12. Ribble Industrial Estates Ltd v Burnley Borough Council
Citation: [2008] EWHC 178 (Admin)
Hearing date: 7 February 2008
Court: Queen's Bench Division, Administrative Court
Judge: Bean J
Relevant legislation: Town and Country Planning Act 1990, section 287
Summary: town and country planning – development – local plan
The claimant was a developer of industrial and commercial property. It had an option over a greenfield site in Burnley known as “Shuttleworth Mead”. In early 2002, the Burnley Local Plan came under review. A plan to replace the one which was extant, was placed on first deposit in February and a second deposit was released in May. About a year later, an inspector appointed by the defendant local planning authority held an inquiry, and, thereafter, he submitted a report. One of the conclusions drawn by the inspector was that there was a “demonstrable shortage” of employment land in Burnley compared to the Joint Lancashire Structure Plan (the structure plan) requirement. The inspector further stated that that shortage had to be addressed in view of the area's urgent regeneration needs. To remedy the shortfall, two alternative recommendations were considered. The first was to recommend specific allocations to meet the shortfall; those allocations included two sites, namely, “Hepworths” and “Stoneyholme”. The second recommendation was more general and was described as the “undertaking of an immediate review” of potential sites for increasing employment land provision to the required amount specified by the structure plan. That recommendation was prefaced by the recommendation that “the authority should carry out a further consultation to determine the feasibility of [the Hepworths] site being developed within the plan period”. After a consideration of all the evidence, the inspector said that he favoured his second recommendation.
In October 2005, the authority published its decision on the inspector's recommendations. In every case but one, which was in respect of Hepworths, the inspector's recommendations were accepted. The reason for departing from the inspector's recommendation in relation to Hepsworths was, essentially, that the undesirability of delaying the entire plan period outweighed the desirability of having a feasibility study to ascertain whether the allocation of the site was realistic. In relation to Stoneyholmes, the authority stated that it would include that site given that no objections had been taken following changes made at the second stage deposit, and that the loss of housing and the playing field on that site would be addressed as part of the Neighbourhood Action Plan process.
Accordingly, on 4 April 2006, the authority adopted the Burnley Replacement Local Plan (the replacement plan). The claimant consequently lodged a claim form under Civil Procedure Rules (CPR) part 8, seeking an order quashing, wholly or in part, the employment land chapter of the replacement plan, pursuant to section 287 of the Town and Country Planning Act 1990.
In written and oral submissions, the claimant concentrated on the parts of the employment land chapter of the replacement plan which referred to Hepworths and to Stoneyholmes. In relation to Hepsworths, the claimant challenged the fact that that site had been retained without a feasibility study, involving bodies such as the Highways Agency and the British Waterways Board, having been undertaken. As to Stoneyholmes, the claimant's complaint was that that site had been included in the replacement plan without an inquiry having been held.
The application would be dismissed.
It was settled law that where a local authority was both proposer and judge, the obligation to deal thoroughly, conscientiously, and fairly, with any objection to a local plan that had been placed on deposit, would be enhanced. It was also trite that an authority had no obligation to give reasons for its decision whether or not to hold a second inquiry in respect of any objections to a modification of a proposed replacement plan; however, if reasons had been given, the court would assess whether there was any basis in law for the decision.
In the instant case, it could not be said that the authority had failed to give due consideration to the inspector's recommendations. The reasons which were given for departing from the recommendation relating to Hepsworths had been entirely rational. In relation to Stoneyholmes, the claimant had not challenged its inclusion either at the inquiry or at any earlier stage. The inclusion of the playing field had been at issue at the deposit stages of the replacement plan. The only objection to that aspect of Stoneyholmes had come from another body; and their concerns had been adequately dealt with. Further, the inclusion of an area of housing after the inquiry, even if regarded as a procedural shortcut, had not caused substantial prejudice to the claimant.
Accordingly, the replacement plan would be maintained.
Stirk v Bridgnorth District Council (1996) 73 P & CR 439 applied; Drexfine Holdings Ltd v Cherwell District Council [1998] JPL 361 applied.
Case annotations in other services: Ribble Industrial Estates Ltd v Burnley Borough Council [2008] All ER (D) 96 (Feb); Stirk v Bridgnorth District Council (1996) 73 P & CR 439; Drexfine Holdings Ltd v Cherwell District Council [1998] JPL 361
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13. Betterment Properties (Weymouth) Ltd v Dorset County Council
Citation: [2008] EWCA Civ 22
Hearing date: 6 February 2008
Court: Court of Appeal, Civil Division
Judges: Laws, Rix and Lloyd LJJ
Relevant legislation: Commons Registration Act 1965, section 13, 14; Countryside and Rights of Way Act 2000, section 98
Summary: commons – registration – town or village green
An application was made to the defendant authority under section 13 of the Commons Registration Act 1965 to register certain land as a town or village green, as defined in the Commons Registration (New Land) Regulations 1969, statutory instrument 1969/1843. While that application was pending, section 98 of the Countryside and Rights of Way Act 2000 amended the definition in the Regulations. The land was duly registered after an inquiry carried out pursuant to those Regulations. The claimant subsequently acquired the land, and applied under section 14 of the 1965 Act to have the relevant register rectified to remove the land in question. No Regulations had been made pursuant to section 14. Preliminary issues arose as to whether the jurisdiction under section 14 of the 1965 Act was in the nature of a review, an appeal, or otherwise, and whether the amended definition of town or village green in section 98 of the Countryside and Rights of Way Act 2000, which came into force on 30 January 2001, when the original application under section 13 of the 1965 Act was pending, should have been applied to that application. The judge found that s 14 was not drafted in terms of an appeal, and that it was open to any party to adduce whatever evidence it wished, subject to the exercise of the court's case management powers, although the evidence that was before the inquiry should be put before the court and should be capable of being admitted as evidence subject to the court's directions. The authority appealed.
