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Property Law Journal: 25 June 2012

Simon Ricketts addresses the main building blocks of the Localism Act 2011 and examines the case of one neighbourhood ‘front runner’

Most of the Localism Act’s provisions in relation to neighbourhood planning are now in force but we still don’t have a clear picture as to the likely level of take up – and whether communities will use the powers positively, or from a standpoint of seeking to preserve the status quo. However, what is clear is that planning is not going to be getting any simpler any time soon: a patchwork is developing of differing approaches in different areas, and there is no single information source (eg a definitive list published nationally or website) that would tell you what is happening in relation to neighbourhood planning in any particular area (eg whether a neighbourhood area/forum is designated and whether a neighbourhood plan is in preparation). Nor is there any detailed guidance from the government aside from three paragraphs in the National Planning Policy Framework.

William Hanbury looks at the issues raised by flood damage

This year looks like being one of a number of summers in recent years that have been unusually wet. A month’s rain fell in less than a day earlier this month. The inhabitants of Wales, and parts of western England affected by the latest downpour, can be grateful that they did not live in Tewkesbury when, on one day in July 2007, two month’s rain fell in 24 hours! Large parts of England shared a miserable summer in 2007, compounded in some cases by underinsurance and lack of planning on the part of the authorities. That led to changes in government policy and in the insurance industry. A number of those changes are still taking place and flood policy is likely to continue to change significantly. However, there is a major problem with insuring properties that may be affected by flood, as will be discussed below.

Daniel Bain considers a Scottish case highlighting the importance of clarifying when time is to be of the essence in a contract for the sale of land

When a party to a contract is in breach by not having performed an obligation on time, a number of options may be open to the other party to the contract. Depending on the circumstances, the other party may be content to wait until the defaulting party is ready to perform. Or they may wish to raise court proceedings to enforce performance. But what if they no longer wish to proceed with the contract? Can they terminate the contract in response to the defaulting party’s failure to perform on time?

Forsters LLP

Xavier Nicholas reviews the proposals for CGT and an annual charge in relation to property held by ‘non-natural persons’

As promised in the Budget in March, HMRC has released its consultation paper on the proposed changes to the taxation of UK residential property owned by ‘non-natural persons’. Since the Budget was announced there has been speculation that the changes might be watered down in response to lobbying from professional bodies. Many will be disappointed, therefore, to find that the consultation paper does not deviate significantly from the original proposals and asks as many questions as it offers answers.

A recent case has clarified the position of the landlord when dealing with a tenant in administration. David Marsden provides some background

This year there has been a spate of high-profile retailers entering administration. In the first part of 2012 Blacks, Peacocks, Clintons, La Senza, Game and Past Times have all gone into administration. This is often seen as an indication of the state of the retail market, in particular the high street. While this is no doubt true, administrations are often also used as a restructuring exercise.

Leigh Sagar clarifies the occupation of agricultural property for agricultural purposes

Agricultural property relief is available for transfers of agricultural land and pasture and specified buildings and woodlands within the UK, the Channel Islands and the Isle of Man. It need not be claimed and can apply to property held absolutely or on trust and whether or not a beneficiary has a qualifying interest in possession. The land may be freehold or leasehold and owned by an individual, a company or as a partnership asset. The relief operates to reduce such part of the value transferred by the relevant transfer of value as is attributable to the agricultural value of the property; this value is reduced by either 50% or 100%, depending on the interest of the transferor in the land and other specified conditions. The expression ‘agricultural value’ means the price that the property would fetch if it were sold subject to a perpetual covenant prohibiting its use otherwise than as agricultural property; this excludes any value attributable to such uses as mining and development. (See ss115-116 of the Inheritance Tax Act 1984 (the 1984 Act)).