areas - Situations when demolition not permitted - Claimant seeking to develop site with monastery building for residential use - Defendant local authority designating site as conservation area - Claimant arguing designation unlawful by reason of authority's objective to control demolition of monastery - Whether designation lawful - Meaning of sentence in guidance concerning when demolition should not be undertaken - Town and Country Planning Act 1990, section 55(1A) - Planning (Listed Buildings and Conservation Areas) Act 1990, sections 1, 3, 69.
Summary: The judgment is available at: [2009] EWHC 2956 (Admin)
In September 2007, the claimant company purchased a 2.5 acre area of land in the northwest of London upon which was situated, at the point of sale, a defunct Carmelite monastery (the site). In December, the claimant applied for planning permission to develop the site for residential use. The defendant local authority was concerned that the monastery might be demolished, notwithstanding that it had been included in the 'local list'. Regard was given to: (i) the relevant unitary development plan, which sought to provide some protection for locally listed buildings (see [4] of the judgment); (ii) chapter 4 of Planning Policy Guidance 15: Planning and the Historic Environment, which dealt with conservation areas (see [6] and [8] of the judgment); and (iii) two sets of guidelines, one relating to conservation area appraisals, the other to the management of conservation areas (the management guidance) (see [9] and [10] of the judgment). The management guidance provided, so far as material, at paragraph 3.14: 'Whilst designation can be a legitimate response to an actual or perceived threat to the character of an area, the first consideration should always be whether the area is of sufficient special interest to warrant designation, rather than whether designation would provide an additional control. Designation should never be undertaken solely in response to local pressure, or to bring the future of particular unlisted buildings under control.' In the event, the authority sought to persuade the Secretary of State to list the monastery as a 'building of special architectural or historic interest' under section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the 1990 Act). The authority decided to act pursuant to section 3 of the 1990 Act; serving a 'building preservation notice' for the purposes of achieving a temporary listing. Thereafter, the claimant obtained a report from professional heritage consultants, who concluded, inter alia, that the inclusion of the monastery on the local list, but not the statutory list, was appropriate. English Heritage reached the same conclusion. In June 2008, the Secretary of State, acting on the advice of English Heritage, and that of the relevant government adviser, decided not to list the monastery. A month later, the claimant notified the authority of its intention to demolish the monastery building.
The authority's response was that if demolition went ahead it had to be subject to conditions. In the meantime, the authority had been pursuing the designation of the site as a conservation area. The claimant argued that such designation would be an unlawful use of section 69 of the 1990 Act, of which, by virtue of subsection 2, a duty was placed on local authorities to 'from time to time... review the past exercise of functions... and to determine whether any parts or any further parts of their area should be designated as conservation areas; and, if they so determine, they shall designate those parts accordingly'. On 23 October, the authority decided, by way of a meeting of its Cabinet, to designate the site as a conservation area. The claimant applied for judicial review of that decision. It was common knowledge that shortly before the Cabinet had made its decision, the claimant was granted planning permission for 'the retention and adaptation of the monastery and the construction of houses in the garden'.
The principal issue was whether the decision to designate was an unlawful one/whether the judgment of the Cabinet was based on a lawful approach. A sub-issue arose as to the meaning of the last sentence of paragraph 3.14 of the management guidance, but, in particular, whether the word 'solely' in that sentence governed both the alternatives which followed it or whether it was limited to the first alternative only.
The application would be allowed.
(1) The word 'solely', in the last sentence of paragraph 3.14 of the management guidance, governed both the alternatives which followed it; it was not to be limited to the first alternative only by reason of the fact that the two alternatives were separated by a comma (see [10] of the judgment).
It was clear that the alternative of 'the future of unlisted buildings' might be a relevant consideration if such a building provided a material contribution to an area which was worthy of designation and which would be harmed if there was to be demolition of the same. It was apparent that the desire to protect unlisted buildings, and, a fortiori, a single unlisted building, could not justify a designation unless there was an area to which that building or buildings made a real contribution. Hence, if the motive for designation was to protect an unlisted building, that would suggest that the statutory powers were being used for a wrong purpose, and, as such, the planning authority had to show a clear justification for the designation (see [10] of the judgment).
(2) In the instant case, the only reason for the designation was to save the monastery building from demolition. That was an unlawful approach, notwithstanding that the site might have been capable of designation as a conservation area. In essence, the designation was no more than an attempt by the authority to achieve what the refusal to list had frustrated. The site could not properly be regarded as forming a conservation area. Even if in the end designation was supportable, the manner in which the authority had reached its decision to designate was unlawful since the purpose of the designation was unlawful. For those reasons, the designation had to be quashed (see [28], [31], [32], [37], [39] and [41] of the judgment).
Order accordingly.
R (on the application of Arndale Properties Ltd) v Worcester City Council [2008] All ER (D) 192 (Mar) considered.
Per curiam: Buildings of national importance (which may in some cases be examples of buildings important locally which are found only in a particular area) are listed and cannot be adapted or demolished unless specific permission is obtained. Locally listed buildings do not have that protection. They cannot be adapted, at least if their outward appearance is changed, because that would amount to development, but, unless dwelling houses, they can be demolished. This may be undesirable; consideration may have to be given to granting them some degree of protection by not excluding them from section 55(1A) of the Town and Country Planning Act 1990 (on the meaning of 'building operations') (see [33] of the judgment).
Barrister: Robert Chan
Published Date: 25/11/2009
Legislation
Perpetuities and Accumulations Act 2009 (Commencement) Order 2010
LNB News 15/01/2010 25
Published Date: 15 January 2010
Jurisdiction: England; Wales
Enactment Citation: SI 2010/37
Enabling Power: Perpetuities and Accumulations Act 2009, section 22(2)
Abstract: SI 2010/37: Perpetuities and Accumulations Act 2009 which modernises and simplifies the law on leaving property in trust, will come fully into force on 6 April 2010
Summary: Brings into force on 6 April 2010, the Perpetuities and Accumulations Act 2009, 1-21, schedule. The rest of the Act, namely sections 22 to 24, came into force on Royal Assent.
Non-Domestic Rating (Rural Settlements) (England) (Amendment) Order 2009
LNB News 10/12/2009 27
Published Date: 10 December 2009
Jurisdiction: England
Enactment Citation: SI 2009/3176
Commencement date: 1 April 2010
Legislation Affected: SI 1997/2792 amended
Enabling Power: Local Government Finance Act 1988, sections 43(6B), 47(3A)(b)
Abstract: SI 2009/3176: Rateable value thresholds for rural rate relief increased
Summary: Increase the rateable value thresholds for rural rate relief above which those hereditaments to which the relief would otherwise apply will not be eligible for the relief. For mandatory relief, they increase: from £7,000 to £8,500 the rateable value limit for a sole shop, general store or post office situated in a designated rural area; and from £10,500 to £12,500 the rateable value limit for a sole public house or petrol station situated in a designated rural area. The rateable value limit for discretionary rate relief for hereditaments situated in a designated rural area is increased from £14,000 to £16,500
Non-Domestic Rating (Small Business Rate Relief) (England) (Amendment) (No 2) Order 2009
LNB News 10/12/2009 71
Published Date: 10 December 2009
Jurisdiction: England
Enactment Citation: SI 2009/3175
Commencement date: 1 April 2010
Legislation Affected: SI 2004/3315 amended
Enabling Power: Local Government Finance Act 1988, sections 43(4B)(a)(ii), (iii), (4C), 143(1), (2)
Abstract: SI 2009/3175: Ratepayer's entitlement to small business rate relief increased from 1 April 2010
Summary: Increases a ratepayer's entitlement to small business rate relief (SBRR) and the amount of relief to take account of changes to rateable values of hereditaments from 1 April 2010 as a result of revaluation. Increases the rateable value thresholds, which apply when determining the amount for the purposes of the formula used when a ratepayer is entitled to SBRR. The rateable value threshold for entitlement to the higher rate of relief is being increased from £5,000 to £6,000 and for the lower rate of relief, from £10,000 to £12,000.