The appeal would be dismissed.
(1) On an application under section 14 of the 1965 Act, the court was free to adopt the procedure best calculated to enable a just and fully informed decision to be reached as to whether “no amendment or a different amendment ought to have been made”, whether it was just to rectify the register, what should stand as evidence and what evidence should be admitted. The court in exercise of its case management powers would have regard to the process adopted by the registration authority or any panel when the amendment of the register under section 13 of the 1965 Act was made and the evidence that had been adduced before it. It would no doubt have in mind that with the passage of time recollections would have dimmed, and potential witnesses might have died or ceased to be available. It might, for example, direct that evidence adduced before the registration authority or any panel, particularly if it had not been challenged, should stand as evidence, and that any finding should stand: (i) as a finding of fact at the hearing before the court; (ii) as evidence; or (iii) as a finding of fact in the absence of evidence to the contrary; and in deciding on the admissibility of evidence the court would no doubt bear in mind that no amendment should be rectified unless it was just to do so, and that it might be unjust to order rectification on the basis of new evidence, which, for example, could no longer be challenged, although it could have been challenged when registration had taken place.
The phrase “ought to have been made” in section 14 of the 1965 Act did not point to a review based on the material that had been before the registration authority rather than a review at large. It was equivocal, and guidance had to be found elsewhere. The absence of Regulations under section 14(b), which could have provided for the correction of errors, supported the view that the process under section 14 itself should be taken to be at large. However, the absence of a time limit was a pointer away from an appeal. Registration of land as a town or village green was of major significance to a landowner, with the blight that it cast on any development. The procedure under section 13 was relatively simple and informal with, in particular, no provision for the service of witness summonses or the disclosure of documents.
(2) The original definition of town or village green in the 1969 Regulations applied where the application under section 13 of the Act was pending on 30 January 2001.
The presumption against retrospectivity was applicable; Parliament had not provided that the amended definition should apply to pending applications. As the 1965 Act made registration conclusive, an applicant could not assert that relevant land was already a town or village green at the date of application in the way that a party might assert, in judicial proceedings, the acquisition of an individual profit à prendre by prescriptive use over 20 years. However, the position of an applicant under section 13 of the Act, who asserted that the relevant land had been the subject of use by a relevant section of the public for sports and pastimes over a relevant 20 year period, was closely analogous to that of such a litigant, despite the important difference arising from the requirement of registration and its conclusive effect.
R v Oxfordshire County Council, ex p Sunningwell Parish Council [1999] 3 All ER 385 considered. Decision of Lightman J [2007] All ER (D) 44 (Mar) affirmed.
Case annotations in other services: Betterment Properties (Weymouth) Ltd v Dorset County Council [2008] All ER (D) 75 (Feb); R v Oxfordshire County Council, ex p Sunningwell Parish Council [1999] 3 All ER 385; Lightman J [2007] All ER (D) 44 (Mar)
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Enabling power: Countryside and Rights of Way Act 2000
Commencement: 18 February 2008
Summary: Brings into force, in relation to England, that part of paragraph 2 of schedule 5 to the Countryside and Rights of Way Act 2000 (clause 37), which inserts a section 53A into the Wildlife and Countryside Act 1981 (clause 69)
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Enabling power: Clean Neighbourhoods and Environment Act 2005
Commencement: 6 April 2008
Summary: Requires any person intending to carry out a construction project with an estimated cost greater than £300,000 to prepare a site waste management plan that must be updated in accordance with the Regulations, with different requirements depending on whether the cost of the project is greater than £500,000
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Currently, if a landlord – for example, in London and the South East – who has been managing a property, simply wants to renew the tenancy agreement for another 12 months, he or she can expect to pay 10 per cent or 11 per cent of the annual rent as a renewal commission to the letting agent. For many properties in the region, this could be a figure running into thousands and is totally unwarranted. John Socha, vice chairman of the NLA, says that "this regional anomaly has gone on far too long.
"It is totally unacceptable, where a letting agent is purely renewing the contract for the next 12 months for the same tenants, that the landlord should pay a 10 or 11 per cent commission. All landlords expect to pay a commission at the beginning of a tenancy, but with rents in London and the South East topping the tables, another fee of this size is simply unfair."
Steven Hilton, media relations manager at the NLA, says that "we are certainly not campaigning for primary legislation about what is, for the most part, a commercial matter between two parties. I don’t think there would be appetite from the government for legislation, and we don’t call for further regulation as a matter of course, and, remember, this isn’t about letting agencies never charging landlords a fee. This is specifically about when the landlord has managed the property throughout the course of the tenancy, and the letting agent has done nothing except the paperwork to renew the same tenants."
