The instant proceedings concerned, inter alia, a claim made in June 2006 by the claimant authority for possession of a commercial premises, namely 4/4A Rathbone Market, Canning Town, which it had leased to the defendant in January 2004 (see [10] and [11] of the judgment for the material parts of the lease). The lease was for a fixed term 'from and including 1 January 2003 to 28 September 2004', known in the lease as 'the term', which was, according to the same, to include 'any period of holding over or extension of it whether by statute or at common law or by agreement' (the words of extension). A clause in the lease also excluded security of tenure, as would otherwise have been provided for by virtue of sections 24-28 in part II of the Landlord and Tenant Act 1954 (the 1954 Act).
The annual rent payable under the lease was £7,500. The authority's principal ground of claim was that a notice which it had issued to the defendant in July 2005, requiring possession of the premises to be given up within 21 days of issue, had effectively terminated the defendant's right of occupation of the premises. The defendant argued, inter alia, that following the expiry of the initial fixed term on 28 September 2004, she had continued to occupy the premises under a periodic tenancy protected by the provisions of part II of the Act. The judge rejected the defendant's argument and ordered, inter alia, the defendant to give up possession of the premises to the authority (see [13] of the judgment for details of the judge's judgment). The defendant appealed.
The issue was whether, contrary to the judge's conclusion, following the termination of the initial fixed term on 28 September 2004 the defendant remained in occupation of the premises under a tenancy to which sections 24-28 of the 1954 Act applied. The defendant submitted that the judge had erred, arguing that after 28 September 2004 she was a monthly periodic tenant, even though there was no question of the parties having in fact agreed upon a new monthly tenancy; that she had held over on the terms of the lease; and that as the original tenancy was not protected under the 1954 Act neither was it protected when it was held over on the same terms. The authority contended that the defendant was wrong, and that she would, at most, have been occupying the premises after 28 September 2004 as a tenant at will.
The court ruled:
The security of tenure provisions in sections 24-28 of the 1954 Act could only be excluded if the term created by the lease was 'a term of years certain' (see [19] of the judgment).
In the instant case, the words of extension could not be disregarded as meaningless surplusage. The form of words which had been used appeared to focus naturally on the fixed term expiring on 28 September 2004; they had been intended to achieve a legal effect and a meaning should be attributed to them. In that regard, from the alternatives available, it could be said that the words of extension had had the effect of defining 'the term' as including any period of holding over or extension. If they did not mean that it was difficult to see what else they could have meant.
Accordingly, the lease had created a tenancy for a term of years certain until 28 September 2004 plus, by the words of extension, any further period of holding over or extension. However, a term of that nature could not be regarded as 'a term of years certain' in the true sense. The consequence was that 'the term' created by the lease had not been contracted out of sections 24-28 of the 1954 Act at all, and the judge's decision to different effect was wrong. So far as the authority's 'tenancy at will' contention was concerned, that had to fail in any event given that to succeed on that basis it had to have been shown that the defendant could have been removed at will. The words of extension meant that the defendant had held over on the terms of the lease so far as applicable; of relevance was the fact that one of those terms was that the defendant was entitled to 21 days' notice of termination of her occupation of the premises (see [22]-[24] of the judgment).
It followed that judgment would be entered for the defendant in respect of her appeal relating to 4/4A Rathbone Market and the aspect of the judge's order which had required the defendant to give up possession of the premises to the authority would be set aside (see [25] of the judgment).
Wheeler v Mercer [1956] 3 All ER 631 considered; Hagee (London) Ltd v AB Erikson and Larson [1975] 3 All ER 234 considered; Nicholls v Kinsey [1994] QB 600 considered.
Robert Chan, barrister
Published date: 23/04/2009
McLean Estates Ltd v Earl of Aylesford
Citation: [2009] All ER (D) 164 (Apr)
Alternative citations: [2009] EWHC 697 (Ch)
Hearing date: 12 March 2009
Court: Chancery Division, Birmingham District Registry
Judge: Judge Purle QC sitting as a judge of the High Court
Representation: Martin Rodger QC (instructed by Aaron & Partners LLP) for the claimant. Keith Rowley QC and Mark West (instructed by Needham & James LLP) for the defendants.
Abstract: Sale of land – Conveyance. Chancery Division, Birmingham District Registry: The court ruled that the material in question, keuper marl, which was comprised in the land conveyed by the defendants' predecessor to the claimant's predecessor did not fall within the exception of mines and minerals in the governing 1922 conveyance on the basis that on the true construction of the relevant words in the conveyance, the parties had never contemplated that keuper marl had been a mineral within the meaning of that conveyance.
Keywords: Sale of land – Conveyance – Construction – Evidence of circumstances surrounding conveyance – Conveyance between claimant's predecessor and defendants' predecessors excepting and reserving mines and minerals – Land conveyed comprising material known as 'keuper marl' – Whether keuper marl falling within exception in conveyance.
Summary: The judgment is available at: [2009] EWHC 697 (Ch)
By a conveyance dated 30 May 1922 (the 1922 conveyance), the claimant's predecessor acquired from the defendants' predecessors, land within the Knowle Basin, known as Pasture Farm, consisting of approximately 100 acres (the site). Although the 1922 conveyance no longer existed, having been destroyed in a fire, its terms were reproduced in a subsequent conveyance of 5 November 1936 (the 1936 conveyance), which the parties agreed accurately reflected the terms of the 1922 conveyance. By the 1936 conveyance, the land was conveyed by reference to: 'All that messuage farmhouse and land with the outbuildings and premises occupied therewith and known as 'Pasture Farm' in the County of Warwick containing in the whole Ninety Eight decimal nought Eight nine (98.089) acres or thereabouts and delineated by identification purposes only in the plan annexed hereto and thereon edged pink'.
There was a later exception and reservation of the mines and minerals in the following form: 'Excepting and reserving unto the Vendor and his successors and predecessors in title all manorial rights and all mines and minerals in or under the land hereby conveyed with all such rights liberties and powers as may be necessary for winning working carrying away and disposing of the same with power to let down the surface thereof on condition of paying for all damage caused by such letting down to the buildings existing and erected thereon at the date of the [1922 conveyance]'.
The Knowle Basin lay to the south-east of Birmingham between two geographical faults. It consisted of a stratum outcrop of mercia mudstone of the triassic system. In the vicinity of the site, the mudstone was and had sometimes been overlayed by a thin veneer of glacial sand and gravel or in some places alluvium and river-terrace gravel deposits in river valleys, and in 1922 was known as 'keuper marl'. Keuper marl was thought to be, and was, suitable in 1922, the date of the relevant conveyance, for brick making. Though classified as a common clay, it was in its purest form a fine grained rock which could readily be turned into clay. There had been a general hope and expectation in 1922 that recoverable coal might be present underneath the keuper marl in the Knowle Basin, including underneath Pasture Farm. It was subsequently known that there were no recoverable coal deposits. It was therefore suggested by the claimant, who was the current owner of Pasture Farm, that the exception in the 1922 conveyance was directed primarily, if not exclusively, to the mining of coal.
The primary issue that arose for determination was whether the material known as keuper marl fell within the exception and reservation in the 1922 conveyance.
The court ruled:
Unless the meaning was clear from the four corners of the relevant instrument itself, the first duty of the court in construing a grant of mines and minerals was to try to ascertain what the phrase meant in the vernacular of 'the mining world, the commercial world and landowners at the time of the grant'. The phrase 'mines and minerals' was not a definite term, but was one that was capable of bearing a wide variety of meanings. One possible meaning that had been attributed to the word 'minerals' in established authority had been 'all such substances as are dug out of the earth by means of a mine', which remained a possible meaning in a proper context.
Where it was clearly established that, at the date of the grant, a particular vernacular meaning was attributed to the phrase 'mines and minerals' by 'the mining world, the commercial world and landowners,' the court would be predisposed to adopt that meaning. The vernacular test, however, was not a rigid test to be applied without regard to all the other terms of the instrument in question and the circumstances in which it was used: The court should never overlook the commercial background and apparent commercial purpose of the transaction.
One pointer to the parties' intentions might be to consider whether or not the substances in question were exceptional in use, in value and in character. Another pointer was the evidence as to the general state of knowledge of the relevant substance at the date of the grant and the way in which it was then regarded and treated as a commercial matter. A third, significant pointer might be derived from any express powers of working that were conferred by the instrument in question. In considering whether a grant or reservation of mines and minerals included a specified substance, it was irrelevant that the parties did not actually have that substance in mind. The test of their intention was an objective one (see [9] of the judgment).
Only by the clearest words could the owner of mines and minerals under an exception and reservation reserve to himself the right to destroy the surface of the land conveyed and thereby exclude the owner. Those words were not present in the instant case on the basis that the parties had never contemplated that keuper marl had been a mineral within the meaning of the 1922 conveyance. What the parties primarily had in mind had been coal, and the hope that the Warwickshire coalfield would be found to extend at a workable and recoverable depth beneath that land (see [23] of the judgment).
Keuper marl was not within the exception of mines and minerals in the 1922 conveyance.
Waring v Foden, Waring v Booth Crushed Gravel Co [1931] All ER Rep 291 considered; Lonsdale (Earl) v A-G [1982] 3 All ER 579 applied; Coleman v Ibstock Brick Ltd [2008] All ER (D) 217 (Feb) considered.
Neneh Munu, barrister
Published date: 23/04/2009
Legislation
Building and Approved Inspectors (Amendment) Regulations 2009LNB News 18/05/2009 25
Published date: 18 May 2009
Jurisdiction: England; Wales
Enactment citation: SI 2009/1219
Commencement date: 1 October 2009
Legislation affected: SI 2000/2531, SI 2000/2532 amended
Enabling power: Building Act 1984, sections 1, 3, 34, 35, 47, schedule 1, paragraphs 1, 2, 4, 4A, 7, 8, 10
Abstract: SI 2009/1219: Changes to requirements for demonstrating Part G (water) compliance
Summary: Concern the provisions of the Building Regulations 2000 and the Building (Approved Inspectors) Regulations 2000 dealing with water so as to:
Detailed changes are also made to requirements for demonstrating compliance.
In particular, ensure proper installation of places where drinking water is drawn off, to sinks in food preparation areas and to bidets and specify such water must be wholesome within the meaning of that term as used in water legislation in relation to the supply of water for such purposes.
Introduce a the minimum water efficiency requirement and the application of approved methodology, which uses the flow-rates of the water fittings installed and a number of standardised assumptions about their use and the use of water-using appliances to arrive at the figure for potential water use per person per day.
A thermostatic mixing valve (TMV) must be fitted on the water supply to baths in new dwellings (including those formed by a material change of use consisting of the conversion of a non-domestic building or the provision of a flat in a building).
Introduce updated and clarified guidance to aid compliance for designers, architects and building control bodies. Include a requirement for a washbasin as well as a fixed bath or shower to be provided in residential bathrooms. Also require a sink to be provided in a food preparation area.
First-tier Tribunal and Upper Tribunal (Chambers) (Amendment No 2) Order 2009
LNB News 07/05/2009 20
Published date: 7 May 2009
Jurisdiction: England; Scotland; Northern Ireland; Wales
Enactment citation: SI 2009/1021
Commencement date: 1 June 2009
Legislation affected: SI 2008/2684 amended
Enabling power: Tribunals, Courts and Enforcement Act 2007, sections 7(1), (9)
Abstract: SI 2009/1021: New Lands Chamber created in the Upper Tribunal
Summary: Amends the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008, SI 2008/2684. Adds functions relating to appeals regarding health in pregnancy grant to the functions assigned to the Social Entitlement Chamber.
Creates a new Lands Chamber in the Upper Tribunal, and allocates functions to this new chamber. Provides that where there is doubt or dispute as to the chamber in which a case should be heard, the Senior President of Tribunals may allocate the case to the most appropriate chamber.
Statutory instruments
SI 2009/1114 Upper Tribunal (Lands Chamber) Fees Order 2009
Citation: SI 2009/1114
Issuing department: Treasury
Abstract: This Order provides for the fees payable in respect of proceedings before the Lands Chamber of the Upper Tribunal. It provides for the same categories and level of fees as those that currently apply to the Lands Tribunal.