Makes further amendments so ratepayers will not have to reapply between revaluations as long as they meet the conditions for eligibility for SBRR, which apply at the beginning of the new valuation period. The ratepayer need not make a fresh application for the new valuation period.
Ensures where a ratepayer is receiving relief in respect of a hereditament prior to 1 April 2010 and on 1 April 2010 the rateable value of that hereditament increases, as long as the rateable value does not increase above the new, higher thresholds the ratepayer will continue to be eligible for relief, although the amount of relief may change as a result.
Non-Domestic Rating Contributions (England) (Amendment) Regulations 2009
LNB News 02/12/2009 17
Published Date: 2 December 2009
Jurisdiction: England
Enactment Citation: SI 2009/3095
Commencement date: 31 December 2009
Legislation Affected: SI 1992/3082 amended
Enabling Power: Local Government Finance Act 1988, sections 143(1), (2), schedule 8, paragraphs 4, 6
Abstract: SI 2009/3095: Amount local authorities must pay into national pool for business rates amended
Summary: Amend the Non-Domestic Rating (Contributions) (England) Regulations 1992, SI 1992/3082. Change the amount that an English local authority must pay in each year into the national non-domestic rating pool, which is administered by the Secretary of State for Communities and Local Government. Take effect for financial years from 1 April 2010
Journals
Showing Interest
LNB News 21/12/2009 14
Published Date: 21 December 2009
Author: Mark Pawlowski
Journal Name: Trusts and Estates Law & Tax Journal
Journal Date: 1 November 2009
Journal Citation: Trusts and Estates Law & Tax Journal, November 2009, 4
Jurisdiction: England; Wales
Related Cases: Jones v Kernott [2009] EWHC 1713 (Ch), [2009] All ER (D) 123 (Jul)
Abstract: Trusts and Estates Law & Tax Journal, November 2009: To what extent may the court impose its own sense of justice when determining parties' beneficial ownership of the family home?
Summary: Considers a recent High Court ruling on the assessment of beneficial shares in the family home. The case of Jones v Kernott has confirmed that a court can attribute to co-owners of a home an intention to vary their beneficial interests that they had not actually expressed to each other. The court can also impute to them an adjustment that would be fair and reasonable.
Property/Landlord & Tenant: Contracting Out
LNB News 11/12/2009 80
Published Date: 11 December 2009
Author: Philip Sissons
Journal Name: New Law Journal
Journal Date: 11 December 2009
Journal Citation: 159 NLJ 1725
Jurisdiction: England; Wales
Related Legislation: Landlord and Tenant Act 1954
Related Cases: Newham v Van Staden [2008] EWCA Civ 1414, [2009] All ER (D) 131 (Apr)
Abstract: New Law Journal, 11 December 2009: How a recent case has potentially wide-reaching consequences for agreements purporting to exclude the Landlord and Tenant Act
Summary: Examines the effect of the decision in Newham v Van Staden. The effect of the Landlord and Tenant Act 1954 can be excluded by agreement between the parties, provided certain statutory requirements are met. The decision in Newham v Van Staden is of potentially wide-reaching effect in determining when an agreement which purports to exclude LTA 1954 will be effective.
www.newlawjournal.co.uk: Contracting Out
VAT and Commercial Property
LNB News 24/11/2009 40
Published Date: 24 November 2009
Author: Gary Barnett
Journal Name: Tax Journal
Journal Date: 23 November 2009
Journal Citation: Tax Journal, Issue 1006, 13
Jurisdiction: England; Scotland; Northern Ireland; Wales
Abstract: Tax Journal, 23 November 2009: How the basic rules for the VAT treatment of property are applied in commonly encountered commercial property transactions
Summary: The latest in a series of basic informative articles follows looks at the VAT treatment of some common commercial property transactions. The grant or assignment of a lease or a licence to occupy a commercial building in consideration of rent or a premium from the tenant/licensee will generally be an exempt supply, unless the landlord has opted to tax the property. The grant of a lease exceeding 21 years is a supply of goods, whereas the grant of a shorter lease will be a supply of services.
Property: Searching Questions
LNB News 22/11/2009 30
Published Date: 22 November 2009
Author: Andrew Stenning
Journal Name: New Law Journal
Journal Date: 20 November 2009
Journal Citation: 159 NLJ 1616
Jurisdiction: England; Wales
Abstract: New Law Journal, Issue 7394: Have Home Information Packs worked?
Summary: Looks at whether Home Information Packs (HIPs) have succeeded in speeding up the conveyancing process. There have been some calls in the past to scrap HIPs. However, a recent poll has been commissioned with over 175 housing industry professionals, which included mortgage lenders, estate agents and property investors who said that they were in favour of HIPs.
Property: Beyond Repair?
LNB News 22/11/2009 31
Published Date: 22 November 2009
Author: Sam Cherry
Journal Name: New Law Journal
Journal Date: 20 November 2009
Journal Citation: 159 NLJ 1614
Jurisdiction: England; Wales
Related Cases: Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley Warwickshire v Wallbank [2007] All ER (D) 50 (Feb)
Abstract: New Law Journal, Issue 7394: How does chancel repair liability affect the modern day conveyancer?
Summary: Looks at what can be learned from the Wallbank case with regard to chancel repair liability. It is up to the conveyancer to decide whether it is appropriate to check for chancel repair liability. But with the increased activity from the church in terms of registration the question arises of whether it is worth taking the risk of either ignoring the matter or putting in place insurance that doesn't comply with their recommendations.
Property: Expensive Mistakes
LNB News 22/11/2009 32
Published Date: 22 November 2009
Author: Katherine Rees
Journal Name: New Law Journal
Journal Date: 20 November 2009
Journal Citation: 159 NLJ 1611
Jurisdiction: England; Wales
Abstract: New Law Journal, Issue 7394: How undertakings, overage clauses and the 'exclusionary rule' continue to be problematic in property transactions
Summary: Examines risks arising from property transactions, focusing on undertakings, overage clauses and the 'exclusionary rule'. There has been a spate of recent decisions about undertakings, focusing on the unwelcome consequences for solicitors who acted for sellers and who gave routine undertakings to discharge charges on completion, but failed to obtain redemption figures. Although the solicitors in these matters raised a variety of ingenious arguments, the message from the court was consistent.
Articles
Mortgage Defaulters Supported in 2009 but Repossession Levels Uncertain for 2010
LNB News 05/01/2010 7
Published Date: 5 January 2010
Jurisdiction: UK
Related Legislation: Law of Property Act 1925; Administration of Justice Act 1985
Related Cases: Horsham Properties Group Ltd v Clark and another [2008] EWHC 2327 (Ch), [2008] All ER (D) 58 (Oct)
Related Digests: Press Release: New Mortgage Instructions LNB News 14/12/2009 27; Report: Turning the Tide?, LNB News 05/01/2010 3; Repossession and Social Housing Warning in UK Housing Review 2009/10, LNB News 05/01/2010 4
Abstract: Since 1 January 2010 new voluntary mortgage instructions have been made available by the BSA. Greg Bousfield talks to Victoria Barnard, mortgage policy advisor with the BSA about how lenders are working with mortgage defaulters to find alternatives to repossession and not rushing to repossess
Analysis: A report published in December 2009 by Shelter/CAB, Turning the Tide? (the Report), claims about one third of lenders do not go through pre-action protocols and offer mortgage defaulters more options before repossession. The Report accuses the courts of complicity in hasty repossessions as judges are only applying sanctions in a minority of cases against lenders for sidestepping pre-action protocols. Sub-prime lenders are particularly going to court early, the Report says.