Instead, Hilton says that an ideal result would be the Association of Residential Letting Agents (ARLA), a self-regulating body for letting agents, issuing guidelines to its members reflecting the campaign. Hilton says that landlords are powerless if they have signed a contract with a letting agent that allows the letting agent to charge this fee. However, he adds that it is perfectly reasonable to try and renegotiate, though, ultimately, landlords should check the small print. "I’m quite certain that some landlords don’t check the small print on tenancy agreements. Of course, we advise otherwise," says Hilton.
"A good relationship with a reputable letting agent can be very useful even for the experienced landlord," says Socha, "but it’s absolutely critical to check the small print at the beginning of the tenancy. If it’s too high, try and negotiate or find another letting agent. There is no good reason for a significant renewal fee that doesn’t reflect the work undertaken by the letting agents in London and the surrounding towns and cities."
"It is certainly a shock to many landlords to be presented with the charge once more, 12 months after the initial let," says Hilton. "In terms of figures, I’m not sure. But every letting agent in London and the South East operate this fee. In fact, some even then charge the £60 administration fee for the contract in addition to the percentage renewal fee.
"We think this is an opportunity for ARLA to get their house in order. So far, they have washed their hands of the issue and have said nothing. On their own, I don’t see why letting agents would deny themselves this income, but we’re hoping to exert enough pressure so they feel they should address it," he adds.
(20/2/08)
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The new regulations, which apply to a range of construction projects such as new build, maintenance, alteration or installation / removal of services such as sewerage and water, are intended to be self regulatory but will be enforced by the Environment Agency and local authorities. These enforcement bodies will have the authority to issue fines for non-compliance to the client; the person who is paying for the building work.
Jeremy Glover, a partner at Fenwick Elliot, explained that the aim of these policies "is to vastly increase the amount of recycling and refuse taking place within the construction industry". This, he said, is in keeping with a general desire to push green issues to the fore, and actively reduce waste, as demonstrated by the domestic recycling activities already being run by local authorities nationwide.
Mr Glover explained that when the plans were originally drawn up, a £250,000 minimum threshold was set; the reasoning being that "from a cost-benefit point of view, there would be no additional costs to the client if they were to carry out the stipulated recycling and reuse activities." This is born out by figures published by NetRegs: "the average eight cubic yard skip costs around £150. The average cost of what is being thrown away in that skip is over £1,200. In the UK, an average of 13 per cent of all materials delivered to sites goes into a skip without ever being used. The UK produces around 400 million tonnes of waste annually, of which about 72 million tonnes comes from construction sites".
The regulations also mention that while smaller construction projects do not legally require an SWMP, the implementation of such a plan could also help to reduce resource use and costs, albeit on a smaller scale. Mr Glover said that this is an indication that there are definite plans afoot to extend, over time, the legislation to cover all types of construction project.
There will be two types of SWMP, depending on the cost of the project. Projects costing between £300,000 and £500,000 will be managed according to simpler guidelines, whereas projects in the over-£500,000 bracket will require significant details. Mr Glover elaborated, "more detail is required for larger sites due to the increased cost benefits; there are potentially more savings to be made on larger-scale projects because there are more materials involved".
Mr Glover sees the new legislation as a good thing that, if taken seriously, will reduce waste and deliver cost savings to the construction industry: "If carried out properly, the plans should lead to benefits for everyone."
(18/2/08)
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The FSA estimates that the potential losses on repossessions connected with new-build mortgage fraud are currently around £45,000 per property. Mike Willis, a partner with the professional risk group Beachcroft, said, "Fraudsters are now exploiting opportunities in the buy-to-let market, as well as moving into larger commercial property lending, where they can make greater gains – with commensurately greater exposures for the lawyers and other professional advisers who let down their guard."
In 2006, the FSA began the Information from Lenders Project and asked lenders to inform them of brokers that they were worried about. Since then, more than 30 lenders engaged with the project and submitted more than 200 cases of suspected fraud.
One company currently under scrutiny is Morris Properties, regarding its gifted deposit and other incentives to property developers.
In one case, the company advertised a flat for £200,000; however, as an incentive to the property developer, it waived the deposit of about £30,000, but on the day of completion, it paid the £30,000 to the buyer’s solicitor, which was then joined by the mortgage lender’s money.
Within a few hours the entire amount went back to Morris Properties, so only the mortgage lender actually paid out any money for the property. Although the buyer paid only £170,000, the property was registered with the Land Registry for £199,995.
Mr Willis said, "If the total moneys actually passing in the transaction was the amount drawn down from the lender, yet (i) the lender was told that the amount passing would be (£30,000) more than that; or (ii) the Revenue were told that the total price paid was a greater figure; or (iii) the Land Registrar was told the same, so that an incorrect record was made; then there was a fraudulent deception in all three cases."
The Council of Mortgage Lenders said that lenders are not aware of gifted deposits and, if they were, may not have loaned what sometimes amount to a 100 per cent mortgage.
It is the buyer’s solicitor’s duty to inform the lenders of such deals. Morris Properties said it provided incentives with the full knowledge of solicitors acting for both lenders and purchasers.
The solicitor has a duty of care to act in the best interest of clients, said Mr Willis. "If the lender is a client of the solicitor as well as the buyer, then the solicitor will owe contractual and tortious duties to the lender, including a duty not to prefer the interests of another (the borrower / buyer) client."
The Solicitors Regulation Authority is investigating 60 solicitors firms nationwide about allegations of overvaluing and mortgage fraud.
Asked whether there should be tighter regulations, Mr Willis replied, "The fraud risk is capable of being measured, managed and policed more effectively by both lenders’ and solicitors’ authorities, but I doubt more regulation would be a useful or effective tool to achieving it."