Full Text:
Made: 27th April 2009
Laid before Parliament: 30th April 2009
Coming into force: 1 June 2009
The Lord Chancellor makes this Order in exercise of the power conferred on him by section 42(1)(b) of the Tribunals Courts and Enforcement Act 2007, after consultation with the Senior President of Tribunals and the Administrative Justice and Tribunals Council in accordance with section 42(5) and with the consent of the Treasury in accordance with section 42(6).
Citation, commencement, extent, application and interpretation
1. This Order may be cited as the Upper Tribunal (Lands Chamber) Fees Order 2009 and comes into force on 1st June 2009.
2. This Order extends to England and Wales and applies to proceedings in the Lands Chamber of the Upper Tribunal established by the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008.
3. "The Rules" means the Lands Tribunal Rules 1996 and any reference in this Order to a rule by number alone means that rule in the Rules.
Fees payable
4. The fees payable in respect of proceedings before the Lands Chamber of the Upper Tribunal are set out in the Schedule to this Order.
5.--(1) A notice, application or other document in respect of which a fee is payable must be accompanied by a cheque or postal order made payable to the Tribunals Service for the amount of the fee.
(2) Otherwise, and unless the Upper Tribunal directs otherwise, a fee shall be payable by the party by whom the proceedings were commenced (without prejudice to that party's right to recover the fee from any other party pursuant to an order for costs) on receipt of notification from the Upper Tribunal.
6. The proceedings referred to in paragraphs 1, 9, 10 and 12 of the Schedule do not include an appeal against a determination by Her Majesty's Revenue and Customs under the Finance Act 1975 or a reference under sections 47(1) or 47A of the Taxes Management Act 1970.
Exceptions
7. Where it appears to the Lord Chancellor that the payment of any fee prescribed by this Order would, owing to the exceptional circumstances of the case, involve undue financial hardship, the Lord Chancellor may reduce or remit the fee.
8.--(1) Subject to paragraph (2), when a fee has been paid where, if the Lord Chancellor had been aware of all of the circumstances, the Lord Chancellor would have reduced or remitted the fee under article 7, the appropriate amount shall be refunded.
(2) No refund shall be made under paragraph (1) unless the party who paid the fee applies for a refund within 6 months of the date of payment.
(3) The Lord Chancellor may extend the period of 6 months referred to in paragraph (2) if the Lord Chancellor considers that there is good reason for an application being made after the end of that period.
By authority of the Lord Chancellor
Bridget Prentice
Parliamentary Under Secretary of State
Ministry of Justice
21st April 2009
We consent
Tony Cunningham
Dave Watts
Two of the Lords Commissioners of Her Majesty's Treasury
27th April 2009
Schedule fees
Item fee
Lodging a reference or an appeal (other than a rating appeal)
1. On lodging a notice of reference under rule 10 (notice of reference) or a notice of appeal (not being a rating appeal) under rule 6 (notice of appeal) 50
Lodging an absent owner application
2. On lodging an application for a determination under Schedule 2 to the Compulsory Purchase Act 1965 (absent or untraced owners) or section 58 of the Land Clauses Consolidation Act 1845 (compensation to absent parties to be determined by a surveyor appointed by two justices) 100
Lodging a rating appeal
3. On lodging a notice of a rating appeal under rule 6 (notice of appeal), one percent of rateable value, subject to--
(a) minimum fee
(b) maximum fee 50
5,000
Lodging a restrictive covenant application
4. On lodging an application under rule 13 (method of making application) in respect of section 84 of the Law of Property Act 1925 (power to discharge or modify restrictive covenants affecting land) 200
Lodging a rights of light application
5. On lodging an application under rule 21 (form of application) in respect of section 2 of the Rights of Light Act 1959 (registration of notice in lieu of obstruction of access of light)--
(a) for a definitive certificate
(b) for a temporary and definitive certificate 250 300
Interlocutory or consent order application
6. On lodging an interlocutory application (rule 38) (interlocutory applications) 40
7. On lodging an application for a consent order (rule 51) (consent orders) 100
Hearing a rating appeal
8. On the hearing of an appeal from the decision of a Tribunal with jurisdiction to hear rating appeals, five percent of rateable value as determined in the final order of the Tribunal, subject to--
(a) minimum fee
(b) maximum fee 100
5,000
Hearing a reference or other appeal (excluding one where the hearing fee is calculated on the basis of rental value)
9. On the hearing of a reference or an appeal against a determination or on an application for a certificate of value (excluding one where the hearing fee is calculated on the basis of rental value), two per cent of the amount awarded or determined by the Tribunal, agreed by the parties following a hearing or determined in accordance with rule 27 (determination of proceedings with a hearing), subject to--
(a) minimum fee: 100
(b) maximum fee: 5,000
Hearing a reference or other appeal where the hearing fee is calculated on the basis of rental value.
10. On the hearing of a reference or an appeal against a determination where the award is in terms of rent or other annual payment, two per cent of the annual rent or other payment determined by the Tribunal, agreed by the parties following a hearing or determined in accordance with rule 27 (determination of proceedings with a hearing), subject to--
(a) minimum fee: 100
(b) maximum fee: 5,000
Determining a restrictive covenant application
11. On the hearing of an application or the making of any order under section 84 of the Law of Property Act 1925 (power to discharge or modify restrictive covenants affecting land)--
(a) a hearing as to entitlement under section 84(3A)
(b) order without a hearing (rule 17(2) and (3))
(c) substantive hearing of an originating application
(d) engrossing Minutes of Order 250
250
350
100
Hearing (no amount awarded)
12. On the hearing or preliminary hearing of a reference or appeal (not being the determination of an application under paragraph 11 above) where either the amount determined is nil or the determination is not expressed in terms of an amount 200
Copies of documents
13. For a photocopy or certified copy of a document, or for examining a plain copy and marking as a certified copy (for each page) 1
14. For supplying published decisions to subscribers (for each page) 0.10
Taxation of costs
15. On a taxation of costs (rule 52(4) (services of notices)), for every £1 or part thereof allowed 0.05
Explanatory note
(This note is not part of the Order)
The Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 transfers the jurisdiction of the Lands Tribunal to the Upper Tribunal established by section 3 of the Tribunals, Courts and Enforcement Act 2007, and abolishes the Lands Tribunal. The First- tier Tribunal and Upper Tribunal (Chambers) Order 2008 establishes the Lands Chamber of the Upper Tribunal and assigns functions to it, those functions being the functions previously exercised by the Lands Tribunal. This Order provides for the fees payable in proceedings in the Lands Chamber of the Upper Tribunal. The fees are payable in respect of the same matters, and are set at the same levels, as the fees that were previously payable in proceedings in the Lands Tribunal under the Lands Tribunal (Fees) Rules 1996.
Explanatory memorandum to SI 2009/1021 and SI 2009/1114
1. This explanatory memorandum has been prepared by the Ministry of Justice and is laid before Parliament by Command of Her Majesty.
2. Purpose of the instruments
2.1 The First-tier and Upper Tribunal (Chambers) (Amendment No.2) Order ("the Chambers Order") creates the Lands Chamber in the Upper Tribunal and allocates functions to this new chamber. The Upper Tribunal (Lands Chamber) Fees Order 2009 ("the Fees Order") provides for the fees payable in respect of proceedings before the Lands Chamber of the Upper Tribunal.
3. Matters of special interest to the Joint Committee on Statutory Instruments
3.1 None
4. Legislative Context
4.1 The jurisdiction of the Lands Tribunal is being transferred into the Lands Chamber of the Upper Tribunal as part of an ongoing series of transfers of tribunals into the new tribunal structure created by the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"). These Orders, together with the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 ("the Transfer Order"), put in place the legislation necessary to give effect to this transfer.
4.2 Part 1 of the 2007 Act creates a new two tier tribunal system into which existing tribunals can be transferred or new appeal rights directed. Chapter 3 of Part 1 provides a number of order making powers to effect the transfer of existing tribunals into this system. Section 3 establishes the First-tier Tribunal and the Upper Tribunal. Section 30 allows for the Lord Chancellor to transfer functions of tribunals listed in Schedule 6 of the 2007 Act to either or both of these two Tribunals.
4.3 The first jurisdictions transferred into the new structure on 3 November 2008. The orders that came into force to implement this change can be found at http://www.tribunals.gov.uk/Tribunals/Rules/rules.htm.
Further transfer orders are planned before the end of 2009.
5. Territorial Extent and Application
5.1 The Chambers Order extends to the UK.
5.2 The Fees Order extends to England and Wales.
6. European Convention on Human Rights
As the instruments are subject to negative resolution procedure and do not amend primary legislation, no statement is required.
7. Policy background
What is being done and why
7. 1 The need for reform of the tribunals system was set out in Sir Andrew Leggatt's Review 'Tribunals for Users - One System One Service' http://www.tribunals-review.org.uk/leggatthtm/leg-00.htm which found that tribunals had grown in an almost entirely haphazard way and were not organised for the benefit of users.
7.2 The 2007 Act was enacted to implement Sir Andrew Leggatt's recommendation of a single tribunals system. It created two new, generic tribunals, the First-tier Tribunal and the Upper Tribunal, into which existing tribunal jurisdictions can be transferred. The Upper Tribunal is primarily, but not exclusively, a tribunal for hearing appeals from the First-tier Tribunal. The Transfer Order transfers the jurisdiction of the Lands Tribunal into the Upper Tribunal as part of the Government's ongoing commitment to implement the provisions of the 2007 Act and provide a new tribunals structure designed to meet the needs of users.
7.3 The Chambers Order amends the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 ("the 2008 Order"). The 2008 Order organised the First-tier Tribunal and Upper Tribunal into chambers and made provision for the allocation of those tribunals' functions between the chambers. This Order creates a new Lands Chamber in the Upper Tribunal, and allocates functions to this new chamber. It also adds one category (cases related to the Health in Pregnancy Grant, provided for by the Health and Social Care Act 2008 (c.14)) to the functions allocated to the Social Entitlement Chamber of the First-tier Tribunal. Finally, it provides that where there is doubt or dispute as to the chamber in which a case should be heard, the Senior President of Tribunals may allocate the case to the most appropriate chamber.
7.4 The Fees Order provides for the fees payable in respect of proceedings before the Lands Chamber of the Upper Tribunal. It provides for the same categories and level of fees as those that currently apply to the Lands Tribunal.
Consolidation
7.5 The Chambers Order is a further amendment to the 2008 Order. Further rounds of amendments are expected as further jurisdictions are transferred into the new tribunals structure. Consolidation is planned for the 2008 Order in due course, once the content is more settled.
8. Consultation outcome
8.1 The Consultation Paper Transforming Tribunals - Implementing Part 1 of the Tribunals, Courts and Enforcement Act 2007 (CP30/07) was published on 28 November 2007 with the response published on 19 May 2008. The consultation ended on 22 February 2008 with 140 responses received. The consultation and response are available at http://www.justice.gov.uk/publications/cp3007.htm
8.2 The Government set out in the consultation its intention to preserve and enhance the special qualities of the Lands Tribunal within the new structure with priority given to continuity (see paragraphs 184-185 on page 38 of the consultation). It proposed a three chamber structure for the Upper Tribunal, recreating the Lands Tribunal substantially unchanged as the Lands Chamber of the Upper Tribunal. The consultation did not ask a specific question on the transfer of the Lands Tribunal. However, 61 respondents provided a response on the proposals for the three-chamber structure for the Upper Tribunal and 52 were in support.
8.3 The Senior President of Tribunals and the President of the Lands Tribunal have been consulted during the development of both Orders and on their final version. The Senior President of Tribunals has concurred with the making of the Chambers Order. The Administrative Justice and Tribunals Council have been consulted on the fees order and considered the Chambers Order.
8.4 Other Government Departments have been consulted on the functions allocated by the Chamber Order. Two of the Lords Commissioners of Her Majesty's Treasury have consented to the fees order.
9. Guidance
9.1 No new guidance has been provided as users should see little change in procedure at the point of transfer. Lands Tribunal stakeholders have received correspondence outlining the background to the change and explaining the implications.