The Report is based on information from 452 people who sought advice from court duty desks run by AdviceUK members, CAB and Shelter at 65 county courts in England during July 2009, and lists of scheduled mortgage/secured loan possession hearings by their courts in July 2009, which identify the lender taking action. Lists were collected from 52 county courts in England, containing 2444 cases.
"Only a small proportion of lenders are not complying with the protocol; this does not reflect the actions of the majority of lenders, including building societies," Victoria Barnard, mortgage policy advisor with the Building Society Association says. "The majority of lenders will work closely with their customers to agree suitable payment plans to help them avoid losing their home (forbearance).
"Our research shows of the customers surveyed 97 % managed to work with their lender to avoid repossession. This research was based on all UK lenders not just building societies. Certainly in the building society sector repossession really is a last resort and action will only be taken once all other options have been considered."
Law of Property Act 1925 (LPA) receivers are primarily used for buy-to-let (BTL) properties, she says. "It is very unusual for a lender to take possession of an owner-occupied property via this route."
LPA repossessions were found to be HRA-compliant in 2008 after a High Court ruling, in Horsham Properties Group Ltd v Clark [2008] All ER (D) 58 (Oct) against two defaulting mortgage holders living in their own BTL property. The lender sold the property to a buyer who then issued trespass proceedings to obtain possession pursuant to the LPA rather than applying for court repossession under the Administration of Justice Act 1985 (AJA). Housing NGOs feared a jump in such repossessions but little data is available on trends.
Barnard says voluntary possessions where the customer hands the keys back to the lender have increased. "In these instances the lender will not necessarily seek a court order to take possession and instead will take possession under the power of sale in the mortgage deed."
The Report says job loss was the most common reason given by borrowers for falling into arrears and low income households were most likely to have their houses repossessed. Shelter says while the government's Support for Mortgage Interest (SMI) benefit scheme could help support this category of borrower many paid higher interest rates than those covered by SMI and there was evidence borrowers were not making use of the scheme.
The BSA co-authored UK Housing Review 2009/10 published 17 December 2009 says the number of repossessions was lower in 2009 than the peak of 76,000 in 1991 but the outlook for 2010 remains uncertain.
Landlords May Now Add Clauses Stopping VAs in Lease Agreements
LNB News 18/12/2009 72
Published Date: 18 December 2009
Jurisdiction: UK
Related Legislation: Law of Property Act 1925
Related Cases: Akici v LR Butlin Ltd [2005] EWCA Civ 1296, [2005] All ER (D) 22 (Nov); Clarence House Ltd v National Westminster Bank plc [2009] EWHC 77 (Ch), [2009] 3 All ER 175; Clarence House Ltd v National Westminster Bank plc [2009] EWCA Civ 1311, [2009] All ER (D) 70 (Dec)
Related Digests: Property/Landlord & Tenant: Virtually No Chance? LNB News 26/10/2009 39
Abstract: The decision in Clarence House v Natwest where a VA breached the covenant not to share or part with possession was overturned 8 December 2009. Duncan Wood talks with Simon Brilliant (a barrister at Lamb Chambers), James Knox (a partner at Linklaters) and Penny McClaren (an associate at Linklaters) about the health of the VA
Analysis: Declarations about the end of virtual assignments (VAs) following the Clarence House v Natwest [2009] 3 All ER 175 judgment from January 2009 seem to have been premature. "This is not the death knell for virtual assignments--they are alive and kicking," declares Simon Brilliant, barrister at Lamb Chambers and counsel for Natwest in the court of first instance. "The original decision was problematic because it implied any VA out of the thousands in existence would have amounted to breach of lease. But what we may see now is landlords going out of their way to stop them happening, such as putting in clauses in standard lease agreements which basically stipulate the tenant not to enter into virtual assignments."
James Knox, a partner at Linklaters, disagrees and argues landlords have nothing to fear from their tenants entering into VAs: "They don't affect the landlord and tenant relationship; the landlord doesn't lose any rights nor is his or her investment prejudiced. VAs have been around for over ten years and no landlord has ever tried to challenge one until now." The judgment's significance, Knox declares, lies in the fact it provides significant clarity on the meaning of 'possession' in the context of parting with or sharing of possession in leases. In the decision at first instance the judge applied a statutory definition of the word that includes receipt of rent. Their Lordships in the Court of Appeal followed the decision in Akici v LR Butlin Ltd[2005] EWCA Civ 1296, the meaning of 'possession' within the context of a landlord and tenant covenant should be given its usual and normal technical meaning, that is, it should denote the physical occupation of a property. "Possession, in this context, should not be distinguished from occupation," points out Penny McLaren, associate at Linklaters. "They are different concepts but can be seen as synonymous in this situation. In the first instance the judge stretched the meaning of possession too far. In any event in the Natwestcase it could never be said Natwest, the virtual assignor, parted with possession. Natwest was never in possession--an undertenant, Mercers, was the occupier and person in possession throughout."
"The judge overlooked the opening words of the definition section 'unless the context otherwise requires' in the Law of Property Act 1925," remarks Simon Brilliant. "It is now clear the definition of 'possession' used by the trial judge just will not stand in the future."
What both Knox and Brilliant agree on, however, is the case is something of an anomaly and won't bring about the demise of the VA. "Banks as virtual assignors have never really stopped paying rent in the past and so haven't caused much of a problem. I can't imagine we will see any more cases being brought--this appeal has given virtual assignments a clean bill of health," says Brilliant. In the current economic climate the suggestion that VAs could be used as a mechanism to release struggling tenants from rent payments is dismissed by James Knox. "This is not the purpose of VAs. VAs are not as a rule driven by market conditions but occupy their own specific place--generally to meet accounting and occupation requirements of large occupiers."
Eco-Town Projects Limp Ahead as Recession Bites
LNB News 08/12/2009 28
Published Date: 8 December 2009
Jurisdiction: UK
Related Digests: Press Release: Experts Challenge Developers to Raise their Game on Eco-Towns
LNB News 19/05/2008 22; Consultation Paper: Eco-Towns - Allocations From the Eco-Towns Fund LNB News 18/08/2009 4
Abstract: As the government presses ahead with eco-town announcements about nine new schemes, questions remain over when such plans will become a reality. Richard George of the Campaign for Better Transport talks to Neasa MacErlean about progress
Analysis: The government announced extra funding and further interest in its eco-towns project on 1 December 2009 when housing minister John Healey said another £5 million would be made available and that five more areas were interested in the scheme. But the idea of eco-towns--first unveiled through the government's The Eco-town prospectus--is far more controversial than people outside the planning world might expect.
For a start, relatively little concrete has happened so far. "It's an interesting idea," says Richard George, roads and climate campaigner at the Campaign for Better Transport (formerly Transport 2000). "It depends how we implement the idea."
Under the prospectus and various other documents published by the Department for Communities and Local Government since, an eco-town is meant to include a minimum of 5000 homes, offer green transport and various zero-carbon facilities and consult widely with residents. But, so far, says George, the property developers rather than local authorities have been the most enthusiastic. "I would expect a lot of money would be coming from the developers who own the land," he says. "These are quite developer-driven."