He added, "Dishonest deception is just that, and the powers of the regulators to police or prevent it through further regulation are limited.
"In some circumstances, regulation would so obfuscate the real issues at stake in a transaction that they would be counterproductive, possibly in a greater proportion of transactions than the number where the fraud risks might be mitigated."
The FSA announced plans to launch the National Fraud Strategic Authority, which will develop policy incentives to improve the ease with which lenders and authorities can act to prevent fraud.
Mr Willis said, "If action is taken through further regulatory prohibitions (e.g. against acting for both lender and borrower) the convenience and economy of process for the majority will become compromised by the need to restrict or inhibit the opportunities for impropriety by a minority, which, provided the policing (rather than regulation) remains efficient, should remain small enough that the cumulative deficit value of the fraud risk is absorbable by the lending industry."
(14/2/08)
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4. New Homes and Communities Agency to streamline housing delivery
According to the government, the new Homes and Communities Agency (HCA) will bring a joined-up approach to housing and regeneration.
The HCA will bring together the functions of English Partnerships, the national regeneration agency, and the Housing Corporation, which funds new affordable housing and regulates housing associations in England, as well as a range of work carried out by the Housing and Planning Department (the Department).
For the first time, one organisation will have responsibilities for the land and finance to deliver new housing, community facilities and infrastructure, in hopes of reducing bureaucracy and improving efficiency in the housing system.
Shabana Anwar, solicitor with Bircham Dyson Bell LLP and contributor to Butterworths Planning Law Service, said, "In addition, the HCA will also be taking over the Thames Gateway Delivery functions. In theory it makes sense for one body to be responsible for the delivery of these functions rather then a disparate number of agencies."
She added: "Hopefully, this will lead to a more coordinated and holistic approach, as well as quicker delivery. However, the agency will be taking over a large number of different functions and there is a danger that the delivery of some of these may be at the expense of others."
The announcement of the new agency follows a nine-month review by the Department in consultation with the Housing Corporation and English Partnerships. Initially called Communities England, the name HCA was thought to more accurately reflect what the new agency will deliver — renewal of the housing market, Private Finance Initiates, housing growth and urban regeneration.
Asked what problems HCA may encounter, Anwar replied, "It will need to engage effectively with both developers and local authorities, this will be its biggest challenge.
"It will also need to ensure that despite its “super quango” image it can deliver on its objectives and ensure there is effective coordination between its different functions."
Communities Secretary, Ruth Kelly, said that the new agency will further enhance the government’s agenda to ensure social mobility and economic inclusion.
She added, "With the expectation of over £4 billion of public spending at its disposal, Communities England will pioneer innovative and more efficient ways of working with our key partners in the public, private and voluntary sector to get better outcomes from public investment in places."
The HCA is part of a streamlined delivery chain to fulfil the government’s pledge to build three million greener more affordable new homes by 2020.
Anwar said: "Although an ambitious figure, it is achievable. The recent Callcutt Review of House-building Delivery (published in November 2007) confirmed that the house-building industry is capable of delivering 240,000 homes a year by 2016. However, improved partnership and cooperation between the new agency, developers and local authorities is crucial."
The HCA will also play a key role in the development of ten “eco-towns”. These will be small new towns of at least 5,000 to 20,000 homes, which will create new settlements to achieve zero carbon development and more sustainable living, using new design and architecture.
(5/2/08)
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Articles
Citation: [2008] EWHC 178 (Admin)
Hearing date: 7 February 2008
Court: Queen's Bench Division, Administrative Court
Judge: Bean J
Relevant legislation: Town and Country Planning Act 1990, section 287
Summary: town and country planning – development – local plan
The claimant was a developer of industrial and commercial property. It had an option over a greenfield site in Burnley known as “Shuttleworth Mead”. In early 2002, the Burnley Local Plan came under review. A plan to replace the one which was extant, was placed on first deposit in February and a second deposit was released in May. About a year later, an inspector appointed by the defendant local planning authority held an inquiry, and, thereafter, he submitted a report. One of the conclusions drawn by the inspector was that there was a “demonstrable shortage” of employment land in Burnley compared to the Joint Lancashire Structure Plan (the structure plan) requirement. The inspector further stated that that shortage had to be addressed in view of the area's urgent regeneration needs. To remedy the shortfall, two alternative recommendations were considered. The first was to recommend specific allocations to meet the shortfall; those allocations included two sites, namely, “Hepworths” and “Stoneyholme”. The second recommendation was more general and was described as the “undertaking of an immediate review” of potential sites for increasing employment land provision to the required amount specified by the structure plan. That recommendation was prefaced by the recommendation that “the authority should carry out a further consultation to determine the feasibility of [the Hepworths] site being developed within the plan period”. After a consideration of all the evidence, the inspector said that he favoured his second recommendation.
In October 2005, the authority published its decision on the inspector's recommendations. In every case but one, which was in respect of Hepworths, the inspector's recommendations were accepted. The reason for departing from the inspector's recommendation in relation to Hepsworths was, essentially, that the undesirability of delaying the entire plan period outweighed the desirability of having a feasibility study to ascertain whether the allocation of the site was realistic. In relation to Stoneyholmes, the authority stated that it would include that site given that no objections had been taken following changes made at the second stage deposit, and that the loss of housing and the playing field on that site would be addressed as part of the Neighbourhood Action Plan process.