10. Impact
10.1 The impact on business, charities or voluntary bodies is nil.
10.2 The impact on the public sector is nil.
10.3 An Impact Assessment has not been prepared for this instrument. A Regulatory Impact Assessment (RIA) was prepared for the Tribunals, Courts and Enforcement Act. This can be found at: http://www.justice.gov.uk/publications/tribunalscourtsandenforcementact.htm (see pages 2 -14 for the tribunals element of the RIA)
In terms of this order, the RIA confirmed that the legislation would create a new flexible overarching statutory framework for tribunals bringing tribunals together in one organisation. No additional costs have been identified from the setting up of the Upper Tribunal in the first 3 years (see paragraph 1.63 of the RIA), and no further costs have been identified to change this assumption.
11. Regulating small business
11.1 The legislation does not impact upon small businesses.
12. Monitoring & review
12.1 The impact of this SI and the Transfer Order will be monitored and reviewed as part of the annual report of the Tribunals Service, which measures performance against key indicators. In addition an annual report by the Senior President of Tribunals is published. This will include matters relating to the Lands Chamber of the Upper Tribunal where the Senior President considers this appropriate.
13. Contact
Gillian Brooks at the Ministry of Justice Tel: 020 3334 3104 or email: Gillian.brooks@justice.gsi.gov.uk can answer any queries regarding the instrument.
Published date
06/05/2009
SI 2009/1021 First-tier Tribunal and Upper Tribunal (Chambers) (Amendment No 2) Order 2009
Citation: SI 2009/1021
Issuing department: Treasury
Abstract: This Order creates the Lands Chamber in the Upper Tribunal and allocates functions to this new chamber.
Full Text:
Made: 28th April 2009
Laid before Parliament: 30th April 2009
Coming into force: 1st June 2009
The Lord Chancellor, with the concurrence of the Senior President of Tribunals, makes the following Order in exercise of the power conferred by section 7(1) and (9) of the Tribunals, Courts and Enforcement Act 2007.
Citation and commencement
1. This order may be cited as the First-tier Tribunal and Upper Tribunal (Chambers) (Amendment No. 2) Order 2009 and comes into force on 1st June 2009.
Amendments to the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008
2. The First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 is amended as follows.
3. In article 3(c) (functions of the Social Entitlement Chamber) after "vaccine damage payment," insert "health in pregnancy grant,".
4. In article 6 (Upper Tribunal Chambers) after sub-paragraph (b) insert--
"(c) the Lands Chamber.".
5. After article 8 (functions of the Finance and Tax Chamber) insert--
"Functions of the Lands Chamber
9. To the Lands Chamber are assigned--
(a) all functions relating to--
(i) compensation and other remedies for measures taken which affect the ownership, value, enjoyment or use of land or water, or of rights over or property on land or water;
(ii) appeals from decisions of leasehold valuation tribunals, residential property tribunals and valuation tribunals;
(iii) appeals on questions of the value of land or interests in land arising in tax proceedings; and
(iv) proceedings in respect of restrictive covenants, blight notices or the obstruction of light;
(b) the Upper Tribunal's function as arbitrator under section 1(5) of the Lands Tribunal Act 1949; and
(c) any other functions transferred to the Upper Tribunal by the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009.
Resolution of doubt or dispute as to chamber
10. If there is any doubt or dispute as to the chamber in which a particular matter is to be dealt with, the Senior President of Tribunals may allocate that matter to the chamber which appears to the Senior President of Tribunals to be most appropriate.".
By authority of the Lord Chancellor
Bridget Prentice
Parliamentary Under Secretary of State
Ministry of Justice
21st April 2009
I concur
Robert Carnwath
Senior President of Tribunals
28th April 2009
Explanatory memorandum
(This note is not part of the Order)
This Order amends the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 (the "2008 Order"). The 2008 Order organised the First-tier Tribunal and Upper Tribunal into chambers and made provision for the allocation of those tribunals' functions between the chambers. This adds functions relating to appeals regarding health in pregnancy grant to the functions assigned to the Social Entitlement Chamber. It also creates a new Lands Chamber in the Upper Tribunal, and allocates functions to this new chamber. Finally, the Order provides that where there is doubt or dispute as to the chamber in which a case should be heard, the Senior President of Tribunals may allocate the case to the most appropriate chamber.
Explanatory memorandum to SI 2009/1021 & SI 2009/1114
1. This explanatory memorandum has been prepared by the Ministry of Justice and is laid before Parliament by Command of Her Majesty.
2. Purpose of the instruments
2.1 The First-tier and Upper Tribunal (Chambers) (Amendment No.2) Order ("the Chambers Order") creates the Lands Chamber in the Upper Tribunal and allocates functions to this new chamber. The Upper Tribunal (Lands Chamber) Fees Order 2009 ("the Fees Order") provides for the fees payable in respect of proceedings before the Lands Chamber of the Upper Tribunal.
3. Matters of special interest to the Joint Committee on Statutory Instruments
3.1 None
4. Legislative Context
4.1 The jurisdiction of the Lands Tribunal is being transferred into the Lands Chamber of the Upper Tribunal as part of an ongoing series of transfers of tribunals into the new tribunal structure created by the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"). These Orders, together with the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 ("the Transfer Order"), put in place the legislation necessary to give effect to this transfer.
4.2 Part 1 of the 2007 Act creates a new two tier tribunal system into which existing tribunals can be transferred or new appeal rights directed. Chapter 3 of Part 1 provides a number of order making powers to effect the transfer of existing tribunals into this system. Section 3 establishes the First-tier Tribunal and the Upper Tribunal. Section 30 allows for the Lord Chancellor to transfer functions of tribunals listed in Schedule 6 of the 2007 Act to either or both of these two Tribunals.
4.3 The first jurisdictions transferred into the new structure on 3 November 2008. The orders that came into force to implement this change can be found at http://www.tribunals.gov.uk/Tribunals/Rules/rules.htm. Further transfer orders are planned before the end of 2009.
5. Territorial Extent and Application
5.1 The Chambers Order extends to the UK.
5.2 The Fees Order extends to England and Wales.
6. European Convention on Human Rights
As the instruments are subject to negative resolution procedure and do not amend primary legislation, no statement is required.
7. Policy background
What is being done and why
7. 1 The need for reform of the tribunals system was set out in Sir Andrew Leggatt's Review 'Tribunals for Users - One System One Service' http://www.tribunals-review.org.uk/leggatthtm/leg-00.htm which found that tribunals had grown in an almost entirely haphazard way and were not organised for the benefit of users.
7.2 The 2007 Act was enacted to implement Sir Andrew Leggatt's recommendation of a single tribunals system. It created two new, generic tribunals, the First-tier Tribunal and the Upper Tribunal, into which existing tribunal jurisdictions can be transferred. The Upper Tribunal is primarily, but not exclusively, a tribunal for hearing appeals from the First-tier Tribunal. The Transfer Order transfers the jurisdiction of the Lands Tribunal into the Upper Tribunal as part of the Government's ongoing commitment to implement the provisions of the 2007 Act and provide a new tribunals structure designed to meet the needs of users.
7.3 The Chambers Order amends the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 ("the 2008 Order"). The 2008 Order organised the First-tier Tribunal and Upper Tribunal into chambers and made provision for the allocation of those tribunals' functions between the chambers. This Order creates a new Lands Chamber in the Upper Tribunal, and allocates functions to this new chamber. It also adds one category (cases related to the Health in Pregnancy Grant, provided for by the Health and Social Care Act 2008 (c.14)) to the functions allocated to the Social Entitlement Chamber of the First-tier Tribunal. Finally, it provides that where there is doubt or dispute as to the chamber in which a case should be heard, the Senior President of Tribunals may allocate the case to the most appropriate chamber.
7.4 The Fees Order provides for the fees payable in respect of proceedings before the Lands Chamber of the Upper Tribunal. It provides for the same categories and level of fees as those that currently apply to the Lands Tribunal.
Consolidation
7.5 The Chambers Order is a further amendment to the 2008 Order. Further rounds of amendments are expected as further jurisdictions are transferred into the new tribunals structure. Consolidation is planned for the 2008 Order in due course, once the content is more settled.
8. Consultation outcome
8.1 The Consultation Paper Transforming Tribunals - Implementing Part 1 of the Tribunals, Courts and Enforcement Act 2007 (CP30/07) was published on 28 November 2007 with the response published on 19 May 2008. The consultation ended on 22 February 2008 with 140 responses received. The consultation and response are available at http://www.justice.gov.uk/publications/cp3007.htm
8.2 The Government set out in the consultation its intention to preserve and enhance the special qualities of the Lands Tribunal within the new structure with priority given to continuity (see paragraphs 184-185 on page 38 of the consultation). It proposed a three chamber structure for the Upper Tribunal, recreating the Lands Tribunal substantially unchanged as the Lands Chamber of the Upper Tribunal. The consultation did not ask a specific question on the transfer of the Lands Tribunal. However, 61 respondents provided a response on the proposals for the three-chamber structure for the Upper Tribunal and 52 were in support.
8.3 The Senior President of Tribunals and the President of the Lands Tribunal have been consulted during the development of both Orders and on their final version. The Senior President of Tribunals has concurred with the making of the Chambers Order. The Administrative Justice and Tribunals Council have been consulted on the fees order and considered the Chambers Order.
8.4 Other Government Departments have been consulted on the functions allocated by the Chamber Order. Two of the Lords Commissioners of Her Majesty's Treasury have consented to the fees order.
9. Guidance
9.1 No new guidance has been provided as users should see little change in procedure at the point of transfer. Lands Tribunal stakeholders have received correspondence outlining the background to the change and explaining the implications.
10. Impact
10.1 The impact on business, charities or voluntary bodies is nil.
10.2 The impact on the public sector is nil.
10.3 An Impact Assessment has not been prepared for this instrument. A Regulatory Impact Assessment (RIA) was prepared for the Tribunals, Courts and Enforcement Act. This can be found at: http://www.justice.gov.uk/publications/tribunalscourtsandenforcementact.htm (see pages 2 -14 for the tribunals element of the RIA)
In terms of this order, the RIA confirmed that the legislation would create a new flexible overarching statutory framework for tribunals bringing tribunals together in one organisation. No additional costs have been identified from the setting up of the Upper Tribunal in the first 3 years (see paragraph 1.63 of the RIA), and no further costs have been identified to change this assumption.
11. Regulating small business
11.1 The legislation does not impact upon small businesses.
12. Monitoring & review
12.1 The impact of this SI and the Transfer Order will be monitored and reviewed as part of the annual report of the Tribunals Service, which measures performance against key indicators. In addition an annual report by the Senior President of Tribunals is published. This will include matters relating to the Lands Chamber of the Upper Tribunal where the Senior President considers this appropriate.
13. Contact
Gillian Brooks at the Ministry of Justice Tel: 020 3334 3104 or email: Gillian.brooks@justice.gsi.gov.uk can answer any queries regarding the instrument.
Published date: 06/05/2009
Features
E-transactions have arrived
LNB News 13/05/2009 9
Published date: 13 May 2009
Jurisdiction: UK
Related digests: LNB News 09/07/2008 55
Abstract: The first mortgage to be signed electronically has been registered by the Land Registry. Lucy Trevelyan discusses the issues.
Analysis: Sharon Buthlay, property lawyer at CMS Ltd says the signing of deeds electronically will speed up the completion of the transaction and the registration of the charge but that there are drawbacks as well as advantages.
She says: "The benefits are that the charge can be emailed, signed electronically and returned via email which avoids printing, postage and saves time. The drawbacks are that clients should be properly advised by a solicitor in writing before signing any legal charge. There is potentially a risk that clients would not be properly advised if the practice became widespread. There is also potentially an increased risk of mortgage fraud."
Jonathan Stokes, senior partner at Fasttrac Solicitors, the firm that lodged the 'e-charge', says that registration of one legal charge is a small event but that in the wider picture, it is very significant.
"It is indicative of the move from paper-based systems to e-conveyancing," he says. "The requirement to sign the mortgage on paper was the last shackle to be broken before moving to an entirely e-based paper-free system of remortgaging. As a result of proving the concept of e-charges in the near future we will be able to complete remortgages with paper and pen being excluded from the process."
The long-term significance of the e-charge is that other conveyancing transactions will follow, he says. "The trickle of e-transactions will become a flood and there will be a quantum leap forward in remortgage processing, which will eventually influence sale and purchase conveyancing," he says.
He predicts that conveyancing professionals will view e-charges with some scepticism. "The reaction will vary considerably between those who are dealing with higher and lower volumes. The benefits for the conveyancer of an e-charge, where volumes are lower and time is not of the essence, are less obvious."