The Campaign for Better Transport is concerned too many of the dozen or so sites currently being considered are away from existing conurbations. The Campaign for Better Transport believes it is "essential" an eco-town has a rail or light rail link if it is to encourage residents to use public transport rather than have their own vehicles. This is much easier to ensure, of course, for a development which is near existing train lines rather than for a development in the country, at some distance from train tracks. It would also cost much less to build a tram system, for instance, on the edge of an existing city so it could link in to the existing infrastructure rather than setting up many miles of track to connect up a more remote location. The costs per head of population would be lower if a new tram system could be used by residents of an existing town or city as well. "You would benefit the whole area," says George.
London would be an ideal location for an eco-town because of its strong tube, bus and rail network, according to the Campaign for Better Transport. But it is not yet part of an eco-town scheme.
Lincoln, Coventry and Leeds are among the latest local authorities to announce their interest through specific proposals. Projects are already established for Northstowe in Cambridgeshire and Shoreham Harbour in West Sussex.
The current economic climate has slowed down progress on the whole concept. "The recession has put a lot of obstacles in the way of developments," says George. But if they do get going over the next few years, eco-towns could have a major effect on all planning work, says George. "If these work, I would expect there to be challenges to other developments not built on eco-town principles," he says. "If you can show something can be done sustainably, there's no point in doing it non-sustainably."
Extensions for Possession Orders Need to Be Legitimate
LNB News 07/12/2009 29
Published Date: 7 December 2009
Jurisdiction: UK
Related Cases: Secretary of State for the Environment, Food and Rural Affairs v Meier and others [2009] UKSC 11, [2009] All ER (D) 16 (Dec)
Related Digests: Consultation Response: Response of Law Reform Committee to DCLG Consultation Paper on Tolerated Trespassers--Successor Landlords LNB News 09/01/2009 4
Abstract: The Supreme Court has ruled in Secretary of State for Environment etc v Meier courts cannot make a possession order for land not yet occupied by trespassers but can order an injunction to prohibit future occupation of other land. Malcolm Dowden, solicitor and LexisPSL property author tells Evelyn Reid why the Supreme Court has reversed the decision of the Court of Appeal
Analysis: In Secretary of State for Environment etc v Meier [2009] UKSC 11, [2009] All ER (D) 16 (Dec) the Supreme Court had to consider whether a court could grant a possession order for land not yet occupied by the defendant which would give the claimant the right to call on the bailiffs to remove her; and an injunction against feared trespass of other land which would impose penalties if she disobeyed the order.
Dowden, solicitor and LexisPSL property author, says: "The Court of Appeal considered it was permissible as an incremental development of the law to make a possession order in respect of land not yet occupied by the trespasser. The Supreme Court roundly rejected that view." Lord Neuberger observed the lower court had followed the reasoning in Secretary of State v Drury [2004] 2 All ER 1056 where it was held that an order for possession against trespassers, could in appropriate cases extend to land not forming part of or even near the land actually occupied by the trespassers. However, he said it is simply not possible to make that sort of enlarged or wider order for possession however desirable it is to fashion or develop a remedy to meet a particular problem. Judges are not legislators and in order to deal with a particular problem court rules and practice have to be changed by primary or secondary legislation not by the courts.
It makes no sense to make a possession order in those circumstances says Dowden. "Such an order would require the defendant to do something he could not do (namely, deliver up possession of land he did not occupy) and would purport a return to the claimant of something he had not lost (possession of the land). There is no legitimate basis for making a possession order in these circumstances."
The second issue was whether an injunction should be refused because it was unlikely to be enforced. The Court of Appeal had recognised the available remedy--a quia timet injunction--has serious shortcomings. It is a weak remedy where the trespassers have no significant assets to enforce against and committal to prison is unlikely. Dowden says that while their Lordships acknowledged those weaknesses, they advised that it should not be assumed an injunction is a worthless remedy and that only the intervention of a bailiff is likely to be effective. "An injunction would, in the absence of good reasons to the contrary, be appropriate."
Citation: [2009] All ER (D) 16 (Dec)
Alternative Citations: [2009] UKSC 11
Hearing Date: 1 December 2009
Court: Supreme Court
Judge: Lord Rodger, Lord Walker, Lady Hale, Lord Collins SCJJ and Lord Neuberger
Representation: John Hobson QC and John Clargo (instructed by Whitehead Vizard, Salisbury) for the Secretary of State. Richard Drabble QC and Marc Willers (instructed by Community Law Partnership, Birmingham) for the defendants.
Abstract: Land - Summary proceedings for possession. The Supreme Court held that a court had no power to grant an order for possession, in favour of a claimant, in respect of land not yet occupied or possessed by a defendant, even in circumstances in which it was found that the Drury criterion (see Drury v Secretary of State for the Environment, Food and Rural Affairs[2004] 2 All ER 1056) was satisfied, and that the decision whether an injunction should be granted restraining a defendant from trespassing on such land would have to turn on the facts of each individual case. The Court also commented that there might be a need to reform the remedies currently available in the area of law at issue in the instant case.
Keywords: Land - Summary proceedings for possession - Extent of court's jurisdiction - Persons unlawfully occupying woodland - Possession order being obtained against unlawful occupiers in respect of woodland unlawfully occupied by them - Court finding real danger of decampment to other sites - Court refusing wider possession order in respect of other sites - Judge refusing injunction in respect of other sites - Whether court having power to make wider possession order where real danger of decampment established - Whether remedy of injunction available.
Summary: The judgment is available at: [2009] UKSC 11
In January 2007, the defendants, who were new travellers, established an unauthorised camp in one of the woods managed by the Forestry Commission (the Commission), namely Hethfelton Wood, near Wool in Dorset. The defendants lived and travelled in motor vehicles, mostly with children and often with animals. In May, the claimant Secretary of State applied for a possession order in relation to Hethfelton, for a possession order in relation to other areas of nearby woodland managed by the Commission (a wider order for possession) and for an injunction preventing the defendants from entering or occupying those other woodlands. The recorder who heard the applications considered two particular matters: (i) government guidance (issued in 2004, entitled 'Guidance on Managing Unauthorised Camping') which stated that unauthorised encampments were almost always unlawful, but that such encampments would continue while there were insufficient authorised sites (the guidance); and (ii) the criterion for whether an order for possession of land which extended to other land owned by the same claimant could be made, namely an expression of an intention to decamp to the other area or a history of movement between the two areas from which a real danger of repetition could be inferred or such propinquity and similarity between the two areas as to command the inference of a real danger of decampment from one to another, was satisfied (the Drury criterion; see Drury v Secretary of State for the Environment, Food and Rural Affairs[2004] 2 All ER 1056).
The recorder decided to grant an order for possession against the defendants in respect of Hethfelton, but refused to make a wider order for possession, or to grant the injunction sought. The recorder made two observations: (i) that the Commission had failed to consider matters suggested by the guidance before it had decided to make its applications; and (ii) the Commission's reluctance to ensure that it would give consideration to the guidance before any wider order for possession or any injunction was enforced. The defendants did not appeal against the order for possession. The Secretary of State appealed against the refusal to grant the wider order for possession and the injunction, submitting, inter alia, that the recorder had had no discretion to refuse once he had concluded that the Drury criterion was satisfied. The Court of Appeal decided in the Secretary of State's favour in respect of both refusal decisions. It was ordered that the Secretary of State 'do recover' the other woods, and that each of the defendants 'be restrained from entering upon, trespassing upon, living on, or occupying' the other woods. The defendants appealed to the Supreme Court.
It fell to be determined, first, whether a court could grant an order for possession in respect of land not yet occupied or possessed by a defendant, and, secondly, whether a court should grant an injunction restraining a defendant from trespassing on such land. It was conceded, by the Secretary of State, that the Commission was obliged to comply with the guidance, and that failure to do so might vitiate the Commission's right to possession against travellers trespassing on land which it managed.
The appeal would be allowed in part.
