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Property Law Journal: 22 April 2013

Donal Kelly analyses the Law Commission’s recent report on a revised Electronic Communications Code

Following the Law Commission’s report (that was published on 27 February 2013), which made recommendations for revisions to the Electronic Communications Code, the government is now tasked with drafting a new code from scratch. This first of seven key recommendations made by the Law Commission will be music to the ears of landowners, site providers and operators alike. While many interested parties made vastly different submissions to the Commission during the consultation stages, it was almost universally agreed that the existing Code was so overly complicated and badly drafted as to be beyond rescue.

A recent case concerning wind farms has highlighted the importance of decision makers giving sufficient weight to the development plan, as Jennifer Holgate finds out

Onshore wind farm development in England is an industry that is conducive to High Court challenge. The case of South Northamptonshire Council and Secretary of State for Communities and Local Government [2013] being considered here is an example to decision makers to ensure that they clearly accord the development plan the requisite weight when determining planning applications. Section 38(6) of the Planning and Compulsory Purchase Act 2004 must be applied correctly or there is a risk of a successful challenge being brought.

Nabarro LLP

Deborah Lloyd weighs up the pros and cons of PAIFs

The government introduced tax breaks for UK property funds in 2008. It has taken five years for the industry to start responding. Now we are seeing authorised investment funds being launched as property authorised investment funds (PAIFs). Why the delay? Market conditions have played a large part in the lack of action. However, there are still practical and tax issues to be resolved.

DWF

Jo Hannah looks at the reasons behind the decision to allow free schools in almost any building without the need for planning permission

The government has recently proposed that free schools should be allowed to open in almost any building for up to one year, without the need for planning permission. Unsurprisingly, this has been met with a mixed reaction.

Emma Humphreys and Richard Flenley examine a case highlighting the different considerations that apply when a court is considering a claim for an injunction and a claim for declaratory relief

A recent High Court decision has illustrated the differing tests that apply when the courts have to assess how to exercise their discretion as to whether or not to grant an injunctive or declaratory remedy, as sought by a claimant in advance of a wrong being committed. It also highlights how specific circumstances can make a real difference when considering such complaints.

Mark Pawlowski considers the Court of Appeal’s decision in Pankhania v Chandegra, which discusses whether express declarations of trust are conclusive

It is accepted as established law that, where the parties execute a trust expressly declaring their respective beneficial interests in property, this will be conclusive of the parties’ common intention as at the time of the declaration in the absence of fraud, misrepresentation, undue influence or mistake permitting a party to rescind or rectify the trust: see, for example, Wilson v Wilson [1969], where the declaration of trust was rectified on grounds of mistake. In most cases, therefore, this means that the size of the parties’ respective shares upon acquisition will be determined according to the terms of their express trust regardless of their actual contributions to the purchase of the property.