Accordingly, on 4 April 2006, the authority adopted the Burnley Replacement Local Plan (the replacement plan). The claimant consequently lodged a claim form under Civil Procedure Rules (CPR) part 8, seeking an order quashing, wholly or in part, the employment land chapter of the replacement plan, pursuant to section 287 of the Town and Country Planning Act 1990.
In written and oral submissions, the claimant concentrated on the parts of the employment land chapter of the replacement plan which referred to Hepworths and to Stoneyholmes. In relation to Hepsworths, the claimant challenged the fact that that site had been retained without a feasibility study, involving bodies such as the Highways Agency and the British Waterways Board, having been undertaken. As to Stoneyholmes, the claimant's complaint was that that site had been included in the replacement plan without an inquiry having been held.
The application would be dismissed.
It was settled law that where a local authority was both proposer and judge, the obligation to deal thoroughly, conscientiously, and fairly, with any objection to a local plan that had been placed on deposit, would be enhanced. It was also trite that an authority had no obligation to give reasons for its decision whether or not to hold a second inquiry in respect of any objections to a modification of a proposed replacement plan; however, if reasons had been given, the court would assess whether there was any basis in law for the decision.
In the instant case, it could not be said that the authority had failed to give due consideration to the inspector's recommendations. The reasons which were given for departing from the recommendation relating to Hepsworths had been entirely rational. In relation to Stoneyholmes, the claimant had not challenged its inclusion either at the inquiry or at any earlier stage. The inclusion of the playing field had been at issue at the deposit stages of the replacement plan. The only objection to that aspect of Stoneyholmes had come from another body; and their concerns had been adequately dealt with. Further, the inclusion of an area of housing after the inquiry, even if regarded as a procedural shortcut, had not caused substantial prejudice to the claimant.
Accordingly, the replacement plan would be maintained.
Stirk v Bridgnorth District Council (1996) 73 P & CR 439 applied; Drexfine Holdings Ltd v Cherwell District Council [1998] JPL 361 applied.
Case annotations in other services: Ribble Industrial Estates Ltd v Burnley Borough Council [2008] All ER (D) 96 (Feb); Stirk v Bridgnorth District Council (1996) 73 P & CR 439; Drexfine Holdings Ltd v Cherwell District Council [1998] JPL 361
Back to top13. Betterment Properties (Weymouth) Ltd v Dorset County Council
Citation: [2008] EWCA Civ 22
Hearing date: 6 February 2008
Court: Court of Appeal, Civil Division
Judges: Laws, Rix and Lloyd LJJ
Relevant legislation: Commons Registration Act 1965, section 13, 14; Countryside and Rights of Way Act 2000, section 98
Summary: commons – registration – town or village green
An application was made to the defendant authority under section 13 of the Commons Registration Act 1965 to register certain land as a town or village green, as defined in the Commons Registration (New Land) Regulations 1969, statutory instrument 1969/1843. While that application was pending, section 98 of the Countryside and Rights of Way Act 2000 amended the definition in the Regulations. The land was duly registered after an inquiry carried out pursuant to those Regulations. The claimant subsequently acquired the land, and applied under section 14 of the 1965 Act to have the relevant register rectified to remove the land in question. No Regulations had been made pursuant to section 14. Preliminary issues arose as to whether the jurisdiction under section 14 of the 1965 Act was in the nature of a review, an appeal, or otherwise, and whether the amended definition of town or village green in section 98 of the Countryside and Rights of Way Act 2000, which came into force on 30 January 2001, when the original application under section 13 of the 1965 Act was pending, should have been applied to that application. The judge found that s 14 was not drafted in terms of an appeal, and that it was open to any party to adduce whatever evidence it wished, subject to the exercise of the court's case management powers, although the evidence that was before the inquiry should be put before the court and should be capable of being admitted as evidence subject to the court's directions. The authority appealed.
The appeal would be dismissed.
(1) On an application under section 14 of the 1965 Act, the court was free to adopt the procedure best calculated to enable a just and fully informed decision to be reached as to whether “no amendment or a different amendment ought to have been made”, whether it was just to rectify the register, what should stand as evidence and what evidence should be admitted. The court in exercise of its case management powers would have regard to the process adopted by the registration authority or any panel when the amendment of the register under section 13 of the 1965 Act was made and the evidence that had been adduced before it. It would no doubt have in mind that with the passage of time recollections would have dimmed, and potential witnesses might have died or ceased to be available. It might, for example, direct that evidence adduced before the registration authority or any panel, particularly if it had not been challenged, should stand as evidence, and that any finding should stand: (i) as a finding of fact at the hearing before the court; (ii) as evidence; or (iii) as a finding of fact in the absence of evidence to the contrary; and in deciding on the admissibility of evidence the court would no doubt bear in mind that no amendment should be rectified unless it was just to do so, and that it might be unjust to order rectification on the basis of new evidence, which, for example, could no longer be challenged, although it could have been challenged when registration had taken place.
The phrase “ought to have been made” in section 14 of the 1965 Act did not point to a review based on the material that had been before the registration authority rather than a review at large. It was equivocal, and guidance had to be found elsewhere. The absence of Regulations under section 14(b), which could have provided for the correction of errors, supported the view that the process under section 14 itself should be taken to be at large. However, the absence of a time limit was a pointer away from an appeal. Registration of land as a town or village green was of major significance to a landowner, with the blight that it cast on any development. The procedure under section 13 was relatively simple and informal with, in particular, no provision for the service of witness summonses or the disclosure of documents.