(1) A court had no power to grant an order for possession in respect of land not yet occupied or possessed by a defendant, even in circumstances in which it was found that the Drury criterion was satisfied (see [78] of the judgment).
There was no legitimate basis for making a wider or precautionary order for possession; if there was, it would require a defendant to do something which he could not do, namely to deliver up possession of land he did not occupy, and would purport a return to a claimant something which he had not lost, namely possession of land of which already he had possession. Not only would it be inconsistent with the nature of a possession order, it would be inconsistent with the relevant provisions governing the powers of the court, were a power to order recovery of wholly distinct land, of which a defendant was not in possession of, to exist. In addition, the concept of occupying part of property, the remainder of which was vacant, effectively in the name of the whole, could not be extended to apply to land which was wholly distinct, even miles away, from land that was being occupied. The law would also be harmed rather than improved if a court were able to grant orders which lay defendants, knowing the facts, would rightly find incomprehensible (see [12], [20], [64], [67], [74], [78] and [96] of the judgment).
The Court of Appeal had been wrong, in the instant case, to grant to the Secretary of State a wider order for possession (see [19], [20], [41], [67], [95] and [98] of the judgment).
Drury v Secretary of State for the Environment, Food and Rural Affairs [2004] 2 All ER 1056 explained; University of Essex v Djemal [1980] 2 All ER 742 considered.
(2) The decision whether an injunction should be granted restraining a defendant from trespassing on land with which s/he was not in possession or occupation of would have to turn on the facts of each individual case. Where a trespass to property was threatened, and particularly where a trespass was being committed, and had been committed in the past, an injunction to restrain the threatened trespass (or continuing trespass) would, in the absence of good reasons to the contrary, be appropriate (see [79] of the judgment).
The Court of Appeal's decision to grant an injunction, in the instant case, could not be impugned. It could not be said that the Court was plainly wrong in granting the injunction in favour of the Secretary of State, or that it had made an error of principle in the reasoning which had led to its grant. In addition, even if assuming (in accordance with the Secretary of State's concession) that the Commission's failure to comply with the guidance might deter the making of an order for possession against travellers, it ought not to preclude the grant of an injunction to restrain travellers from trespassing on other land (see [3], [16], [17], [20], [39], [79], [83], [84], [87], [91] and [95]-[98] of the judgment).
Accordingly, the injunction would stand.
South Bucks District Council v Porter, Chichester District Council v Searle, Wrexham County Borough Council v Berry [2003] 3 All ER 1 considered.
Per curiam (Per Lord Rodger, Lady Hale and Lord Neuberger): Consideration may have to be given by the Master of the Rolls and the Civil Procedure Rules Committee to the current lack of an effective remedy or remedies available to a claimant where there is, or has been, a trespass, by a defendant, to land to which the defendant neither possesses nor occupies (see [17], [18], [40] and [94] of the judgment).
Decision of Court of Appeal [2008] All ER (D) 418 (Jul); reversed in part.
Barrister: Robert Chan
Published Date: 01/12/2009
R (on the application of Metro Construction Ltd) v Barnet London Borough Council
Citation: [2009] All ER (D) 266 (Nov)
Alternative Citations: [2009] EWHC 2956 (Admin)
Hearing Date: 25 November 2009
Court: Queen's Bench Division, Administrative Court (London)
Judge: Collins J
Representation: Robert Griffiths QC and James Strachan (instructed by Pinsent Masons LLP) for the claimant. Robert McCracken QC and Jeremy Phillips (instructed by London Borough of Barnet, Legal Services) for the authority.
Abstract: Town and country planning - Conservation area. The Administrative Court held, in allowing the claimant's application for judicial review: (i) that the word 'solely', in the last sentence of paragraph 3.14 of the guidelines on the management of conservation areas, governed both the alternatives which followed it, and was not limited to the first alternative only; and (ii) that in the instant case the defendant local authority's decision to designate the site in question as a conservation area was unlawful.
Keywords: Town and country planning - Conservation area - Control of demolition - Guidance on management of conservation areas - Situations when demolition not permitted - Claimant seeking to develop site with monastery building for residential use - Defendant local authority designating site as conservation area - Claimant arguing designation unlawful by reason of authority's objective to control demolition of monastery - Whether designation lawful - Meaning of sentence in guidance concerning when demolition should not be undertaken - Town and Country Planning Act 1990, section 55(1A) - Planning (Listed Buildings and Conservation Areas) Act 1990, sections 1, 3, 69.
Summary: The judgment is available at: [2009] EWHC 2956 (Admin)
In September 2007, the claimant company purchased a 2.5 acre area of land in the northwest of London upon which was situated, at the point of sale, a defunct Carmelite monastery (the site). In December, the claimant applied for planning permission to develop the site for residential use. The defendant local authority was concerned that the monastery might be demolished, notwithstanding that it had been included in the 'local list'. Regard was given to: (i) the relevant unitary development plan, which sought to provide some protection for locally listed buildings (see [4] of the judgment); (ii) chapter 4 of Planning Policy Guidance 15: Planning and the Historic Environment, which dealt with conservation areas (see [6] and [8] of the judgment); and (iii) two sets of guidelines, one relating to conservation area appraisals, the other to the management of conservation areas (the management guidance) (see [9] and [10] of the judgment). The management guidance provided, so far as material, at paragraph 3.14: 'Whilst designation can be a legitimate response to an actual or perceived threat to the character of an area, the first consideration should always be whether the area is of sufficient special interest to warrant designation, rather than whether designation would provide an additional control. Designation should never be undertaken solely in response to local pressure, or to bring the future of particular unlisted buildings under control.' In the event, the authority sought to persuade the Secretary of State to list the monastery as a 'building of special architectural or historic interest' under section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the 1990 Act). The authority decided to act pursuant to section 3 of the 1990 Act; serving a 'building preservation notice' for the purposes of achieving a temporary listing. Thereafter, the claimant obtained a report from professional heritage consultants, who concluded, inter alia, that the inclusion of the monastery on the local list, but not the statutory list, was appropriate. English Heritage reached the same conclusion. In June 2008, the Secretary of State, acting on the advice of English Heritage, and that of the relevant government adviser, decided not to list the monastery. A month later, the claimant notified the authority of its intention to demolish the monastery building.
The authority's response was that if demolition went ahead it had to be subject to conditions. In the meantime, the authority had been pursuing the designation of the site as a conservation area. The claimant argued that such designation would be an unlawful use of section 69 of the 1990 Act, of which, by virtue of subsection 2, a duty was placed on local authorities to 'from time to time... review the past exercise of functions... and to determine whether any parts or any further parts of their area should be designated as conservation areas; and, if they so determine, they shall designate those parts accordingly'. On 23 October, the authority decided, by way of a meeting of its Cabinet, to designate the site as a conservation area. The claimant applied for judicial review of that decision. It was common knowledge that shortly before the Cabinet had made its decision, the claimant was granted planning permission for 'the retention and adaptation of the monastery and the construction of houses in the garden'.
The principal issue was whether the decision to designate was an unlawful one/whether the judgment of the Cabinet was based on a lawful approach. A sub-issue arose as to the meaning of the last sentence of paragraph 3.14 of the management guidance, but, in particular, whether the word 'solely' in that sentence governed both the alternatives which followed it or whether it was limited to the first alternative only.
The application would be allowed.
(1) The word 'solely', in the last sentence of paragraph 3.14 of the management guidance, governed both the alternatives which followed it; it was not to be limited to the first alternative only by reason of the fact that the two alternatives were separated by a comma (see [10] of the judgment).