He says members of the public--particularly those comfortable with online shopping and banking will welcome e-charges: they are convenient because witnesses are not required and the task can be completed in a quiet moment online, without involving third parties or postal/courier systems.
Those who are less familiar with online systems will be more anxious, he concedes, although the new procedure does not throw up new data protection issues. He says: "At this stage, we do not think there are any new issues. Personal data has to be protected carefully but the process does not involve disclosure of data to third parties beyond those entries which have to appear in the public registers."
The Land Registry, he says, has endeavoured to create a secure system. "At the borrower level, the risks of an e-signature are consistent with those of a paper signature. The risk is that, where there are joint borrowers, a single borrower handles all of the process and even signs for joint borrowers."
In a paper-based system, he says, an individual committing fraud may have to secure the participation of a third party, although a determined fraudster would circumvent this. "E-signature does not use witnesses, which perhaps makes the process more vulnerable to fraud. Time will tell if this is a real concern."
The Land Registry has taken steps to create a secure environment, he says and the system gives a unique pin number to a unique document and a unique signature number usable only by the registered user to which it applies and for the particular legal charge created. He says: "The Land Registry has endeavoured to create an e-signature which is not susceptible to fraud, particularly casual fraud. The situation will no doubt be monitored carefully."
It is difficult to see how any system could protect against the fraud of identity theft though, he says. "That is fraud which goes well beyond the signing process itself. The Land Registry has begun to address this issue generally, by introducing a requirement that transactions submitted to the Land Registry are supported by validation of the identity of parties, through representation by an authorised conveyancer, or proof of identity."
For further information on this topic see: www.conferencesandtraining.com/en/Browse-Events/Law/E-Conveyancing-and-Mortgage-Fraud
FSA bans 17th individual from financial services work in 2009
LNB News 06/05/2009 7
Published date: 6 May 2009
Jurisdiction: UK
Related digests: LNB News 30/04/2008 17; LNB News 28/11/2008 58
Abstract: The Financial Services Authority has just banned two more mortgage brokers from performing 'controlled functions', amongst the harshest of the penalties it can give. But Philip Ryley of Michelmores says it is still too early to say if the FSA is succeeding in cracking down on mortgage fraud. Neasa MacErlean reports
Analysis: When Peter and James Dean were given unlimited bans by the Financial Services Authority (FSA) on 8 April, it brought the total number of individuals banned this year to 17. For its part the FSA sees this as a demonstration of its success in the field. Georgina Philippou, head of retail enforcement at the FSA, says: "As part of our crackdown on financial crime in the mortgage market we have banned a number of mortgage brokers and others in the last year and we will continue to make examples of people, including by bans and fines, who either commit mortgage fraud or fail to prevent their firm from being used to further financial crime."
However, Philip Ryley, head of financial services and markets at commercial law firm Michelmores LLP, is not so convinced. He does not want to comment on individual cases but says: "The FSA has always intimated that it will be tough on financial crime and that includes mortgage fraud. It has been working with lenders to identify mortgage fraud and we have seen more enforcement action being taken by the FSA against the perpetrators in the past year. However, while it may be taking action against some of the regulated brokers, one has to ask whether the FSA has been overall successful in reducing the extent to which it has been possible for a regulated business to be used for a purpose connected with financial crime, which is one of its statutory objectives. It is too early to judge the FSA on this at present. Maybe more enforcement action is in the pipeline."
In the Peter and James Dean case the two men were held by the FSA not to be "fit and proper" persons to carry out "any functions in relation to regulated activities". James Dean was found to have submitted "false information" on his income on his own mortgage application and to have signed off mortgage applications made by a third party without checking them. Peter Dean, who faces the extra penalty of a £17,500 fine, was deemed by the FSA to have failed on nine different counts relating to lack of supervision within his firm, including failing "to notice, and therefore to prevent, false information being supplied to mortgage lenders by UKFH [his firm]".
There have been suggestions in the media that during the height of the property boom many mortgage intermediaries were pushing through loan applications without spending much time considering whether the income and other information on those applications was likely to be true. This was a comment made particularly of the buy-to-let market. If this is so then the Deans case could be just one of many examples of wrong-doing.
But Ryley is not convinced that other intermediaries will be much deterred by such cases or that the FSA will be pursuing them in large numbers. Deterrence depends, he says "on whether rogue mortgage traders believe that there is a real likelihood of being caught. I think this limited action is unlikely to be much of a significant deterrent."
Nevertheless, this kind of unlimited ban on working in regulated areas has a dramatic effect on the individual concerned. Ryley says: "A prohibition order is a tough and sometimes draconian measure by the FSA. It will have an immediate, substantial and adverse effect on the individual concerned and possibly a business of an employer. Basically the individual can be prevented from working in the industry again--something that is totally justified if there is clear evidence of criminal activity. However, it can be used by the FSA in other cases also (not involving criminal offences), if it considers the individual presents a significant risk to consumers or to the market place."
Liabilities of a former tenant under an AGA
LNB News 05/05/2009 48
Published date: 5 May 2009
Jurisdiction: UK
Related legislation: Bankruptcy Act 1883; Insolvency Act 1986
Related cases: Stacey v Hill [1901] 1 QB 660; Hindcastle Ltd v Barbara Attenborough Associates Ltd and others [1996] 1 All ER 737; Shaw v Doleman [2009] EWCA Civ 279, [2009] All ER (D) 34 (Apr)
Abstract: Malcolm Dowden, solicitor, LexisPSL author and member of the Property Litigation Association tells Evelyn Reid how the decision in Shaw v Doleman will affect the recession-hit property market.
Analysis: In Shaw v Doleman [2009] All ER (D) 34 (Apr) Ms Shaw had been the tenant of a ground floor lock-up shop and basement. On 9 August 2005 she assigned the tenancy to the Ceramic Cafe Limited (CCL) and at the same time executed an authorised guarantee agreement (AGA). The AGA required her to guarantee the assignee CCL's liability under the lease "throughout the period during which the Assignee is bound by the tenant covenants of the Lease".
Guarantees protect landlords against the risk of a tenant defaulting on rent payments or other lease obligations, explains Dowden, solicitor and a member of the Property Litigation Association. "Until Hindcastle v Barbara Attenborough Associates [1996] 1 All ER 737, guarantees could become worthless at the moment of greatest need when the liquidator of an insolvent tenant disclaimed the lease.
"For nearly a century authority followed Stacey v Hill [1901] 1 QB 660, where disclaimer under the Bankruptcy Act 1883 not only released the tenant from liability, but also triggered a consequential release of its guarantor. In Hindcastle the court ruled on the effect of the Insolvency Act 1986 (IA 1986) section 178(4). Disclaimer under that section ends the rights, interests and liabilities of the tenant but does not, except so far as is necessary for the purpose of releasing the tenant from any liability, affect the rights and liabilities of any other person."
In Hindcastle Lord Nicholls said that section 178(4) is a deeming provision and that where a lease is disclaimed its term is ended and the tenant's interest reverts to the landlord but that the rights and liabilities of guarantors remain as though the lease had continued.
In the present case the assignee CCL got into financial difficulties in 2007 and eventually went into liquidation on 22 August. The liquidator disclaimed the lease on 31 October.
The question before the court was: where does loss lie when a liquidator disclaims a lease? Does it fall on the landlord or on the tenant's guarantor?
Dowden says: "The former tenant claimed that her AGA liabilities came to an end when her assignee's liquidator disclaimed the lease. The AGA defined 'the liability period' as ending when the assignee 'ceased to be bound by the covenants in the lease'. The tenant's key argument was that her release was a matter of contractual interpretation, falling outside the House of Lords' ruling in Hindcastleon the effect of section 178(4) of IA 1986."
That argument failed, says Dowden. "The Court of Appeal held that the wording of the AGA, including the definition of 'the liability period', must be read in its statutory context."
Mummery LJ said that the duration of the liability period of the tenant's guarantee under the AGA was linked to whether CCL was bound by the tenant covenants of the lease. On the disclaimer, the determination, by virtue of section 178(4)(a) of IA 1986, of CCL's liability under the lease was subject to the qualification in section 178(4)(b) that, except for the purpose of releasing CCL from liability, the disclaimer had no affect on the liability of any other person. Accordingly, the liability period of the tenant's guarantee and her liability to the landlord had not been terminated under the AGA, it survived the disclaimer.
"Although the court found against the tenant the Court of Appeal confirmed that it is possible to draft an AGA so that the former tenant is expressly released on disclaimer. However, in practice, it is difficult to see why a landlord would agree to a provision that would end the guarantee on one of the main events it was taken to protect against," says Dowden.
The court also rejected the argument that release should be allowed because the landlord had failed to exercise its option (created by another clause in the AGA) to require the tenant to take up a new lease in the event of disclaimer. Dowden says: "The landlord is free to decide. The option is neither inconsistent with continuation of the guarantor's liability, nor does it indicate that the parties intended that liability to come to an end on disclaimer."
Property claim upheld despite 'without prejudice' letter
LNB News 01/05/2009 44
Published date: 1 May 2009
Jurisdiction: UK
Related cases: Ofulue v Bossert [2009] UKHL 16, [2009] All ER (D) 119 (Mar)
Abstract: The House of Lords has ruled that owners of a property could not use a "without prejudice" letter as evidence that an occupier disputing possession proceedings had acknowledged that they owned the property. Sarah Hung, a solicitor with RFB Solicitors, explains the case to Jonathan Watson.
Analysis: In Ofulue and Another v Bossert, Emmanuel and Agnes Ofulue appealed against the Court of Appeal's decision in 2008 to dismiss their appeal against a ruling that the title to a property in London should be amended to show Erica Bossert as the registered owner instead of them. The Ofulues based their appeal on a "without prejudice" letter Bossert sent them in 1992 in response to previous possession proceedings. They argued that as Bossert offered to buy the property in the letter, she had effectively acknowledged that they were the rightful owners. They felt that this defeated her claim--upheld by the Court of Appeal--that the title of the property should pass to her because of 12 years' adverse possession. However, the House of Lords ruled by a majority in favour of Bossert.
Sarah Hung is a solicitor with RFB Solicitors, who acted for Ms Bossert. "The most important aspect of the case was the 'without prejudice' ruling," she says. "The question was whether a 'without prejudice' letter could be regarded as unconnected with the main proceedings and whether the fact that it's unconnected to the main proceedings means that it cannot be admitted as evidence. In this case, the answer is that it cannot.
In other cases with a similar background, lawyers can now be more confident about the 'without prejudice' rule, the principles behind it and the privileges it affords.
One would suspect there might be an argument on the other side to say 'without prejudice' is an acknowledgement of title. The fact that a tenant has offered to purchase a property from a landowner does mean they accept the landowner owns it and that they hope to settle the matter by offering money. Despite the fact that the 'without prejudice' letter was sent in relation to previous proceedings, that protection was extended to Ms Bossert in the later proceedings. That should make many lawyers realise that they do not need to be afraid of relying upon the 'without prejudice' rule, despite the fact that the 'without prejudice' letter was used in previous proceedings and not in the main proceedings.
The case was unusual in that there were two proceedings, one of which became stale-date because no one pursued it. The landowners were criticised for not taking sufficient steps to take the property back. If they had done that in the first set of proceedings then Ms Bossert would not have been in a position to claim adverse possession successfully. So the 'without prejudice' rule really did affect the outcome of the claim. Had the Lords said that the 'without prejudice' letter should be admitted as evidence and could be relied upon, the outcome might have been different.
One other point worth noting is that under the new legislation, adverse possession has to be 10 years. This case fell under the old legislation where it had to be 12 years. It will be more difficult in future for people to claim adverse possession."
Reits get no help to set up cash buffers through budget
LNB News 24/04/2009 16
Published date: 24 April 2009
Jurisdiction: UK
Related digests: LNB News 22/04/2009 88
Abstract: Pubs will find it very difficult to join the Real Estate Investment Trust (Reits) regime after the Budget changed the rules. But Peter Cosmetatos of the British Property Federation wishes the Chancellor had also made some positive changes, as he tells Neasa MacErlean.
