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Property Law Journal: 28 January 2013
Nabarro LLP

Michael Cant reviews the real estate implications of the Finance Act 2013

It seems likely that the Finance Act 2013, when enacted in July 2013, will have six real estate-specific provisions contained within it. Almost all of the changes have been, or are being, consulted upon and are largely aimed at either preventing perceived avoidance or tidying up shortcomings in existing legislation. In truth, there are no real surprises as regards the proposals.

Angus Evers considers whether the government appears to be putting the brakes on civil sanctions on environmental offences and Matthew Mainstone assesses the latest proposals on judicial review procedures and the planning appeal process

The government’s recent focus on amending planning legislation and policy to encourage house building and unlock stalled development, seen as essential to economic growth, is beginning to take shape. While many of the changes are coming forward in the Growth and Infrastructure Bill, others are to be implemented by way of amendments to regulations, rules and guidance. The government has recently consulted on such amendments in the realm of judicial review and planning appeals.

Angus Evers considers whether the government appears to be putting the brakes on civil sanctions on environmental offences and Matthew Mainstone assesses the latest proposals on judicial review procedures and the planning appeal process

Breaching the provisions of most environmental legislation is a criminal offence, for which the ultimate sanction is a criminal prosecution. This can be a harsh outcome – environmental offences are often strict liability offences, which require no mens rea and can therefore be committed unwittingly by businesses and organisations that have no intention of breaking the law. Many environmental offences are viewed by the courts as acts that ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’ (Alphacell Ltd v Woodward [1972] at 483). However, since the introduction of the Regulatory Enforcement and Sanctions Act 2008 (RESA), the enforcement landscape for environmental offences has changed. Environmental regulators now have the power to impose civil sanctions for certain breaches of environmental legislation, instead of using the criminal law.

Christopher Cant contemplates some of the unwelcome consequences of the CIL regime and the government’s efforts to deal with them

Many developers had hoped that the community infrastructure levy (CIL) would be pushed into abeyance. However, this hoped-for outcome shows no signs as yet of materialising. Rather, there appears to be an accelerating implementation of the procedure leading to the approval and publishing of CIL charging schedules by charging authorities as deadlines begin to loom. Recently, the Community Infrastructure Levy (Amendment) Regulations 2012/2975 (2012 Regulations) have been swiftly enacted. These seek to tackle some of the problems with the new CIL regime that have come to light. Although the CIL regime is intended to be simple and certain in operation it has resulted in some complicated and potentially harsh outcomes.

Mamoon Chaudhary looks at different causes of action for liability in fire-related cases and what can be done to cover the risk

Commercial property owners and tenants are advised to review their building insurance policies to check that they have cover for any fire damage caused by a neighbouring property. That is the practical consequence of a recent Court of Appeal decision in Stannard v Gore [2012] that put the brakes on a compensation payout when a fire spread from a tyre company to neighbouring premises, destroying both units in the process. The Court of Appeal, upholding the case of the defendant, said that he was not liable under the doctrine of strict liability. This is a concept that attaches liability without fault being attributable or necessary and was enunciated properly by the landmark decision of Blackburn J in Rylands v Fletcher [1868] (R v F). The innocent neighbour not only had to pick up the costs of the failed action but damage occasioned by the fire.

Daniel Cuthbert discusses the vexed issue of apportionment of rent following the exercise of a break clause

Recent case law suggests that tenants are having significant problems properly exercising break clauses in their leases. One consequence of exercising a break clause that has caused problems is the requirement to pay a full quarter of rent, despite the fact that the lease terminates part way through the quarter if the break is successfully exercised. Three recent cases, Canonical UK Ltd v TST Millbank LLC [2012], PCE Investors Ltd v Cancer Research UK [2012] and Quirkco Investments Ltd v Aspray Transport Ltd [2011], have highlighted this point.

Peter Levaggi and Alison Crabbe examine a case where a local authority tried unsuccessfully to evade its contractual obligations

It is an unattractive feature of public law that allows public bodies to escape contracts with private parties by evoking their own lack of capacity.