Fri07282017

Last updateTue, 24 Feb 2015 5pm

Emma Naughton examines two recent cases on the tricky issue of which country’s courts have jurisdiction to hear an international worker’s employment claims

As the workforce continues to become more mobile and global, it is not always clear which country’s courts or tribunals should hear an employee’s claims. This article looks at the possible impact of two recent cases dealing with the issue of territorial jurisdiction. The first, Green v SIG Trading Ltd [2017], was an Employment Appeal Tribunal (EAT) decision. The second, Nogueira v Crewlink Ltd; Moreno Osacar v Ryanair [2017], was the opinion of the Advocate General (AG) on a case concerning the aviation sector. This sector has been alive to the problems caused by having a mobile workforce for longer than other sectors but still comes across practical issues.

Katie Scuoler examines the current planning position on amalgamation of units

Historically whether planning permission was required for the amalgamation of units has been a grey area for planning lawyers. However, it was a question which was seldom asked. In recent years there has been a strong trend in the central London residential market for the creation of substantial residential properties through the reconversion of previously subdivided houses, the amalgamation of purpose-built flats or adjoining houses, and lateral amalgamation of units. As a consequence, there has been increased focus on decisions regarding amalgamation. This article traces the recent evolution of decision-making regarding amalgamation.

Janine Shaw highlights current issues with planning urban extensions

Steps are being taken to address the housing crisis. On 2 January 2017 the government announced support for 14 new garden villages and three new garden towns. More may follow this year. Many emerging and adopted local plans are allocating substantial residential-led schemes, frequently as urban extensions.

Lucy McDonnell outlines the current status of neighbourhood planning

The government has demonstrated its continuing commitment to neighbourhood planning by naming a Bill after it, including it in a written ministerial statement and in the housing white paper, and continuing to emphasise its importance in recent appeal decisions. This article considers recent developments and the direction of travel.

Bryan Johnston discusses the impact of the controversial business rates revaluation

On 1 April 2017, the controversial business rates revaluation takes effect. Normally, revaluation does not generate front-page headlines, even in the property press. However, the 2017 revaluation is different. The path to revaluation has been anything but smooth. Even without revaluation, the rating industry has been up in arms about key judicial determinations and legislative proposals. This year, revaluation is the rating equivalent of throwing a stone at an angry wasps’ nest. This article explores these issues in greater detail.

Michele Vas explores current approaches to assessing compensation in the context of CPOs

The promotion of nationally significant infrastructure projects such as HS2, Crossrail and garden cities, together with the recent (and continued) support in the housing white paper for the use of compulsory purchase to assist in delivering housing, confirms that the use of compulsory purchase orders (CPOs) will play an increasingly prominent role in the delivery of development. The inevitable requirement of exercising CPO powers is that those dispossessed of their land are entitled to appropriate and fair compensation.

Akin Akinbode and Phil Vickers consider how best to avoid disputes under PF2/PFI contracts

With more PF2 projects ahead, there are lessons to be learnt from recent PFI disputes.

Is there now a presumption that reasons be given for planning decisions, asks Jamie McKie

Within the last year, we have seen a surge of significant cases in which an absence of reasons being given for planning decisions has proved to be decisive. This happened despite the abolition in 2013 of the statutory duty to give reasons for the grant of planning permission. While the contexts have varied – ranging from delegated decisions, environmental impact assessment (EIA) development and planning committee decisions contrary to officer recommendation – the outcome has been the same each time: reasons for granting permission should be given.

Rachael Herbert examines recent decisions concerning the role that strategic environmental assessments play in the plan-making process, and the consideration of reasonable alternatives

There has been a spate of recent cases concerning the requirement for plan makers to consider ‘any reasonable alternatives’ as part of the plan-making process and the role Strategic Environmental Assessment (SEA) plays in how that should be approached.

Mark Bassett examines a case concerning the interaction between real estate transactions and the public procurement rules

In August 2016 the High Court gave its most recent judgment that is relevant to the application of the public procurement rules to real estate transactions. R (Faraday Development Ltd) v West Berkshire Council [2016] (Faraday) is the latest in a line that can be said to have begun with the well-known European Court of Justice case, Auroux v Commune de Roanne [2007] (Roanne). Roanne highlighted the relevance of public procurement to public authorities entering into development agreements (mostly local authorities) and resulted in an upsurge in development agreements being awarded in accordance with the public contracts regime.

Sonia Ferreira, Karen Jacobs and Tim Constable consider who is to blame if the seller is an imposter

An important judgment handed down by the High Court considered the liability of both solicitors and estate agents in circumstances where the seller of a property turned out to be an imposter.