Analysis: One of the most complicated and under-reported areas of the Budget this time round has been the changes made to Reits. What happened, in fact, is that the Chancellor made a handful of changes that were essentially clearing up mistakes or loopholes. So, Reits will now be able to issue convertible preference shares--something that they were supposed to be able to do but an error in the legislation prevented them from doing. That was addressed in the Budget.
The annual rent payable under the lease was £7,500. The authority's principal ground of claim was that a notice which it had issued to the defendant in July 2005, requiring possession of the premises to be given up within 21 days of issue, had effectively terminated the defendant's right of occupation of the premises. The defendant argued, inter alia, that following the expiry of the initial fixed term on 28 September 2004, she had continued to occupy the premises under a periodic tenancy protected by the provisions of part II of the Act. The judge rejected the defendant's argument and ordered, inter alia, the defendant to give up possession of the premises to the authority (see [13] of the judgment for details of the judge's judgment). The defendant appealed.
The issue was whether, contrary to the judge's conclusion, following the termination of the initial fixed term on 28 September 2004 the defendant remained in occupation of the premises under a tenancy to which sections 24-28 of the 1954 Act applied. The defendant submitted that the judge had erred, arguing that after 28 September 2004 she was a monthly periodic tenant, even though there was no question of the parties having in fact agreed upon a new monthly tenancy; that she had held over on the terms of the lease; and that as the original tenancy was not protected under the 1954 Act neither was it protected when it was held over on the same terms. The authority contended that the defendant was wrong, and that she would, at most, have been occupying the premises after 28 September 2004 as a tenant at will.
The court ruled:
The security of tenure provisions in sections 24-28 of the 1954 Act could only be excluded if the term created by the lease was 'a term of years certain' (see [19] of the judgment).
In the instant case, the words of extension could not be disregarded as meaningless surplusage. The form of words which had been used appeared to focus naturally on the fixed term expiring on 28 September 2004; they had been intended to achieve a legal effect and a meaning should be attributed to them. In that regard, from the alternatives available, it could be said that the words of extension had had the effect of defining 'the term' as including any period of holding over or extension. If they did not mean that it was difficult to see what else they could have meant.
Accordingly, the lease had created a tenancy for a term of years certain until 28 September 2004 plus, by the words of extension, any further period of holding over or extension. However, a term of that nature could not be regarded as 'a term of years certain' in the true sense. The consequence was that 'the term' created by the lease had not been contracted out of sections 24-28 of the 1954 Act at all, and the judge's decision to different effect was wrong. So far as the authority's 'tenancy at will' contention was concerned, that had to fail in any event given that to succeed on that basis it had to have been shown that the defendant could have been removed at will. The words of extension meant that the defendant had held over on the terms of the lease so far as applicable; of relevance was the fact that one of those terms was that the defendant was entitled to 21 days' notice of termination of her occupation of the premises (see [22]-[24] of the judgment).
It followed that judgment would be entered for the defendant in respect of her appeal relating to 4/4A Rathbone Market and the aspect of the judge's order which had required the defendant to give up possession of the premises to the authority would be set aside (see [25] of the judgment).
Wheeler v Mercer [1956] 3 All ER 631 considered; Hagee (London) Ltd v AB Erikson and Larson [1975] 3 All ER 234 considered; Nicholls v Kinsey [1994] QB 600 considered.
Robert Chan, barrister
Published date: 23/04/2009
McLean Estates Ltd v Earl of Aylesford
Citation: [2009] All ER (D) 164 (Apr)
Alternative citations: [2009] EWHC 697 (Ch)
Hearing date: 12 March 2009
Court: Chancery Division, Birmingham District Registry
Judge: Judge Purle QC sitting as a judge of the High Court
Representation: Martin Rodger QC (instructed by Aaron & Partners LLP) for the claimant. Keith Rowley QC and Mark West (instructed by Needham & James LLP) for the defendants.
Abstract: Sale of land – Conveyance. Chancery Division, Birmingham District Registry: The court ruled that the material in question, keuper marl, which was comprised in the land conveyed by the defendants' predecessor to the claimant's predecessor did not fall within the exception of mines and minerals in the governing 1922 conveyance on the basis that on the true construction of the relevant words in the conveyance, the parties had never contemplated that keuper marl had been a mineral within the meaning of that conveyance.
Keywords: Sale of land – Conveyance – Construction – Evidence of circumstances surrounding conveyance – Conveyance between claimant's predecessor and defendants' predecessors excepting and reserving mines and minerals – Land conveyed comprising material known as 'keuper marl' – Whether keuper marl falling within exception in conveyance.
Summary: The judgment is available at: [2009] EWHC 697 (Ch)
By a conveyance dated 30 May 1922 (the 1922 conveyance), the claimant's predecessor acquired from the defendants' predecessors, land within the Knowle Basin, known as Pasture Farm, consisting of approximately 100 acres (the site). Although the 1922 conveyance no longer existed, having been destroyed in a fire, its terms were reproduced in a subsequent conveyance of 5 November 1936 (the 1936 conveyance), which the parties agreed accurately reflected the terms of the 1922 conveyance. By the 1936 conveyance, the land was conveyed by reference to: 'All that messuage farmhouse and land with the outbuildings and premises occupied therewith and known as 'Pasture Farm' in the County of Warwick containing in the whole Ninety Eight decimal nought Eight nine (98.089) acres or thereabouts and delineated by identification purposes only in the plan annexed hereto and thereon edged pink'.
There was a later exception and reservation of the mines and minerals in the following form: 'Excepting and reserving unto the Vendor and his successors and predecessors in title all manorial rights and all mines and minerals in or under the land hereby conveyed with all such rights liberties and powers as may be necessary for winning working carrying away and disposing of the same with power to let down the surface thereof on condition of paying for all damage caused by such letting down to the buildings existing and erected thereon at the date of the [1922 conveyance]'.
The Knowle Basin lay to the south-east of Birmingham between two geographical faults. It consisted of a stratum outcrop of mercia mudstone of the triassic system. In the vicinity of the site, the mudstone was and had sometimes been overlayed by a thin veneer of glacial sand and gravel or in some places alluvium and river-terrace gravel deposits in river valleys, and in 1922 was known as 'keuper marl'. Keuper marl was thought to be, and was, suitable in 1922, the date of the relevant conveyance, for brick making. Though classified as a common clay, it was in its purest form a fine grained rock which could readily be turned into clay. There had been a general hope and expectation in 1922 that recoverable coal might be present underneath the keuper marl in the Knowle Basin, including underneath Pasture Farm. It was subsequently known that there were no recoverable coal deposits. It was therefore suggested by the claimant, who was the current owner of Pasture Farm, that the exception in the 1922 conveyance was directed primarily, if not exclusively, to the mining of coal.
The primary issue that arose for determination was whether the material known as keuper marl fell within the exception and reservation in the 1922 conveyance.
The court ruled:
Unless the meaning was clear from the four corners of the relevant instrument itself, the first duty of the court in construing a grant of mines and minerals was to try to ascertain what the phrase meant in the vernacular of 'the mining world, the commercial world and landowners at the time of the grant'. The phrase 'mines and minerals' was not a definite term, but was one that was capable of bearing a wide variety of meanings. One possible meaning that had been attributed to the word 'minerals' in established authority had been 'all such substances as are dug out of the earth by means of a mine', which remained a possible meaning in a proper context.
Where it was clearly established that, at the date of the grant, a particular vernacular meaning was attributed to the phrase 'mines and minerals' by 'the mining world, the commercial world and landowners,' the court would be predisposed to adopt that meaning. The vernacular test, however, was not a rigid test to be applied without regard to all the other terms of the instrument in question and the circumstances in which it was used: The court should never overlook the commercial background and apparent commercial purpose of the transaction.
One pointer to the parties' intentions might be to consider whether or not the substances in question were exceptional in use, in value and in character. Another pointer was the evidence as to the general state of knowledge of the relevant substance at the date of the grant and the way in which it was then regarded and treated as a commercial matter. A third, significant pointer might be derived from any express powers of working that were conferred by the instrument in question. In considering whether a grant or reservation of mines and minerals included a specified substance, it was irrelevant that the parties did not actually have that substance in mind. The test of their intention was an objective one (see [9] of the judgment).
Only by the clearest words could the owner of mines and minerals under an exception and reservation reserve to himself the right to destroy the surface of the land conveyed and thereby exclude the owner. Those words were not present in the instant case on the basis that the parties had never contemplated that keuper marl had been a mineral within the meaning of the 1922 conveyance. What the parties primarily had in mind had been coal, and the hope that the Warwickshire coalfield would be found to extend at a workable and recoverable depth beneath that land (see [23] of the judgment).
Keuper marl was not within the exception of mines and minerals in the 1922 conveyance.
Waring v Foden, Waring v Booth Crushed Gravel Co [1931] All ER Rep 291 considered; Lonsdale (Earl) v A-G [1982] 3 All ER 579 applied; Coleman v Ibstock Brick Ltd [2008] All ER (D) 217 (Feb) considered.
Neneh Munu, barrister
Published date: 23/04/2009
Legislation
Building and Approved Inspectors (Amendment) Regulations 2009LNB News 18/05/2009 25
Published date: 18 May 2009
Jurisdiction: England; Wales
Enactment citation: SI 2009/1219
Commencement date: 1 October 2009
Legislation affected: SI 2000/2531, SI 2000/2532 amended
Enabling power: Building Act 1984, sections 1, 3, 34, 35, 47, schedule 1, paragraphs 1, 2, 4, 4A, 7, 8, 10
Abstract: SI 2009/1219: Changes to requirements for demonstrating Part G (water) compliance
Summary: Concern the provisions of the Building Regulations 2000 and the Building (Approved Inspectors) Regulations 2000 dealing with water so as to:
- introduce a minimum water efficiency requirement for new homes;
- introduce a maximum temperature requirement for water delivered to baths in new homes;
clarify and extend the provisions for the supply of water of suitable quality for hygienic purposes; and - strengthen the provisions for the safety of hot water systems.
Detailed changes are also made to requirements for demonstrating compliance.
In particular, ensure proper installation of places where drinking water is drawn off, to sinks in food preparation areas and to bidets and specify such water must be wholesome within the meaning of that term as used in water legislation in relation to the supply of water for such purposes.
Introduce a the minimum water efficiency requirement and the application of approved methodology, which uses the flow-rates of the water fittings installed and a number of standardised assumptions about their use and the use of water-using appliances to arrive at the figure for potential water use per person per day.
A thermostatic mixing valve (TMV) must be fitted on the water supply to baths in new dwellings (including those formed by a material change of use consisting of the conversion of a non-domestic building or the provision of a flat in a building).
Introduce updated and clarified guidance to aid compliance for designers, architects and building control bodies. Include a requirement for a washbasin as well as a fixed bath or shower to be provided in residential bathrooms. Also require a sink to be provided in a food preparation area.
First-tier Tribunal and Upper Tribunal (Chambers) (Amendment No 2) Order 2009
LNB News 07/05/2009 20
Published date: 7 May 2009
Jurisdiction: England; Scotland; Northern Ireland; Wales
Enactment citation: SI 2009/1021
Commencement date: 1 June 2009
Legislation affected: SI 2008/2684 amended
Enabling power: Tribunals, Courts and Enforcement Act 2007, sections 7(1), (9)
Abstract: SI 2009/1021: New Lands Chamber created in the Upper Tribunal
Summary: Amends the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008, SI 2008/2684. Adds functions relating to appeals regarding health in pregnancy grant to the functions assigned to the Social Entitlement Chamber.
Creates a new Lands Chamber in the Upper Tribunal, and allocates functions to this new chamber. Provides that where there is doubt or dispute as to the chamber in which a case should be heard, the Senior President of Tribunals may allocate the case to the most appropriate chamber.
Statutory instruments
SI 2009/1114 Upper Tribunal (Lands Chamber) Fees Order 2009
Citation: SI 2009/1114
Issuing department: Treasury
Abstract: This Order provides for the fees payable in respect of proceedings before the Lands Chamber of the Upper Tribunal. It provides for the same categories and level of fees as those that currently apply to the Lands Tribunal.
Full Text:
Made: 27th April 2009
Laid before Parliament: 30th April 2009
Coming into force: 1 June 2009
The Lord Chancellor makes this Order in exercise of the power conferred on him by section 42(1)(b) of the Tribunals Courts and Enforcement Act 2007, after consultation with the Senior President of Tribunals and the Administrative Justice and Tribunals Council in accordance with section 42(5) and with the consent of the Treasury in accordance with section 42(6).