It was clear that the alternative of 'the future of unlisted buildings' might be a relevant consideration if such a building provided a material contribution to an area which was worthy of designation and which would be harmed if there was to be demolition of the same. It was apparent that the desire to protect unlisted buildings, and, a fortiori, a single unlisted building, could not justify a designation unless there was an area to which that building or buildings made a real contribution. Hence, if the motive for designation was to protect an unlisted building, that would suggest that the statutory powers were being used for a wrong purpose, and, as such, the planning authority had to show a clear justification for the designation (see [10] of the judgment).
(2) In the instant case, the only reason for the designation was to save the monastery building from demolition. That was an unlawful approach, notwithstanding that the site might have been capable of designation as a conservation area. In essence, the designation was no more than an attempt by the authority to achieve what the refusal to list had frustrated. The site could not properly be regarded as forming a conservation area. Even if in the end designation was supportable, the manner in which the authority had reached its decision to designate was unlawful since the purpose of the designation was unlawful. For those reasons, the designation had to be quashed (see [28], [31], [32], [37], [39] and [41] of the judgment).
Order accordingly.
R (on the application of Arndale Properties Ltd) v Worcester City Council [2008] All ER (D) 192 (Mar) considered.
Per curiam: Buildings of national importance (which may in some cases be examples of buildings important locally which are found only in a particular area) are listed and cannot be adapted or demolished unless specific permission is obtained. Locally listed buildings do not have that protection. They cannot be adapted, at least if their outward appearance is changed, because that would amount to development, but, unless dwelling houses, they can be demolished. This may be undesirable; consideration may have to be given to granting them some degree of protection by not excluding them from section 55(1A) of the Town and Country Planning Act 1990 (on the meaning of 'building operations') (see [33] of the judgment).
Barrister: Robert Chan
Published Date: 25/11/2009
Legislation
Perpetuities and Accumulations Act 2009 (Commencement) Order 2010
LNB News 15/01/2010 25
Published Date: 15 January 2010
Jurisdiction: England; Wales
Enactment Citation: SI 2010/37
Enabling Power: Perpetuities and Accumulations Act 2009, section 22(2)
Abstract: SI 2010/37: Perpetuities and Accumulations Act 2009 which modernises and simplifies the law on leaving property in trust, will come fully into force on 6 April 2010
Summary: Brings into force on 6 April 2010, the Perpetuities and Accumulations Act 2009, 1-21, schedule. The rest of the Act, namely sections 22 to 24, came into force on Royal Assent.
Non-Domestic Rating (Rural Settlements) (England) (Amendment) Order 2009
LNB News 10/12/2009 27
Published Date: 10 December 2009
Jurisdiction: England
Enactment Citation: SI 2009/3176
Commencement date: 1 April 2010
Legislation Affected: SI 1997/2792 amended
Enabling Power: Local Government Finance Act 1988, sections 43(6B), 47(3A)(b)
Abstract: SI 2009/3176: Rateable value thresholds for rural rate relief increased
Summary: Increase the rateable value thresholds for rural rate relief above which those hereditaments to which the relief would otherwise apply will not be eligible for the relief. For mandatory relief, they increase: from £7,000 to £8,500 the rateable value limit for a sole shop, general store or post office situated in a designated rural area; and from £10,500 to £12,500 the rateable value limit for a sole public house or petrol station situated in a designated rural area. The rateable value limit for discretionary rate relief for hereditaments situated in a designated rural area is increased from £14,000 to £16,500
Non-Domestic Rating (Small Business Rate Relief) (England) (Amendment) (No 2) Order 2009
LNB News 10/12/2009 71
Published Date: 10 December 2009
Jurisdiction: England
Enactment Citation: SI 2009/3175
Commencement date: 1 April 2010
Legislation Affected: SI 2004/3315 amended
Enabling Power: Local Government Finance Act 1988, sections 43(4B)(a)(ii), (iii), (4C), 143(1), (2)
Abstract: SI 2009/3175: Ratepayer's entitlement to small business rate relief increased from 1 April 2010
Summary: Increases a ratepayer's entitlement to small business rate relief (SBRR) and the amount of relief to take account of changes to rateable values of hereditaments from 1 April 2010 as a result of revaluation. Increases the rateable value thresholds, which apply when determining the amount for the purposes of the formula used when a ratepayer is entitled to SBRR. The rateable value threshold for entitlement to the higher rate of relief is being increased from £5,000 to £6,000 and for the lower rate of relief, from £10,000 to £12,000.
Makes further amendments so ratepayers will not have to reapply between revaluations as long as they meet the conditions for eligibility for SBRR, which apply at the beginning of the new valuation period. The ratepayer need not make a fresh application for the new valuation period.
Ensures where a ratepayer is receiving relief in respect of a hereditament prior to 1 April 2010 and on 1 April 2010 the rateable value of that hereditament increases, as long as the rateable value does not increase above the new, higher thresholds the ratepayer will continue to be eligible for relief, although the amount of relief may change as a result.
Non-Domestic Rating Contributions (England) (Amendment) Regulations 2009
LNB News 02/12/2009 17
Published Date: 2 December 2009
Jurisdiction: England
Enactment Citation: SI 2009/3095
Commencement date: 31 December 2009
Legislation Affected: SI 1992/3082 amended
Enabling Power: Local Government Finance Act 1988, sections 143(1), (2), schedule 8, paragraphs 4, 6
Abstract: SI 2009/3095: Amount local authorities must pay into national pool for business rates amended
Summary: Amend the Non-Domestic Rating (Contributions) (England) Regulations 1992, SI 1992/3082. Change the amount that an English local authority must pay in each year into the national non-domestic rating pool, which is administered by the Secretary of State for Communities and Local Government. Take effect for financial years from 1 April 2010
Journals
Showing Interest
LNB News 21/12/2009 14
Published Date: 21 December 2009
Author: Mark Pawlowski
Journal Name: Trusts and Estates Law & Tax Journal
Journal Date: 1 November 2009
Journal Citation: Trusts and Estates Law & Tax Journal, November 2009, 4
Jurisdiction: England; Wales
Related Cases: Jones v Kernott [2009] EWHC 1713 (Ch), [2009] All ER (D) 123 (Jul)
Abstract: Trusts and Estates Law & Tax Journal, November 2009: To what extent may the court impose its own sense of justice when determining parties' beneficial ownership of the family home?
Summary: Considers a recent High Court ruling on the assessment of beneficial shares in the family home. The case of Jones v Kernott has confirmed that a court can attribute to co-owners of a home an intention to vary their beneficial interests that they had not actually expressed to each other. The court can also impute to them an adjustment that would be fair and reasonable.
Property/Landlord & Tenant: Contracting Out
LNB News 11/12/2009 80
Published Date: 11 December 2009
Author: Philip Sissons
Journal Name: New Law Journal
Journal Date: 11 December 2009
Journal Citation: 159 NLJ 1725
Jurisdiction: England; Wales
Related Legislation: Landlord and Tenant Act 1954
Related Cases: Newham v Van Staden [2008] EWCA Civ 1414, [2009] All ER (D) 131 (Apr)
Abstract: New Law Journal, 11 December 2009: How a recent case has potentially wide-reaching consequences for agreements purporting to exclude the Landlord and Tenant Act
Summary: Examines the effect of the decision in Newham v Van Staden. The effect of the Landlord and Tenant Act 1954 can be excluded by agreement between the parties, provided certain statutory requirements are met. The decision in Newham v Van Staden is of potentially wide-reaching effect in determining when an agreement which purports to exclude LTA 1954 will be effective.
www.newlawjournal.co.uk: Contracting Out
VAT and Commercial Property
LNB News 24/11/2009 40
Published Date: 24 November 2009
Author: Gary Barnett
Journal Name: Tax Journal
Journal Date: 23 November 2009
Journal Citation: Tax Journal, Issue 1006, 13
Jurisdiction: England; Scotland; Northern Ireland; Wales
Abstract: Tax Journal, 23 November 2009: How the basic rules for the VAT treatment of property are applied in commonly encountered commercial property transactions
Summary: The latest in a series of basic informative articles follows looks at the VAT treatment of some common commercial property transactions. The grant or assignment of a lease or a licence to occupy a commercial building in consideration of rent or a premium from the tenant/licensee will generally be an exempt supply, unless the landlord has opted to tax the property. The grant of a lease exceeding 21 years is a supply of goods, whereas the grant of a shorter lease will be a supply of services.