(2) The original definition of town or village green in the 1969 Regulations applied where the application under section 13 of the Act was pending on 30 January 2001.
The presumption against retrospectivity was applicable; Parliament had not provided that the amended definition should apply to pending applications. As the 1965 Act made registration conclusive, an applicant could not assert that relevant land was already a town or village green at the date of application in the way that a party might assert, in judicial proceedings, the acquisition of an individual profit à prendre by prescriptive use over 20 years. However, the position of an applicant under section 13 of the Act, who asserted that the relevant land had been the subject of use by a relevant section of the public for sports and pastimes over a relevant 20 year period, was closely analogous to that of such a litigant, despite the important difference arising from the requirement of registration and its conclusive effect.
R v Oxfordshire County Council, ex p Sunningwell Parish Council [1999] 3 All ER 385 considered. Decision of Lightman J [2007] All ER (D) 44 (Mar) affirmed.
Case annotations in other services: Betterment Properties (Weymouth) Ltd v Dorset County Council [2008] All ER (D) 75 (Feb); R v Oxfordshire County Council, ex p Sunningwell Parish Council [1999] 3 All ER 385; Lightman J [2007] All ER (D) 44 (Mar)
Back to topPlease note subscribers can go to LexisNexis Butterworths for further details about all the above cases. Non-subscribers can sign up for a free trial of the online service.
Statutory Instruments
1. Countryside and Rights of Way Act 2000 (Commencement No 15) Order 2008
Number: 2008/308Enabling power: Countryside and Rights of Way Act 2000
Commencement: 18 February 2008
Summary: Brings into force, in relation to England, that part of paragraph 2 of schedule 5 to the Countryside and Rights of Way Act 2000 (clause 37), which inserts a section 53A into the Wildlife and Countryside Act 1981 (clause 69)
Back to top2. Site Waste Management Plans Regulations 2008
Number: 2008/314Enabling power: Clean Neighbourhoods and Environment Act 2005
Commencement: 6 April 2008
Summary: Requires any person intending to carry out a construction project with an estimated cost greater than £300,000 to prepare a site waste management plan that must be updated in accordance with the Regulations, with different requirements depending on whether the cost of the project is greater than £500,000
Back to topPlease note subscribers can go to LexisNexis Butterworths for further details about all the above SIs. Non-subscribers can sign up for a free trial of the online service.
Features
1. Tenancy renewal fees
The National Landlords Association (NLA) is calling on unfair tenancy renewal fees by letting agents to be abolished when landlords have managed the property themselves throughout the agreement.Currently, if a landlord – for example, in London and the South East – who has been managing a property, simply wants to renew the tenancy agreement for another 12 months, he or she can expect to pay 10 per cent or 11 per cent of the annual rent as a renewal commission to the letting agent. For many properties in the region, this could be a figure running into thousands and is totally unwarranted. John Socha, vice chairman of the NLA, says that "this regional anomaly has gone on far too long.
"It is totally unacceptable, where a letting agent is purely renewing the contract for the next 12 months for the same tenants, that the landlord should pay a 10 or 11 per cent commission. All landlords expect to pay a commission at the beginning of a tenancy, but with rents in London and the South East topping the tables, another fee of this size is simply unfair."
Steven Hilton, media relations manager at the NLA, says that "we are certainly not campaigning for primary legislation about what is, for the most part, a commercial matter between two parties. I don’t think there would be appetite from the government for legislation, and we don’t call for further regulation as a matter of course, and, remember, this isn’t about letting agencies never charging landlords a fee. This is specifically about when the landlord has managed the property throughout the course of the tenancy, and the letting agent has done nothing except the paperwork to renew the same tenants."
Instead, Hilton says that an ideal result would be the Association of Residential Letting Agents (ARLA), a self-regulating body for letting agents, issuing guidelines to its members reflecting the campaign. Hilton says that landlords are powerless if they have signed a contract with a letting agent that allows the letting agent to charge this fee. However, he adds that it is perfectly reasonable to try and renegotiate, though, ultimately, landlords should check the small print. "I’m quite certain that some landlords don’t check the small print on tenancy agreements. Of course, we advise otherwise," says Hilton.
"A good relationship with a reputable letting agent can be very useful even for the experienced landlord," says Socha, "but it’s absolutely critical to check the small print at the beginning of the tenancy. If it’s too high, try and negotiate or find another letting agent. There is no good reason for a significant renewal fee that doesn’t reflect the work undertaken by the letting agents in London and the surrounding towns and cities."
"It is certainly a shock to many landlords to be presented with the charge once more, 12 months after the initial let," says Hilton. "In terms of figures, I’m not sure. But every letting agent in London and the South East operate this fee. In fact, some even then charge the £60 administration fee for the contract in addition to the percentage renewal fee.
"We think this is an opportunity for ARLA to get their house in order. So far, they have washed their hands of the issue and have said nothing. On their own, I don’t see why letting agents would deny themselves this income, but we’re hoping to exert enough pressure so they feel they should address it," he adds.