Citation, commencement, extent, application and interpretation
1. This Order may be cited as the Upper Tribunal (Lands Chamber) Fees Order 2009 and comes into force on 1st June 2009.
2. This Order extends to England and Wales and applies to proceedings in the Lands Chamber of the Upper Tribunal established by the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008.
3. "The Rules" means the Lands Tribunal Rules 1996 and any reference in this Order to a rule by number alone means that rule in the Rules.
Fees payable
4. The fees payable in respect of proceedings before the Lands Chamber of the Upper Tribunal are set out in the Schedule to this Order.
5.--(1) A notice, application or other document in respect of which a fee is payable must be accompanied by a cheque or postal order made payable to the Tribunals Service for the amount of the fee.
(2) Otherwise, and unless the Upper Tribunal directs otherwise, a fee shall be payable by the party by whom the proceedings were commenced (without prejudice to that party's right to recover the fee from any other party pursuant to an order for costs) on receipt of notification from the Upper Tribunal.
6. The proceedings referred to in paragraphs 1, 9, 10 and 12 of the Schedule do not include an appeal against a determination by Her Majesty's Revenue and Customs under the Finance Act 1975 or a reference under sections 47(1) or 47A of the Taxes Management Act 1970.
Exceptions
7. Where it appears to the Lord Chancellor that the payment of any fee prescribed by this Order would, owing to the exceptional circumstances of the case, involve undue financial hardship, the Lord Chancellor may reduce or remit the fee.
8.--(1) Subject to paragraph (2), when a fee has been paid where, if the Lord Chancellor had been aware of all of the circumstances, the Lord Chancellor would have reduced or remitted the fee under article 7, the appropriate amount shall be refunded.
(2) No refund shall be made under paragraph (1) unless the party who paid the fee applies for a refund within 6 months of the date of payment.
(3) The Lord Chancellor may extend the period of 6 months referred to in paragraph (2) if the Lord Chancellor considers that there is good reason for an application being made after the end of that period.
By authority of the Lord Chancellor
Bridget Prentice
Parliamentary Under Secretary of State
Ministry of Justice
21st April 2009
We consent
Tony Cunningham
Dave Watts
Two of the Lords Commissioners of Her Majesty's Treasury
27th April 2009
Schedule fees
Item fee
Lodging a reference or an appeal (other than a rating appeal)
1. On lodging a notice of reference under rule 10 (notice of reference) or a notice of appeal (not being a rating appeal) under rule 6 (notice of appeal) 50
Lodging an absent owner application
2. On lodging an application for a determination under Schedule 2 to the Compulsory Purchase Act 1965 (absent or untraced owners) or section 58 of the Land Clauses Consolidation Act 1845 (compensation to absent parties to be determined by a surveyor appointed by two justices) 100
Lodging a rating appeal
3. On lodging a notice of a rating appeal under rule 6 (notice of appeal), one percent of rateable value, subject to--
(a) minimum fee
(b) maximum fee 50
5,000
Lodging a restrictive covenant application
4. On lodging an application under rule 13 (method of making application) in respect of section 84 of the Law of Property Act 1925 (power to discharge or modify restrictive covenants affecting land) 200
Lodging a rights of light application
5. On lodging an application under rule 21 (form of application) in respect of section 2 of the Rights of Light Act 1959 (registration of notice in lieu of obstruction of access of light)--
(a) for a definitive certificate
(b) for a temporary and definitive certificate 250 300
Interlocutory or consent order application
6. On lodging an interlocutory application (rule 38) (interlocutory applications) 40
7. On lodging an application for a consent order (rule 51) (consent orders) 100
Hearing a rating appeal
8. On the hearing of an appeal from the decision of a Tribunal with jurisdiction to hear rating appeals, five percent of rateable value as determined in the final order of the Tribunal, subject to--
(a) minimum fee
(b) maximum fee 100
5,000
Hearing a reference or other appeal (excluding one where the hearing fee is calculated on the basis of rental value)
9. On the hearing of a reference or an appeal against a determination or on an application for a certificate of value (excluding one where the hearing fee is calculated on the basis of rental value), two per cent of the amount awarded or determined by the Tribunal, agreed by the parties following a hearing or determined in accordance with rule 27 (determination of proceedings with a hearing), subject to--
(a) minimum fee: 100
(b) maximum fee: 5,000
Hearing a reference or other appeal where the hearing fee is calculated on the basis of rental value.
10. On the hearing of a reference or an appeal against a determination where the award is in terms of rent or other annual payment, two per cent of the annual rent or other payment determined by the Tribunal, agreed by the parties following a hearing or determined in accordance with rule 27 (determination of proceedings with a hearing), subject to--
(a) minimum fee: 100
(b) maximum fee: 5,000
Determining a restrictive covenant application
11. On the hearing of an application or the making of any order under section 84 of the Law of Property Act 1925 (power to discharge or modify restrictive covenants affecting land)--
(a) a hearing as to entitlement under section 84(3A)
(b) order without a hearing (rule 17(2) and (3))
(c) substantive hearing of an originating application
(d) engrossing Minutes of Order 250
250
350
100
Hearing (no amount awarded)
12. On the hearing or preliminary hearing of a reference or appeal (not being the determination of an application under paragraph 11 above) where either the amount determined is nil or the determination is not expressed in terms of an amount 200
Copies of documents
13. For a photocopy or certified copy of a document, or for examining a plain copy and marking as a certified copy (for each page) 1
14. For supplying published decisions to subscribers (for each page) 0.10
Taxation of costs
15. On a taxation of costs (rule 52(4) (services of notices)), for every £1 or part thereof allowed 0.05
Explanatory note
(This note is not part of the Order)
The Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 transfers the jurisdiction of the Lands Tribunal to the Upper Tribunal established by section 3 of the Tribunals, Courts and Enforcement Act 2007, and abolishes the Lands Tribunal. The First- tier Tribunal and Upper Tribunal (Chambers) Order 2008 establishes the Lands Chamber of the Upper Tribunal and assigns functions to it, those functions being the functions previously exercised by the Lands Tribunal. This Order provides for the fees payable in proceedings in the Lands Chamber of the Upper Tribunal. The fees are payable in respect of the same matters, and are set at the same levels, as the fees that were previously payable in proceedings in the Lands Tribunal under the Lands Tribunal (Fees) Rules 1996.
Explanatory memorandum to SI 2009/1021 and SI 2009/1114
1. This explanatory memorandum has been prepared by the Ministry of Justice and is laid before Parliament by Command of Her Majesty.
2. Purpose of the instruments
2.1 The First-tier and Upper Tribunal (Chambers) (Amendment No.2) Order ("the Chambers Order") creates the Lands Chamber in the Upper Tribunal and allocates functions to this new chamber. The Upper Tribunal (Lands Chamber) Fees Order 2009 ("the Fees Order") provides for the fees payable in respect of proceedings before the Lands Chamber of the Upper Tribunal.
3. Matters of special interest to the Joint Committee on Statutory Instruments
3.1 None
4. Legislative Context
4.1 The jurisdiction of the Lands Tribunal is being transferred into the Lands Chamber of the Upper Tribunal as part of an ongoing series of transfers of tribunals into the new tribunal structure created by the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"). These Orders, together with the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 ("the Transfer Order"), put in place the legislation necessary to give effect to this transfer.
4.2 Part 1 of the 2007 Act creates a new two tier tribunal system into which existing tribunals can be transferred or new appeal rights directed. Chapter 3 of Part 1 provides a number of order making powers to effect the transfer of existing tribunals into this system. Section 3 establishes the First-tier Tribunal and the Upper Tribunal. Section 30 allows for the Lord Chancellor to transfer functions of tribunals listed in Schedule 6 of the 2007 Act to either or both of these two Tribunals.
4.3 The first jurisdictions transferred into the new structure on 3 November 2008. The orders that came into force to implement this change can be found at http://www.tribunals.gov.uk/Tribunals/Rules/rules.htm.
Further transfer orders are planned before the end of 2009.
5. Territorial Extent and Application
5.1 The Chambers Order extends to the UK.
5.2 The Fees Order extends to England and Wales.
6. European Convention on Human Rights
As the instruments are subject to negative resolution procedure and do not amend primary legislation, no statement is required.
7. Policy background
What is being done and why
7. 1 The need for reform of the tribunals system was set out in Sir Andrew Leggatt's Review 'Tribunals for Users - One System One Service' http://www.tribunals-review.org.uk/leggatthtm/leg-00.htm which found that tribunals had grown in an almost entirely haphazard way and were not organised for the benefit of users.
7.2 The 2007 Act was enacted to implement Sir Andrew Leggatt's recommendation of a single tribunals system. It created two new, generic tribunals, the First-tier Tribunal and the Upper Tribunal, into which existing tribunal jurisdictions can be transferred. The Upper Tribunal is primarily, but not exclusively, a tribunal for hearing appeals from the First-tier Tribunal. The Transfer Order transfers the jurisdiction of the Lands Tribunal into the Upper Tribunal as part of the Government's ongoing commitment to implement the provisions of the 2007 Act and provide a new tribunals structure designed to meet the needs of users.
7.3 The Chambers Order amends the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 ("the 2008 Order"). The 2008 Order organised the First-tier Tribunal and Upper Tribunal into chambers and made provision for the allocation of those tribunals' functions between the chambers. This Order creates a new Lands Chamber in the Upper Tribunal, and allocates functions to this new chamber. It also adds one category (cases related to the Health in Pregnancy Grant, provided for by the Health and Social Care Act 2008 (c.14)) to the functions allocated to the Social Entitlement Chamber of the First-tier Tribunal. Finally, it provides that where there is doubt or dispute as to the chamber in which a case should be heard, the Senior President of Tribunals may allocate the case to the most appropriate chamber.
7.4 The Fees Order provides for the fees payable in respect of proceedings before the Lands Chamber of the Upper Tribunal. It provides for the same categories and level of fees as those that currently apply to the Lands Tribunal.
Consolidation
7.5 The Chambers Order is a further amendment to the 2008 Order. Further rounds of amendments are expected as further jurisdictions are transferred into the new tribunals structure. Consolidation is planned for the 2008 Order in due course, once the content is more settled.
8. Consultation outcome
8.1 The Consultation Paper Transforming Tribunals - Implementing Part 1 of the Tribunals, Courts and Enforcement Act 2007 (CP30/07) was published on 28 November 2007 with the response published on 19 May 2008. The consultation ended on 22 February 2008 with 140 responses received. The consultation and response are available at http://www.justice.gov.uk/publications/cp3007.htm
8.2 The Government set out in the consultation its intention to preserve and enhance the special qualities of the Lands Tribunal within the new structure with priority given to continuity (see paragraphs 184-185 on page 38 of the consultation). It proposed a three chamber structure for the Upper Tribunal, recreating the Lands Tribunal substantially unchanged as the Lands Chamber of the Upper Tribunal. The consultation did not ask a specific question on the transfer of the Lands Tribunal. However, 61 respondents provided a response on the proposals for the three-chamber structure for the Upper Tribunal and 52 were in support.
8.3 The Senior President of Tribunals and the President of the Lands Tribunal have been consulted during the development of both Orders and on their final version. The Senior President of Tribunals has concurred with the making of the Chambers Order. The Administrative Justice and Tribunals Council have been consulted on the fees order and considered the Chambers Order.
8.4 Other Government Departments have been consulted on the functions allocated by the Chamber Order. Two of the Lords Commissioners of Her Majesty's Treasury have consented to the fees order.
9. Guidance
9.1 No new guidance has been provided as users should see little change in procedure at the point of transfer. Lands Tribunal stakeholders have received correspondence outlining the background to the change and explaining the implications.
10. Impact
10.1 The impact on business, charities or voluntary bodies is nil.
10.2 The impact on the public sector is nil.
10.3 An Impact Assessment has not been prepared for this instrument. A Regulatory Impact Assessment (RIA) was prepared for the Tribunals, Courts and Enforcement Act. This can be found at: http://www.justice.gov.uk/publications/tribunalscourtsandenforcementact.htm (see pages 2 -14 for the tribunals element of the RIA)
In terms of this order, the RIA confirmed that the legislation would create a new flexible overarching statutory framework for tribunals bringing tribunals together in one organisation. No additional costs have been identified from the setting up of the Upper Tribunal in the first 3 years (see paragraph 1.63 of the RIA), and no further costs have been identified to change this assumption.