Property: Searching Questions
LNB News 22/11/2009 30
Published Date: 22 November 2009
Author: Andrew Stenning
Journal Name: New Law Journal
Journal Date: 20 November 2009
Journal Citation: 159 NLJ 1616
Jurisdiction: England; Wales
Abstract: New Law Journal, Issue 7394: Have Home Information Packs worked?
Summary: Looks at whether Home Information Packs (HIPs) have succeeded in speeding up the conveyancing process. There have been some calls in the past to scrap HIPs. However, a recent poll has been commissioned with over 175 housing industry professionals, which included mortgage lenders, estate agents and property investors who said that they were in favour of HIPs.
Property: Beyond Repair?
LNB News 22/11/2009 31
Published Date: 22 November 2009
Author: Sam Cherry
Journal Name: New Law Journal
Journal Date: 20 November 2009
Journal Citation: 159 NLJ 1614
Jurisdiction: England; Wales
Related Cases: Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley Warwickshire v Wallbank [2007] All ER (D) 50 (Feb)
Abstract: New Law Journal, Issue 7394: How does chancel repair liability affect the modern day conveyancer?
Summary: Looks at what can be learned from the Wallbank case with regard to chancel repair liability. It is up to the conveyancer to decide whether it is appropriate to check for chancel repair liability. But with the increased activity from the church in terms of registration the question arises of whether it is worth taking the risk of either ignoring the matter or putting in place insurance that doesn't comply with their recommendations.
Property: Expensive Mistakes
LNB News 22/11/2009 32
Published Date: 22 November 2009
Author: Katherine Rees
Journal Name: New Law Journal
Journal Date: 20 November 2009
Journal Citation: 159 NLJ 1611
Jurisdiction: England; Wales
Abstract: New Law Journal, Issue 7394: How undertakings, overage clauses and the 'exclusionary rule' continue to be problematic in property transactions
Summary: Examines risks arising from property transactions, focusing on undertakings, overage clauses and the 'exclusionary rule'. There has been a spate of recent decisions about undertakings, focusing on the unwelcome consequences for solicitors who acted for sellers and who gave routine undertakings to discharge charges on completion, but failed to obtain redemption figures. Although the solicitors in these matters raised a variety of ingenious arguments, the message from the court was consistent.
Articles
Mortgage Defaulters Supported in 2009 but Repossession Levels Uncertain for 2010
LNB News 05/01/2010 7
Published Date: 5 January 2010
Jurisdiction: UK
Related Legislation: Law of Property Act 1925; Administration of Justice Act 1985
Related Cases: Horsham Properties Group Ltd v Clark and another [2008] EWHC 2327 (Ch), [2008] All ER (D) 58 (Oct)
Related Digests: Press Release: New Mortgage Instructions LNB News 14/12/2009 27; Report: Turning the Tide?, LNB News 05/01/2010 3; Repossession and Social Housing Warning in UK Housing Review 2009/10, LNB News 05/01/2010 4
Abstract: Since 1 January 2010 new voluntary mortgage instructions have been made available by the BSA. Greg Bousfield talks to Victoria Barnard, mortgage policy advisor with the BSA about how lenders are working with mortgage defaulters to find alternatives to repossession and not rushing to repossess
Analysis: A report published in December 2009 by Shelter/CAB, Turning the Tide? (the Report), claims about one third of lenders do not go through pre-action protocols and offer mortgage defaulters more options before repossession. The Report accuses the courts of complicity in hasty repossessions as judges are only applying sanctions in a minority of cases against lenders for sidestepping pre-action protocols. Sub-prime lenders are particularly going to court early, the Report says.
The Report is based on information from 452 people who sought advice from court duty desks run by AdviceUK members, CAB and Shelter at 65 county courts in England during July 2009, and lists of scheduled mortgage/secured loan possession hearings by their courts in July 2009, which identify the lender taking action. Lists were collected from 52 county courts in England, containing 2444 cases.
"Only a small proportion of lenders are not complying with the protocol; this does not reflect the actions of the majority of lenders, including building societies," Victoria Barnard, mortgage policy advisor with the Building Society Association says. "The majority of lenders will work closely with their customers to agree suitable payment plans to help them avoid losing their home (forbearance).
"Our research shows of the customers surveyed 97 % managed to work with their lender to avoid repossession. This research was based on all UK lenders not just building societies. Certainly in the building society sector repossession really is a last resort and action will only be taken once all other options have been considered."
Law of Property Act 1925 (LPA) receivers are primarily used for buy-to-let (BTL) properties, she says. "It is very unusual for a lender to take possession of an owner-occupied property via this route."
LPA repossessions were found to be HRA-compliant in 2008 after a High Court ruling, in Horsham Properties Group Ltd v Clark [2008] All ER (D) 58 (Oct) against two defaulting mortgage holders living in their own BTL property. The lender sold the property to a buyer who then issued trespass proceedings to obtain possession pursuant to the LPA rather than applying for court repossession under the Administration of Justice Act 1985 (AJA). Housing NGOs feared a jump in such repossessions but little data is available on trends.
Barnard says voluntary possessions where the customer hands the keys back to the lender have increased. "In these instances the lender will not necessarily seek a court order to take possession and instead will take possession under the power of sale in the mortgage deed."
The Report says job loss was the most common reason given by borrowers for falling into arrears and low income households were most likely to have their houses repossessed. Shelter says while the government's Support for Mortgage Interest (SMI) benefit scheme could help support this category of borrower many paid higher interest rates than those covered by SMI and there was evidence borrowers were not making use of the scheme.
The BSA co-authored UK Housing Review 2009/10 published 17 December 2009 says the number of repossessions was lower in 2009 than the peak of 76,000 in 1991 but the outlook for 2010 remains uncertain.
Landlords May Now Add Clauses Stopping VAs in Lease Agreements
LNB News 18/12/2009 72
Published Date: 18 December 2009
Jurisdiction: UK
Related Legislation: Law of Property Act 1925
Related Cases: Akici v LR Butlin Ltd [2005] EWCA Civ 1296, [2005] All ER (D) 22 (Nov); Clarence House Ltd v National Westminster Bank plc [2009] EWHC 77 (Ch), [2009] 3 All ER 175; Clarence House Ltd v National Westminster Bank plc [2009] EWCA Civ 1311, [2009] All ER (D) 70 (Dec)
Related Digests: Property/Landlord & Tenant: Virtually No Chance? LNB News 26/10/2009 39
Abstract: The decision in Clarence House v Natwest where a VA breached the covenant not to share or part with possession was overturned 8 December 2009. Duncan Wood talks with Simon Brilliant (a barrister at Lamb Chambers), James Knox (a partner at Linklaters) and Penny McClaren (an associate at Linklaters) about the health of the VA
Analysis: Declarations about the end of virtual assignments (VAs) following the Clarence House v Natwest [2009] 3 All ER 175 judgment from January 2009 seem to have been premature. "This is not the death knell for virtual assignments--they are alive and kicking," declares Simon Brilliant, barrister at Lamb Chambers and counsel for Natwest in the court of first instance. "The original decision was problematic because it implied any VA out of the thousands in existence would have amounted to breach of lease. But what we may see now is landlords going out of their way to stop them happening, such as putting in clauses in standard lease agreements which basically stipulate the tenant not to enter into virtual assignments."