Katie Scuoler examines the compulsory purchase changes set out in the Housing and Planning Act 2016

Pressure has been mounting for change in the world of compulsory purchase legislation for many years. The early part of the 21st century saw a flurry of reports and reviews calling for a simplification and codification of the compulsory purchase regime. Minor changes – informed by the work of the Compulsory Purchase Policy Review Advisory Group – were introduced by the Planning and Compulsory Purchase Act 2004. The drafting of those reforms, however, pre-dated the conclusions of the Law Commission’s final report, ‘Towards a Compulsory Purchase Code’. Shifting priorities in the wake of that report pushed compulsory purchase reform into the long grass

Lucy McDonnell examines the ramifications of the Localism Act five years on

The Localism Act 2011 obtained royal assent in November 2011, gradually bringing into effect a raft of legislation supporting the government’s communities-based agenda. Following the Conservative Party’s 2010 manifesto, subtitled ‘Invitation to join the government of Britain’, localism remained a focus of the coalition government, and remains a focus of the current government.

Victoria Albon and Michael Bronstein analyse two recent EAT decisions which appear to give the green light to employers to ignore the Acas code when dealing with certain types of dismissal

An employer’s failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (the Code) may result in a tribunal uplifting an employee’s compensation award by up to 25%. While the impact on unfair dismissal claims is mitigated by the cap on the compensatory award, no such comfort is available in relation to discrimination claims.

Stephen Ashworth reviews what ‘best consideration’ means in practice and how it is affecting the property market

In a world of increasing devolution and local responsibility, local authorities still need ministerial consent to dispose of land at less than best consideration. Why is this the case, and what does this mean in practice?

Katie Scuoler summarises the current state of play for large-scale solar development in the green belt

Since the start of 2016, the Secretary of State for Communities and Local Government has dismissed every recovered appeal for large-scale solar development. Of these 13 dismissed appeals, nine were recovered for determination by the Secretary of State because they involved significant development in the green belt. Two repeating themes emerge in the reasons for refusal: inappropriate development in the green belt and a lack of compelling evidence to justify the use of high-quality agricultural land.

Bryan Johnston, Emma Frost, Katie Paul and Emma Broad report on a case that weighs up the right to carry out works against that of quiet enjoyment and derogation from grant

The recent High Court decision in Timothy Taylor Ltd v Mayfair House Corporation [2016] demonstrates that even a widely-worded lease reservation permitting a landlord to undertake works will be qualified by the landlord’s quiet enjoyment and non-derogation covenants, so as to require the landlord to take all reasonable steps to mitigate the impact of the works on the tenant. Depending on the nature of the works, a landlord may well have to consider compensating its tenant for disturbance caused, even where the landlord has the right to carry the works out. As such, the case will be of interest to landlords and tenants alike.

Jamie McKie casts a critical eye over the latest expansion of permitted development rights

What are permitted development rights? Section 59(1) of the Town and Country Planning Act 1990 empowers the Secretary of State to make development orders granting deemed planning permission for certain development which would otherwise require express planning permission. The rights enshrined in such development orders are known as permitted development rights (PDRs). PDRs can be subject to specific conditions and limitations.

Bryan Johnston reports on the outcome of a recent High Court decision, and calls for further reform to the 1995 Act

The Landlord and Tenant (Covenants) Act 1995 (the Act) has been a source of much judicial consideration in recent years. In particular, the validity of guarantees given by guarantors following assignment of leases has been the cause of legal scrutiny as well as consternation and concern from commercial parties keen to deal with their own business affairs but affected by the operation of the Act. A landlord, for example, risks losing the security of a valid guarantee from a guarantor with good covenant strength. Conversely, a tenant group may find it difficult to restructure as landlords seek to avoid a parent company’s guarantee becoming void and refuse consent to assign.

Rebecca Clarkson and Roy Pinnock explore the conflict between planning policy preventing development in flood zones and the need to build more housing

A spate of major floods across the UK, warnings that global warming will lead to more frequent heavy rainfall events and increased risks of flooding have put the topic back at the top of the pile for planners.

A recent ICO decision provides pointers on when a contract will be viewed as containing non-disclosable environmental information, as Mark Bassett explains

A recent Information Commissioner’s Office (ICO) decision serves as a reminder as to how the ICO will deal with arguments that contracts are subject to the exception in Reg 12(5)(e) of the Environmental Information Regulations 2004 (the EIR). This provides that environmental information need not be released where the disclosure would have an adverse effect upon:

Rachael Herbert unravels some of the mystery surrounding planning considerations for basement developments

There are few areas of planning law that can enliven the celebrities and moguls of London in the same way as that of basement development. It is a polarising topic and people are passionate in their views. Queen guitarist Brian May has even gone so far as to describe on his blog his basement-digging neighbours as ‘selfish and brutish’, referring to the piling rig they were using as an instrument of torture.