11. Regulating small business
11.1 The legislation does not impact upon small businesses.
12. Monitoring & review
12.1 The impact of this SI and the Transfer Order will be monitored and reviewed as part of the annual report of the Tribunals Service, which measures performance against key indicators. In addition an annual report by the Senior President of Tribunals is published. This will include matters relating to the Lands Chamber of the Upper Tribunal where the Senior President considers this appropriate.
13. Contact
Gillian Brooks at the Ministry of Justice Tel: 020 3334 3104 or email: Gillian.brooks@justice.gsi.gov.uk can answer any queries regarding the instrument.
Published date
06/05/2009
SI 2009/1021 First-tier Tribunal and Upper Tribunal (Chambers) (Amendment No 2) Order 2009
Citation: SI 2009/1021
Issuing department: Treasury
Abstract: This Order creates the Lands Chamber in the Upper Tribunal and allocates functions to this new chamber.
Full Text:
Made: 28th April 2009
Laid before Parliament: 30th April 2009
Coming into force: 1st June 2009
The Lord Chancellor, with the concurrence of the Senior President of Tribunals, makes the following Order in exercise of the power conferred by section 7(1) and (9) of the Tribunals, Courts and Enforcement Act 2007.
Citation and commencement
1. This order may be cited as the First-tier Tribunal and Upper Tribunal (Chambers) (Amendment No. 2) Order 2009 and comes into force on 1st June 2009.
Amendments to the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008
2. The First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 is amended as follows.
3. In article 3(c) (functions of the Social Entitlement Chamber) after "vaccine damage payment," insert "health in pregnancy grant,".
4. In article 6 (Upper Tribunal Chambers) after sub-paragraph (b) insert--
"(c) the Lands Chamber.".
5. After article 8 (functions of the Finance and Tax Chamber) insert--
"Functions of the Lands Chamber
9. To the Lands Chamber are assigned--
(a) all functions relating to--
(i) compensation and other remedies for measures taken which affect the ownership, value, enjoyment or use of land or water, or of rights over or property on land or water;
(ii) appeals from decisions of leasehold valuation tribunals, residential property tribunals and valuation tribunals;
(iii) appeals on questions of the value of land or interests in land arising in tax proceedings; and
(iv) proceedings in respect of restrictive covenants, blight notices or the obstruction of light;
(b) the Upper Tribunal's function as arbitrator under section 1(5) of the Lands Tribunal Act 1949; and
(c) any other functions transferred to the Upper Tribunal by the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009.
Resolution of doubt or dispute as to chamber
10. If there is any doubt or dispute as to the chamber in which a particular matter is to be dealt with, the Senior President of Tribunals may allocate that matter to the chamber which appears to the Senior President of Tribunals to be most appropriate.".
By authority of the Lord Chancellor
Bridget Prentice
Parliamentary Under Secretary of State
Ministry of Justice
21st April 2009
I concur
Robert Carnwath
Senior President of Tribunals
28th April 2009
Explanatory memorandum
(This note is not part of the Order)
This Order amends the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 (the "2008 Order"). The 2008 Order organised the First-tier Tribunal and Upper Tribunal into chambers and made provision for the allocation of those tribunals' functions between the chambers. This adds functions relating to appeals regarding health in pregnancy grant to the functions assigned to the Social Entitlement Chamber. It also creates a new Lands Chamber in the Upper Tribunal, and allocates functions to this new chamber. Finally, the Order provides that where there is doubt or dispute as to the chamber in which a case should be heard, the Senior President of Tribunals may allocate the case to the most appropriate chamber.
Explanatory memorandum to SI 2009/1021 & SI 2009/1114
1. This explanatory memorandum has been prepared by the Ministry of Justice and is laid before Parliament by Command of Her Majesty.
2. Purpose of the instruments
2.1 The First-tier and Upper Tribunal (Chambers) (Amendment No.2) Order ("the Chambers Order") creates the Lands Chamber in the Upper Tribunal and allocates functions to this new chamber. The Upper Tribunal (Lands Chamber) Fees Order 2009 ("the Fees Order") provides for the fees payable in respect of proceedings before the Lands Chamber of the Upper Tribunal.
3. Matters of special interest to the Joint Committee on Statutory Instruments
3.1 None
4. Legislative Context
4.1 The jurisdiction of the Lands Tribunal is being transferred into the Lands Chamber of the Upper Tribunal as part of an ongoing series of transfers of tribunals into the new tribunal structure created by the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"). These Orders, together with the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 ("the Transfer Order"), put in place the legislation necessary to give effect to this transfer.
4.2 Part 1 of the 2007 Act creates a new two tier tribunal system into which existing tribunals can be transferred or new appeal rights directed. Chapter 3 of Part 1 provides a number of order making powers to effect the transfer of existing tribunals into this system. Section 3 establishes the First-tier Tribunal and the Upper Tribunal. Section 30 allows for the Lord Chancellor to transfer functions of tribunals listed in Schedule 6 of the 2007 Act to either or both of these two Tribunals.
4.3 The first jurisdictions transferred into the new structure on 3 November 2008. The orders that came into force to implement this change can be found at http://www.tribunals.gov.uk/Tribunals/Rules/rules.htm. Further transfer orders are planned before the end of 2009.
5. Territorial Extent and Application
5.1 The Chambers Order extends to the UK.
5.2 The Fees Order extends to England and Wales.
6. European Convention on Human Rights
As the instruments are subject to negative resolution procedure and do not amend primary legislation, no statement is required.
7. Policy background
What is being done and why
7. 1 The need for reform of the tribunals system was set out in Sir Andrew Leggatt's Review 'Tribunals for Users - One System One Service' http://www.tribunals-review.org.uk/leggatthtm/leg-00.htm which found that tribunals had grown in an almost entirely haphazard way and were not organised for the benefit of users.
7.2 The 2007 Act was enacted to implement Sir Andrew Leggatt's recommendation of a single tribunals system. It created two new, generic tribunals, the First-tier Tribunal and the Upper Tribunal, into which existing tribunal jurisdictions can be transferred. The Upper Tribunal is primarily, but not exclusively, a tribunal for hearing appeals from the First-tier Tribunal. The Transfer Order transfers the jurisdiction of the Lands Tribunal into the Upper Tribunal as part of the Government's ongoing commitment to implement the provisions of the 2007 Act and provide a new tribunals structure designed to meet the needs of users.
7.3 The Chambers Order amends the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 ("the 2008 Order"). The 2008 Order organised the First-tier Tribunal and Upper Tribunal into chambers and made provision for the allocation of those tribunals' functions between the chambers. This Order creates a new Lands Chamber in the Upper Tribunal, and allocates functions to this new chamber. It also adds one category (cases related to the Health in Pregnancy Grant, provided for by the Health and Social Care Act 2008 (c.14)) to the functions allocated to the Social Entitlement Chamber of the First-tier Tribunal. Finally, it provides that where there is doubt or dispute as to the chamber in which a case should be heard, the Senior President of Tribunals may allocate the case to the most appropriate chamber.
7.4 The Fees Order provides for the fees payable in respect of proceedings before the Lands Chamber of the Upper Tribunal. It provides for the same categories and level of fees as those that currently apply to the Lands Tribunal.
Consolidation
7.5 The Chambers Order is a further amendment to the 2008 Order. Further rounds of amendments are expected as further jurisdictions are transferred into the new tribunals structure. Consolidation is planned for the 2008 Order in due course, once the content is more settled.
8. Consultation outcome
8.1 The Consultation Paper Transforming Tribunals - Implementing Part 1 of the Tribunals, Courts and Enforcement Act 2007 (CP30/07) was published on 28 November 2007 with the response published on 19 May 2008. The consultation ended on 22 February 2008 with 140 responses received. The consultation and response are available at http://www.justice.gov.uk/publications/cp3007.htm
8.2 The Government set out in the consultation its intention to preserve and enhance the special qualities of the Lands Tribunal within the new structure with priority given to continuity (see paragraphs 184-185 on page 38 of the consultation). It proposed a three chamber structure for the Upper Tribunal, recreating the Lands Tribunal substantially unchanged as the Lands Chamber of the Upper Tribunal. The consultation did not ask a specific question on the transfer of the Lands Tribunal. However, 61 respondents provided a response on the proposals for the three-chamber structure for the Upper Tribunal and 52 were in support.
8.3 The Senior President of Tribunals and the President of the Lands Tribunal have been consulted during the development of both Orders and on their final version. The Senior President of Tribunals has concurred with the making of the Chambers Order. The Administrative Justice and Tribunals Council have been consulted on the fees order and considered the Chambers Order.
8.4 Other Government Departments have been consulted on the functions allocated by the Chamber Order. Two of the Lords Commissioners of Her Majesty's Treasury have consented to the fees order.
9. Guidance
9.1 No new guidance has been provided as users should see little change in procedure at the point of transfer. Lands Tribunal stakeholders have received correspondence outlining the background to the change and explaining the implications.
10. Impact
10.1 The impact on business, charities or voluntary bodies is nil.
10.2 The impact on the public sector is nil.
10.3 An Impact Assessment has not been prepared for this instrument. A Regulatory Impact Assessment (RIA) was prepared for the Tribunals, Courts and Enforcement Act. This can be found at: http://www.justice.gov.uk/publications/tribunalscourtsandenforcementact.htm (see pages 2 -14 for the tribunals element of the RIA)
In terms of this order, the RIA confirmed that the legislation would create a new flexible overarching statutory framework for tribunals bringing tribunals together in one organisation. No additional costs have been identified from the setting up of the Upper Tribunal in the first 3 years (see paragraph 1.63 of the RIA), and no further costs have been identified to change this assumption.
11. Regulating small business
11.1 The legislation does not impact upon small businesses.
12. Monitoring & review
12.1 The impact of this SI and the Transfer Order will be monitored and reviewed as part of the annual report of the Tribunals Service, which measures performance against key indicators. In addition an annual report by the Senior President of Tribunals is published. This will include matters relating to the Lands Chamber of the Upper Tribunal where the Senior President considers this appropriate.
13. Contact
Gillian Brooks at the Ministry of Justice Tel: 020 3334 3104 or email: Gillian.brooks@justice.gsi.gov.uk can answer any queries regarding the instrument.
Published date: 06/05/2009
Features
E-transactions have arrived
LNB News 13/05/2009 9
Published date: 13 May 2009
Jurisdiction: UK
Related digests: LNB News 09/07/2008 55
Abstract: The first mortgage to be signed electronically has been registered by the Land Registry. Lucy Trevelyan discusses the issues.
Analysis: Sharon Buthlay, property lawyer at CMS Ltd says the signing of deeds electronically will speed up the completion of the transaction and the registration of the charge but that there are drawbacks as well as advantages.
She says: "The benefits are that the charge can be emailed, signed electronically and returned via email which avoids printing, postage and saves time. The drawbacks are that clients should be properly advised by a solicitor in writing before signing any legal charge. There is potentially a risk that clients would not be properly advised if the practice became widespread. There is also potentially an increased risk of mortgage fraud."
Jonathan Stokes, senior partner at Fasttrac Solicitors, the firm that lodged the 'e-charge', says that registration of one legal charge is a small event but that in the wider picture, it is very significant.
"It is indicative of the move from paper-based systems to e-conveyancing," he says. "The requirement to sign the mortgage on paper was the last shackle to be broken before moving to an entirely e-based paper-free system of remortgaging. As a result of proving the concept of e-charges in the near future we will be able to complete remortgages with paper and pen being excluded from the process."
The long-term significance of the e-charge is that other conveyancing transactions will follow, he says. "The trickle of e-transactions will become a flood and there will be a quantum leap forward in remortgage processing, which will eventually influence sale and purchase conveyancing," he says.
He predicts that conveyancing professionals will view e-charges with some scepticism. "The reaction will vary considerably between those who are dealing with higher and lower volumes. The benefits for the conveyancer of an e-charge, where volumes are lower and time is not of the essence, are less obvious."
He says members of the public--particularly those comfortable with online shopping and banking will welcome e-charges: they are convenient because witnesses are not required and the task can be completed in a quiet moment online, without involving third parties or postal/courier systems.