James Knox, a partner at Linklaters, disagrees and argues landlords have nothing to fear from their tenants entering into VAs: "They don't affect the landlord and tenant relationship; the landlord doesn't lose any rights nor is his or her investment prejudiced. VAs have been around for over ten years and no landlord has ever tried to challenge one until now." The judgment's significance, Knox declares, lies in the fact it provides significant clarity on the meaning of 'possession' in the context of parting with or sharing of possession in leases. In the decision at first instance the judge applied a statutory definition of the word that includes receipt of rent. Their Lordships in the Court of Appeal followed the decision in Akici v LR Butlin Ltd[2005] EWCA Civ 1296, the meaning of 'possession' within the context of a landlord and tenant covenant should be given its usual and normal technical meaning, that is, it should denote the physical occupation of a property. "Possession, in this context, should not be distinguished from occupation," points out Penny McLaren, associate at Linklaters. "They are different concepts but can be seen as synonymous in this situation. In the first instance the judge stretched the meaning of possession too far. In any event in the Natwestcase it could never be said Natwest, the virtual assignor, parted with possession. Natwest was never in possession--an undertenant, Mercers, was the occupier and person in possession throughout."
"The judge overlooked the opening words of the definition section 'unless the context otherwise requires' in the Law of Property Act 1925," remarks Simon Brilliant. "It is now clear the definition of 'possession' used by the trial judge just will not stand in the future."
What both Knox and Brilliant agree on, however, is the case is something of an anomaly and won't bring about the demise of the VA. "Banks as virtual assignors have never really stopped paying rent in the past and so haven't caused much of a problem. I can't imagine we will see any more cases being brought--this appeal has given virtual assignments a clean bill of health," says Brilliant. In the current economic climate the suggestion that VAs could be used as a mechanism to release struggling tenants from rent payments is dismissed by James Knox. "This is not the purpose of VAs. VAs are not as a rule driven by market conditions but occupy their own specific place--generally to meet accounting and occupation requirements of large occupiers."
Eco-Town Projects Limp Ahead as Recession Bites
LNB News 08/12/2009 28
Published Date: 8 December 2009
Jurisdiction: UK
Related Digests: Press Release: Experts Challenge Developers to Raise their Game on Eco-Towns
LNB News 19/05/2008 22; Consultation Paper: Eco-Towns - Allocations From the Eco-Towns Fund LNB News 18/08/2009 4
Abstract: As the government presses ahead with eco-town announcements about nine new schemes, questions remain over when such plans will become a reality. Richard George of the Campaign for Better Transport talks to Neasa MacErlean about progress
Analysis: The government announced extra funding and further interest in its eco-towns project on 1 December 2009 when housing minister John Healey said another £5 million would be made available and that five more areas were interested in the scheme. But the idea of eco-towns--first unveiled through the government's The Eco-town prospectus--is far more controversial than people outside the planning world might expect.
For a start, relatively little concrete has happened so far. "It's an interesting idea," says Richard George, roads and climate campaigner at the Campaign for Better Transport (formerly Transport 2000). "It depends how we implement the idea."
Under the prospectus and various other documents published by the Department for Communities and Local Government since, an eco-town is meant to include a minimum of 5000 homes, offer green transport and various zero-carbon facilities and consult widely with residents. But, so far, says George, the property developers rather than local authorities have been the most enthusiastic. "I would expect a lot of money would be coming from the developers who own the land," he says. "These are quite developer-driven."
The Campaign for Better Transport is concerned too many of the dozen or so sites currently being considered are away from existing conurbations. The Campaign for Better Transport believes it is "essential" an eco-town has a rail or light rail link if it is to encourage residents to use public transport rather than have their own vehicles. This is much easier to ensure, of course, for a development which is near existing train lines rather than for a development in the country, at some distance from train tracks. It would also cost much less to build a tram system, for instance, on the edge of an existing city so it could link in to the existing infrastructure rather than setting up many miles of track to connect up a more remote location. The costs per head of population would be lower if a new tram system could be used by residents of an existing town or city as well. "You would benefit the whole area," says George.
London would be an ideal location for an eco-town because of its strong tube, bus and rail network, according to the Campaign for Better Transport. But it is not yet part of an eco-town scheme.
Lincoln, Coventry and Leeds are among the latest local authorities to announce their interest through specific proposals. Projects are already established for Northstowe in Cambridgeshire and Shoreham Harbour in West Sussex.
The current economic climate has slowed down progress on the whole concept. "The recession has put a lot of obstacles in the way of developments," says George. But if they do get going over the next few years, eco-towns could have a major effect on all planning work, says George. "If these work, I would expect there to be challenges to other developments not built on eco-town principles," he says. "If you can show something can be done sustainably, there's no point in doing it non-sustainably."
Extensions for Possession Orders Need to Be Legitimate
LNB News 07/12/2009 29
Published Date: 7 December 2009
Jurisdiction: UK
Related Cases: Secretary of State for the Environment, Food and Rural Affairs v Meier and others [2009] UKSC 11, [2009] All ER (D) 16 (Dec)
Related Digests: Consultation Response: Response of Law Reform Committee to DCLG Consultation Paper on Tolerated Trespassers--Successor Landlords LNB News 09/01/2009 4
Abstract: The Supreme Court has ruled in Secretary of State for Environment etc v Meier courts cannot make a possession order for land not yet occupied by trespassers but can order an injunction to prohibit future occupation of other land. Malcolm Dowden, solicitor and LexisPSL property author tells Evelyn Reid why the Supreme Court has reversed the decision of the Court of Appeal
Analysis: In Secretary of State for Environment etc v Meier [2009] UKSC 11, [2009] All ER (D) 16 (Dec) the Supreme Court had to consider whether a court could grant a possession order for land not yet occupied by the defendant which would give the claimant the right to call on the bailiffs to remove her; and an injunction against feared trespass of other land which would impose penalties if she disobeyed the order.
Dowden, solicitor and LexisPSL property author, says: "The Court of Appeal considered it was permissible as an incremental development of the law to make a possession order in respect of land not yet occupied by the trespasser. The Supreme Court roundly rejected that view." Lord Neuberger observed the lower court had followed the reasoning in Secretary of State v Drury [2004] 2 All ER 1056 where it was held that an order for possession against trespassers, could in appropriate cases extend to land not forming part of or even near the land actually occupied by the trespassers. However, he said it is simply not possible to make that sort of enlarged or wider order for possession however desirable it is to fashion or develop a remedy to meet a particular problem. Judges are not legislators and in order to deal with a particular problem court rules and practice have to be changed by primary or secondary legislation not by the courts.
It makes no sense to make a possession order in those circumstances says Dowden. "Such an order would require the defendant to do something he could not do (namely, deliver up possession of land he did not occupy) and would purport a return to the claimant of something he had not lost (possession of the land). There is no legitimate basis for making a possession order in these circumstances."
The second issue was whether an injunction should be refused because it was unlikely to be enforced. The Court of Appeal had recognised the available remedy--a quia timet injunction--has serious shortcomings. It is a weak remedy where the trespassers have no significant assets to enforce against and committal to prison is unlikely. Dowden says that while their Lordships acknowledged those weaknesses, they advised that it should not be assumed an injunction is a worthless remedy and that only the intervention of a bailiff is likely to be effective. "An injunction would, in the absence of good reasons to the contrary, be appropriate."
If you have any comments about this or any other news item or feature, please respond via e-mail to: news@lexisnexis.co.uk
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.