(20/2/08)
Back to top2. Waste management plans for the construction industry
From April 2008, all construction projects costing more than £300,000 will need to incorporate a site waste management plan (SWMP). An SWMP identifies who in a construction project will be responsible for resource management, what types of waste will be generated, whether such waste will be reduced, reused or recycled, which contractors will be used to ensure that the waste is recycled and disposed responsibly and legally and how the quantity of waste produced will be measured.The new regulations, which apply to a range of construction projects such as new build, maintenance, alteration or installation / removal of services such as sewerage and water, are intended to be self regulatory but will be enforced by the Environment Agency and local authorities. These enforcement bodies will have the authority to issue fines for non-compliance to the client; the person who is paying for the building work.
Jeremy Glover, a partner at Fenwick Elliot, explained that the aim of these policies "is to vastly increase the amount of recycling and refuse taking place within the construction industry". This, he said, is in keeping with a general desire to push green issues to the fore, and actively reduce waste, as demonstrated by the domestic recycling activities already being run by local authorities nationwide.
Mr Glover explained that when the plans were originally drawn up, a £250,000 minimum threshold was set; the reasoning being that "from a cost-benefit point of view, there would be no additional costs to the client if they were to carry out the stipulated recycling and reuse activities." This is born out by figures published by NetRegs: "the average eight cubic yard skip costs around £150. The average cost of what is being thrown away in that skip is over £1,200. In the UK, an average of 13 per cent of all materials delivered to sites goes into a skip without ever being used. The UK produces around 400 million tonnes of waste annually, of which about 72 million tonnes comes from construction sites".
The regulations also mention that while smaller construction projects do not legally require an SWMP, the implementation of such a plan could also help to reduce resource use and costs, albeit on a smaller scale. Mr Glover said that this is an indication that there are definite plans afoot to extend, over time, the legislation to cover all types of construction project.
There will be two types of SWMP, depending on the cost of the project. Projects costing between £300,000 and £500,000 will be managed according to simpler guidelines, whereas projects in the over-£500,000 bracket will require significant details. Mr Glover elaborated, "more detail is required for larger sites due to the increased cost benefits; there are potentially more savings to be made on larger-scale projects because there are more materials involved".
Mr Glover sees the new legislation as a good thing that, if taken seriously, will reduce waste and deliver cost savings to the construction industry: "If carried out properly, the plans should lead to benefits for everyone."
(18/2/08)
Back to top3. FSA to root out mortgage fraudsters
Mortgage fraud is on the increase says the Financial Services Authority (FSA), with a third of the 200 cases of suspected fraud referred to it from lenders going forward to enforcement action.The FSA estimates that the potential losses on repossessions connected with new-build mortgage fraud are currently around £45,000 per property. Mike Willis, a partner with the professional risk group Beachcroft, said, "Fraudsters are now exploiting opportunities in the buy-to-let market, as well as moving into larger commercial property lending, where they can make greater gains – with commensurately greater exposures for the lawyers and other professional advisers who let down their guard."
In 2006, the FSA began the Information from Lenders Project and asked lenders to inform them of brokers that they were worried about. Since then, more than 30 lenders engaged with the project and submitted more than 200 cases of suspected fraud.
One company currently under scrutiny is Morris Properties, regarding its gifted deposit and other incentives to property developers.
In one case, the company advertised a flat for £200,000; however, as an incentive to the property developer, it waived the deposit of about £30,000, but on the day of completion, it paid the £30,000 to the buyer’s solicitor, which was then joined by the mortgage lender’s money.
Within a few hours the entire amount went back to Morris Properties, so only the mortgage lender actually paid out any money for the property. Although the buyer paid only £170,000, the property was registered with the Land Registry for £199,995.
Mr Willis said, "If the total moneys actually passing in the transaction was the amount drawn down from the lender, yet (i) the lender was told that the amount passing would be (£30,000) more than that; or (ii) the Revenue were told that the total price paid was a greater figure; or (iii) the Land Registrar was told the same, so that an incorrect record was made; then there was a fraudulent deception in all three cases."
The Council of Mortgage Lenders said that lenders are not aware of gifted deposits and, if they were, may not have loaned what sometimes amount to a 100 per cent mortgage.
It is the buyer’s solicitor’s duty to inform the lenders of such deals. Morris Properties said it provided incentives with the full knowledge of solicitors acting for both lenders and purchasers.
The solicitor has a duty of care to act in the best interest of clients, said Mr Willis. "If the lender is a client of the solicitor as well as the buyer, then the solicitor will owe contractual and tortious duties to the lender, including a duty not to prefer the interests of another (the borrower / buyer) client."
The Solicitors Regulation Authority is investigating 60 solicitors firms nationwide about allegations of overvaluing and mortgage fraud.
Asked whether there should be tighter regulations, Mr Willis replied, "The fraud risk is capable of being measured, managed and policed more effectively by both lenders’ and solicitors’ authorities, but I doubt more regulation would be a useful or effective tool to achieving it."
He added, "Dishonest deception is just that, and the powers of the regulators to police or prevent it through further regulation are limited.
"In some circumstances, regulation would so obfuscate the real issues at stake in a transaction that they would be counterproductive, possibly in a greater proportion of transactions than the number where the fraud risks might be mitigated."
The FSA announced plans to launch the National Fraud Strategic Authority, which will develop policy incentives to improve the ease with which lenders and authorities can act to prevent fraud.