Those who are less familiar with online systems will be more anxious, he concedes, although the new procedure does not throw up new data protection issues. He says: "At this stage, we do not think there are any new issues. Personal data has to be protected carefully but the process does not involve disclosure of data to third parties beyond those entries which have to appear in the public registers."
The Land Registry, he says, has endeavoured to create a secure system. "At the borrower level, the risks of an e-signature are consistent with those of a paper signature. The risk is that, where there are joint borrowers, a single borrower handles all of the process and even signs for joint borrowers."
In a paper-based system, he says, an individual committing fraud may have to secure the participation of a third party, although a determined fraudster would circumvent this. "E-signature does not use witnesses, which perhaps makes the process more vulnerable to fraud. Time will tell if this is a real concern."
The Land Registry has taken steps to create a secure environment, he says and the system gives a unique pin number to a unique document and a unique signature number usable only by the registered user to which it applies and for the particular legal charge created. He says: "The Land Registry has endeavoured to create an e-signature which is not susceptible to fraud, particularly casual fraud. The situation will no doubt be monitored carefully."
It is difficult to see how any system could protect against the fraud of identity theft though, he says. "That is fraud which goes well beyond the signing process itself. The Land Registry has begun to address this issue generally, by introducing a requirement that transactions submitted to the Land Registry are supported by validation of the identity of parties, through representation by an authorised conveyancer, or proof of identity."
For further information on this topic see: www.conferencesandtraining.com/en/Browse-Events/Law/E-Conveyancing-and-Mortgage-Fraud
FSA bans 17th individual from financial services work in 2009
LNB News 06/05/2009 7
Published date: 6 May 2009
Jurisdiction: UK
Related digests: LNB News 30/04/2008 17; LNB News 28/11/2008 58
Abstract: The Financial Services Authority has just banned two more mortgage brokers from performing 'controlled functions', amongst the harshest of the penalties it can give. But Philip Ryley of Michelmores says it is still too early to say if the FSA is succeeding in cracking down on mortgage fraud. Neasa MacErlean reports
Analysis: When Peter and James Dean were given unlimited bans by the Financial Services Authority (FSA) on 8 April, it brought the total number of individuals banned this year to 17. For its part the FSA sees this as a demonstration of its success in the field. Georgina Philippou, head of retail enforcement at the FSA, says: "As part of our crackdown on financial crime in the mortgage market we have banned a number of mortgage brokers and others in the last year and we will continue to make examples of people, including by bans and fines, who either commit mortgage fraud or fail to prevent their firm from being used to further financial crime."
However, Philip Ryley, head of financial services and markets at commercial law firm Michelmores LLP, is not so convinced. He does not want to comment on individual cases but says: "The FSA has always intimated that it will be tough on financial crime and that includes mortgage fraud. It has been working with lenders to identify mortgage fraud and we have seen more enforcement action being taken by the FSA against the perpetrators in the past year. However, while it may be taking action against some of the regulated brokers, one has to ask whether the FSA has been overall successful in reducing the extent to which it has been possible for a regulated business to be used for a purpose connected with financial crime, which is one of its statutory objectives. It is too early to judge the FSA on this at present. Maybe more enforcement action is in the pipeline."
In the Peter and James Dean case the two men were held by the FSA not to be "fit and proper" persons to carry out "any functions in relation to regulated activities". James Dean was found to have submitted "false information" on his income on his own mortgage application and to have signed off mortgage applications made by a third party without checking them. Peter Dean, who faces the extra penalty of a £17,500 fine, was deemed by the FSA to have failed on nine different counts relating to lack of supervision within his firm, including failing "to notice, and therefore to prevent, false information being supplied to mortgage lenders by UKFH [his firm]".
There have been suggestions in the media that during the height of the property boom many mortgage intermediaries were pushing through loan applications without spending much time considering whether the income and other information on those applications was likely to be true. This was a comment made particularly of the buy-to-let market. If this is so then the Deans case could be just one of many examples of wrong-doing.
But Ryley is not convinced that other intermediaries will be much deterred by such cases or that the FSA will be pursuing them in large numbers. Deterrence depends, he says "on whether rogue mortgage traders believe that there is a real likelihood of being caught. I think this limited action is unlikely to be much of a significant deterrent."
Nevertheless, this kind of unlimited ban on working in regulated areas has a dramatic effect on the individual concerned. Ryley says: "A prohibition order is a tough and sometimes draconian measure by the FSA. It will have an immediate, substantial and adverse effect on the individual concerned and possibly a business of an employer. Basically the individual can be prevented from working in the industry again--something that is totally justified if there is clear evidence of criminal activity. However, it can be used by the FSA in other cases also (not involving criminal offences), if it considers the individual presents a significant risk to consumers or to the market place."
Liabilities of a former tenant under an AGA
LNB News 05/05/2009 48
Published date: 5 May 2009
Jurisdiction: UK
Related legislation: Bankruptcy Act 1883; Insolvency Act 1986
Related cases: Stacey v Hill [1901] 1 QB 660; Hindcastle Ltd v Barbara Attenborough Associates Ltd and others [1996] 1 All ER 737; Shaw v Doleman [2009] EWCA Civ 279, [2009] All ER (D) 34 (Apr)
Abstract: Malcolm Dowden, solicitor, LexisPSL author and member of the Property Litigation Association tells Evelyn Reid how the decision in Shaw v Doleman will affect the recession-hit property market.
Analysis: In Shaw v Doleman [2009] All ER (D) 34 (Apr) Ms Shaw had been the tenant of a ground floor lock-up shop and basement. On 9 August 2005 she assigned the tenancy to the Ceramic Cafe Limited (CCL) and at the same time executed an authorised guarantee agreement (AGA). The AGA required her to guarantee the assignee CCL's liability under the lease "throughout the period during which the Assignee is bound by the tenant covenants of the Lease".
Guarantees protect landlords against the risk of a tenant defaulting on rent payments or other lease obligations, explains Dowden, solicitor and a member of the Property Litigation Association. "Until Hindcastle v Barbara Attenborough Associates [1996] 1 All ER 737, guarantees could become worthless at the moment of greatest need when the liquidator of an insolvent tenant disclaimed the lease.
"For nearly a century authority followed Stacey v Hill [1901] 1 QB 660, where disclaimer under the Bankruptcy Act 1883 not only released the tenant from liability, but also triggered a consequential release of its guarantor. In Hindcastle the court ruled on the effect of the Insolvency Act 1986 (IA 1986) section 178(4). Disclaimer under that section ends the rights, interests and liabilities of the tenant but does not, except so far as is necessary for the purpose of releasing the tenant from any liability, affect the rights and liabilities of any other person."
In Hindcastle Lord Nicholls said that section 178(4) is a deeming provision and that where a lease is disclaimed its term is ended and the tenant's interest reverts to the landlord but that the rights and liabilities of guarantors remain as though the lease had continued.
In the present case the assignee CCL got into financial difficulties in 2007 and eventually went into liquidation on 22 August. The liquidator disclaimed the lease on 31 October.
The question before the court was: where does loss lie when a liquidator disclaims a lease? Does it fall on the landlord or on the tenant's guarantor?
Dowden says: "The former tenant claimed that her AGA liabilities came to an end when her assignee's liquidator disclaimed the lease. The AGA defined 'the liability period' as ending when the assignee 'ceased to be bound by the covenants in the lease'. The tenant's key argument was that her release was a matter of contractual interpretation, falling outside the House of Lords' ruling in Hindcastleon the effect of section 178(4) of IA 1986."
That argument failed, says Dowden. "The Court of Appeal held that the wording of the AGA, including the definition of 'the liability period', must be read in its statutory context."
Mummery LJ said that the duration of the liability period of the tenant's guarantee under the AGA was linked to whether CCL was bound by the tenant covenants of the lease. On the disclaimer, the determination, by virtue of section 178(4)(a) of IA 1986, of CCL's liability under the lease was subject to the qualification in section 178(4)(b) that, except for the purpose of releasing CCL from liability, the disclaimer had no affect on the liability of any other person. Accordingly, the liability period of the tenant's guarantee and her liability to the landlord had not been terminated under the AGA, it survived the disclaimer.
"Although the court found against the tenant the Court of Appeal confirmed that it is possible to draft an AGA so that the former tenant is expressly released on disclaimer. However, in practice, it is difficult to see why a landlord would agree to a provision that would end the guarantee on one of the main events it was taken to protect against," says Dowden.
The court also rejected the argument that release should be allowed because the landlord had failed to exercise its option (created by another clause in the AGA) to require the tenant to take up a new lease in the event of disclaimer. Dowden says: "The landlord is free to decide. The option is neither inconsistent with continuation of the guarantor's liability, nor does it indicate that the parties intended that liability to come to an end on disclaimer."
Property claim upheld despite 'without prejudice' letter
LNB News 01/05/2009 44
Published date: 1 May 2009
Jurisdiction: UK
Related cases: Ofulue v Bossert [2009] UKHL 16, [2009] All ER (D) 119 (Mar)
Abstract: The House of Lords has ruled that owners of a property could not use a "without prejudice" letter as evidence that an occupier disputing possession proceedings had acknowledged that they owned the property. Sarah Hung, a solicitor with RFB Solicitors, explains the case to Jonathan Watson.
Analysis: In Ofulue and Another v Bossert, Emmanuel and Agnes Ofulue appealed against the Court of Appeal's decision in 2008 to dismiss their appeal against a ruling that the title to a property in London should be amended to show Erica Bossert as the registered owner instead of them. The Ofulues based their appeal on a "without prejudice" letter Bossert sent them in 1992 in response to previous possession proceedings. They argued that as Bossert offered to buy the property in the letter, she had effectively acknowledged that they were the rightful owners. They felt that this defeated her claim--upheld by the Court of Appeal--that the title of the property should pass to her because of 12 years' adverse possession. However, the House of Lords ruled by a majority in favour of Bossert.
Sarah Hung is a solicitor with RFB Solicitors, who acted for Ms Bossert. "The most important aspect of the case was the 'without prejudice' ruling," she says. "The question was whether a 'without prejudice' letter could be regarded as unconnected with the main proceedings and whether the fact that it's unconnected to the main proceedings means that it cannot be admitted as evidence. In this case, the answer is that it cannot.
In other cases with a similar background, lawyers can now be more confident about the 'without prejudice' rule, the principles behind it and the privileges it affords.
One would suspect there might be an argument on the other side to say 'without prejudice' is an acknowledgement of title. The fact that a tenant has offered to purchase a property from a landowner does mean they accept the landowner owns it and that they hope to settle the matter by offering money. Despite the fact that the 'without prejudice' letter was sent in relation to previous proceedings, that protection was extended to Ms Bossert in the later proceedings. That should make many lawyers realise that they do not need to be afraid of relying upon the 'without prejudice' rule, despite the fact that the 'without prejudice' letter was used in previous proceedings and not in the main proceedings.
The case was unusual in that there were two proceedings, one of which became stale-date because no one pursued it. The landowners were criticised for not taking sufficient steps to take the property back. If they had done that in the first set of proceedings then Ms Bossert would not have been in a position to claim adverse possession successfully. So the 'without prejudice' rule really did affect the outcome of the claim. Had the Lords said that the 'without prejudice' letter should be admitted as evidence and could be relied upon, the outcome might have been different.
One other point worth noting is that under the new legislation, adverse possession has to be 10 years. This case fell under the old legislation where it had to be 12 years. It will be more difficult in future for people to claim adverse possession."
Reits get no help to set up cash buffers through budget
LNB News 24/04/2009 16
Published date: 24 April 2009
Jurisdiction: UK
Related digests: LNB News 22/04/2009 88
Abstract: Pubs will find it very difficult to join the Real Estate Investment Trust (Reits) regime after the Budget changed the rules. But Peter Cosmetatos of the British Property Federation wishes the Chancellor had also made some positive changes, as he tells Neasa MacErlean.
Analysis: One of the most complicated and under-reported areas of the Budget this time round has been the changes made to Reits. What happened, in fact, is that the Chancellor made a handful of changes that were essentially clearing up mistakes or loopholes. So, Reits will now be able to issue convertible preference shares--something that they were supposed to be able to do but an error in the legislation prevented them from doing. That was addressed in the Budget.