Michele Vas assesses whether regeneration is all when it comes to compulsory purchase orders

Regeneration is one of the government’s priorities; it continues to make grants and loan funding available to deliver infrastructure which will aid the delivery of regeneration. Compulsory purchase is one of the tools available to the public sector to secure the regeneration of its areas. It is unusual for compulsory purchase orders (CPOs) not to be confirmed by the Secretary of State. CPOs are judged to facilitate regeneration, which then satisfies the requirement that there is a compelling case in the public interest for making and confirming a CPO. However, is regeneration in any form, regardless of the qualitative merits of the scheme, enough to meet the public interest test?

Lucy McDonnell considers the intricacies and implications of the Bill

Housing has become a key priority for the electorate for the first time in decades, with planning and housing appearing in the manifestos of all the major parties in the run-up to the 2015 general election. It has become a political imperative for the government to take action on the housing crisis.

Bryan Johnston and Alexa Phoenix consider a new approach to domestic rates following a recent Supreme Court decision

In Woolway v Mazars [2015], the Supreme Court has handed down judgment in a non-domestic ratings case that has overturned the approach to ascertaining hereditaments where there are floors separated by common parts occupied by a tenant in the same building.

Bryan Johnston outlines an important post-K/S Victoria decision concerning repeat guarantees

There has been a lot of talk about the Landlord and Tenant Covenants Act 1995 following the decisions in Good Harvest Partnership LLP v Centaur Services Ltd [2010] and K/S Victoria Street v House of Fraser Ltd [2011]. However, there have been no significant determinations in respect of the issues arising from those cases and in particular in respect of the important issue of repeat guarantees.

A recent Court of Appeal ruling has called a stop to company administrations that were tactically timed to fall after rent quarter dates. Bryan Johnston explains

The Court of Appeal has held that where a leasehold property is used for the purposes of administration, rent is to be paid to the landlord as an expense of administration for the period that the property is beneficially retained.

Bryan Johnston assesses the price of failing to mediate following the Court of Appeal ruling in PGF

With Voltaire-esque flair, the Court of Appeal in PGF II SA v OMFS Company 1 Ltd [2013] summarily dispatched a tenant seeking to recover its legal costs following its own offer to settle being accepted, ‘pour encourager les autres ’.

Roy Pinnock reviews the likely implications of imminent changes in legislation on the registration of town and village greens

The system for registering new Town and Village Greens (TVGs) has become a tool for mischief and a weapon in the hands of those resisting development where objections through the planning system have failed. Imminent changes through the Growth and Infrastructure Bill are bold and will cut applications back down to a trickle, but before they come into effect even more care is needed in dealings with land that may still be a TVG.

Roy Pinnock considers the backdrop to the Review and whether its recommendations can achieve the goal of mobilising institutional investment in volume homebuilding

This summer has seen a drive for consensus on how to tackle viability in planning, with the publication of RICS and Local Housing Delivery Group guidance. The government is also consulting on the relaxation of planning requirements to stimulate economic activity. In the midst of all this, the Montague Review has reported on how best to promote institutional investment in the Private Rented Sector (PRS) through direct funding of new development for long-term rent – ‘Build to Let’.

Stephen Ashworth addresses some fundamental concerns relating to affordable housing, highlighted by a recent decision in Amber Valley

Affordable housing is a bellwether. If the development market is vibrant and the planning system is efficient then significant levels of affordable housing can be provided. In pre-Lehman days the planning system delivered well over 50% of all affordable homes. In 2009/2010 it was 56%, down from 62% the previous year, around 30,000 new homes, with an annual value of over £2bn. In contrast, in an anaemic market, and with a planning system in flux, affordable housing provision can drop dramatically. In the second quarter of 2011 less than 100 affordable homes were provided across the country. Strength and certainty contrast with weakness and chaos, each reinforcing the other.

Roy Pinnock and Stephen Ashworth consider some key areas in which greater clarity is needed if development and growth are to become more realistic prospects

Development profitability now plays a key role in many planning decisions. Both the policies tested and the obligations imposed by local authorities at the top of the market create challenges for delivering approved schemes. Ministerial pressure on local authorities to ‘plan for growth’ and renegotiate planning gain are combining with the advent of Community Infrastructure Levy (CIL) to increase refinancing pressures. Viability issues are becoming more pressing than ever. At the same time, the draft National Planning Policy Framework (NPPF) may subtly but significantly shift the goalposts, as it elevates the importance of deliverability in planning judgements about site allocations. Planning authorities and developers will both need to prepare themselves for a change in approach and clear guidance is needed to avoid precious private and public sector resources being wasted on sterile debate.

Sam Coulthard and Bryony Pawsey investigate whether lawyers’ opinions on legal capacity continue to have any value following a recent Court of Appeal decision

Prudent contracting parties often seek advice from lawyers or foreign lawyers about the capacity of the other side to enter into an agreement. The Court of Appeal’s finding in Haugesund Kommune v Depfa ACS Bank [2010] suggests that, if the advice is negligent, there may be no substantial right to damages from the lawyers. Only if the lawyers advised the client to enter into the transaction, or specifically agreed to take the risk if the transaction was invalid, will they have to compensate their client.