Mr Willis said, "If action is taken through further regulatory prohibitions (e.g. against acting for both lender and borrower) the convenience and economy of process for the majority will become compromised by the need to restrict or inhibit the opportunities for impropriety by a minority, which, provided the policing (rather than regulation) remains efficient, should remain small enough that the cumulative deficit value of the fraud risk is absorbable by the lending industry."
(14/2/08)
Back to top4. New Homes and Communities Agency to streamline housing delivery
According to the government, the new Homes and Communities Agency (HCA) will bring a joined-up approach to housing and regeneration.
The HCA will bring together the functions of English Partnerships, the national regeneration agency, and the Housing Corporation, which funds new affordable housing and regulates housing associations in England, as well as a range of work carried out by the Housing and Planning Department (the Department).
For the first time, one organisation will have responsibilities for the land and finance to deliver new housing, community facilities and infrastructure, in hopes of reducing bureaucracy and improving efficiency in the housing system.
Shabana Anwar, solicitor with Bircham Dyson Bell LLP and contributor to Butterworths Planning Law Service, said, "In addition, the HCA will also be taking over the Thames Gateway Delivery functions. In theory it makes sense for one body to be responsible for the delivery of these functions rather then a disparate number of agencies."
She added: "Hopefully, this will lead to a more coordinated and holistic approach, as well as quicker delivery. However, the agency will be taking over a large number of different functions and there is a danger that the delivery of some of these may be at the expense of others."
The announcement of the new agency follows a nine-month review by the Department in consultation with the Housing Corporation and English Partnerships. Initially called Communities England, the name HCA was thought to more accurately reflect what the new agency will deliver — renewal of the housing market, Private Finance Initiates, housing growth and urban regeneration.
Asked what problems HCA may encounter, Anwar replied, "It will need to engage effectively with both developers and local authorities, this will be its biggest challenge.
"It will also need to ensure that despite its “super quango” image it can deliver on its objectives and ensure there is effective coordination between its different functions."
Communities Secretary, Ruth Kelly, said that the new agency will further enhance the government’s agenda to ensure social mobility and economic inclusion.
She added, "With the expectation of over £4 billion of public spending at its disposal, Communities England will pioneer innovative and more efficient ways of working with our key partners in the public, private and voluntary sector to get better outcomes from public investment in places."
The HCA is part of a streamlined delivery chain to fulfil the government’s pledge to build three million greener more affordable new homes by 2020.
Anwar said: "Although an ambitious figure, it is achievable. The recent Callcutt Review of House-building Delivery (published in November 2007) confirmed that the house-building industry is capable of delivering 240,000 homes a year by 2016. However, improved partnership and cooperation between the new agency, developers and local authorities is crucial."
The HCA will also play a key role in the development of ten “eco-towns”. These will be small new towns of at least 5,000 to 20,000 homes, which will create new settlements to achieve zero carbon development and more sustainable living, using new design and architecture.
(5/2/08)
Back to top Articles
1. Once a house, always a house?
Journal: Solicitors Journal
Citation: 152 SJ 7 18
Issue date: 19 February 2008
Author: Damian Greenish
Relevant legislation: Leasehold Reform Act 1967
Summary: Looks at provisions of the Leasehold Reform Act 1967 dealing with leasehold enfranchisement. Focuses on the case of Boss Holdings Ltd v Grosvenor West End Properties [2008] UKHL 5, [2008] All ER (D) 244 (Jan) in which the issue was: what is meant by the words “designed or adapted for living in”?
Case annotations in other services: Boss Holdings Ltd v Grosvenor West End Properties [2008] UKHL 5; [2008] All ER (D) 244 (Jan)
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2. Planning policy: safe as houses?
Journal: Law Society Gazette
Citation: (2008) LS Gaz, 21 Feb, 26
Issue date: 21 February 2008
Author: Grania Langdon Down
Summary: Examines the changes proposed by a new planning bill that could appear in the statute book this summer.
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3. Parking lots
Journal: New Law Journal
Citation: 158 NLJ 239
Issue date: 15 February 2008
Author: Alec Samuels
Summary: Investigates whether the right to park is capable of existing as an easement and looks at why, in today’s car dominated society, the matter is still not absolutely clear.
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4. Home Information Packs: Picking up the pieces
Journal: Law Society Gazette
Citation: (2008) LS Gaz, 14 Feb, 23
Issue date: 14 February 2008
Author: Catherine Baksi
Summary: Explains how enterprising solicitors can capitalise on the apparent shortcomings of Home Information Packs.
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5. Housing lawyers buck property downturn
Journal: Solicitors Journal
Citation: 152 SJ 6 8
Issue date: 12 February 2008
Author: Jean-Yves Gilg
Summary: Argues that more tenants than available properties means better business for public-sector lawyers.
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6. Controversy over the promised land
Journal: Estates Gazette
Citation: 9 February 2008, 161
Issue date: 9 February 2008
Author: Simon Firth
Summary: Argues that development risks can be higher with brownfield sites owing to difficulties in dealing with potentially contaminated land. Also explains why the controversy over the government's guidance on how such land should be assessed has caused delay and unexpected expenditure for developers.
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This e-alert is not intended to provide comprehensive records of information concerning the property sector. If you have any feedback or suggestions, please email propertysection@lawsociety.org.uk. This e-alert was created in conjunction with LexisNexis UK Legal Updater Service. For further information about any of the articles, please contact claire.melvin@lexisnexis.co.uk. The views expressed by the Legal Analysis interviewees are not necessarily those of the proprietor.
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