Last updateTue, 24 Feb 2015 5pm

Property Law Journal: April 2016

Rupert Higgins considers some cases highlighting the problems with hastily created declarations of trust

As controversial political figures go, it would be hard to find a candidate in recent times to beat Lutfur Rahman. Mr Rahman, as readers will no doubt recall, used to be Mayor of the London Borough of Tower Hamlets until his election was successfully challenged by a group of private individuals, and he was unceremoniously removed from his post following a lengthy but arresting judgment by the Electoral Commissioner – reported at Erlam v Rahman [2015] for those with a taste for lurid tales of corruption, dishonesty and intimidation. That judgment also resulted in a £250,000 interim costs order against Mr Rahman, and a spirited attempt by the successful petitioners to enforce that order by a series of charging order applications in respect of Mr Rahman’s modest property empire.

Gowling WLG

Paul Kent and Sally Coleman explore a decision that underscores the need for proportionality in choosing the correct planning enforcement procedure

Unnecessary, disproportionate and oppressive. Three words that would make any litigant wince and none more so than Stratford-upon-Avon District Council, following a recent application for an injunction against a well-known developer for its alleged failure to comply with planning conditions. Why, though, when using a perfectly legitimate statutory mechanism to restrain what it called ‘flagrant and persistent’ breaches of planning control, did the authority in question come in for such censure from the trial judge? More importantly, could they have avoided it? Stratford-upon-Avon District Council v Persimmon Homes [2015] is the most recent reminder that while statute offers a number of discretionary enforcement tools to planning authorities, the order of choice may well dictate the level of success.


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.


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:


Philip Knight, Helena Davies and Velida Pudic assess the different systems for recovering possession in the two jurisdictions

Many property portfolios have vacant units from time to time: empty buildings awaiting redevelopment or large open areas such as car parks, or yards, without access restrictions. Such spaces are vulnerable to occupation by trespassers. In this context, a trespasser is a person who has entered and remained on land without the consent of the person entitled to possession of it. Trespassers take various forms from travellers to anti-capitalist/anti-fracking protestors, from homeless people to shop squatters.

James Souter reviews a case highlighting the importance of conduct of the parties when considering whether an injunction or damages is the most appropriate remedy

The development industry will be watching with great interest in July this year when the Court of Appeal reviews a decision from the Oxford County Court which could have a significant impact on future rights to light cases. Given that possibility it is surprising the original decision has not received more publicity to date. Perhaps this is because the case related to a small development in High Wycombe but the issue before the court was one of the utmost importance to developers throughout the country. The principal issue before the court was the vexed question of the circumstances in which it will grant an injunction in favour of a neighbouring owner where a developer has breached their right to light.

John Starr

John Starr analyses the current position on payment notices

Towards the end of 2015, in PLJ335 (‘Clarity in all things’, October 2015, p26) I spoke about the case of Henia Investments Inc v Beck Interiors Ltd [2015]. Specifically, I spoke about the need for payment applications to be clear and unambiguous if contractors are to be able to rely on the provisions of the Housing Grants, Construction and Regeneration Act 1996 (as amended) (the Act), which say that such applications are deemed to identify the sum due in the absence of a valid interim payment certificate.