Property update - November/December 2014

15 December 2014

Our real estate experts bring you the latest property law issues and provide action points to help you and your organisation.

Law Commission publishes final recommendations on reforms to rights to light

Following a consultation last year, the Law Commission has published a report and draft legislation recommending reforms to the law governing rights to light.

In the spring of last year we reviewed the Law Commission's consultation paper on rights to light. Following extensive consultation, the Law Commission has now published its final Report (Law Com no. 356) and draft legislation in the shape of the Rights to Light (Injunctions) Bill.

Principal Recommendations

The principal recommendations made by the Report relate to the acquisition of rights to light by prescription; the thorny question of remedy for breach (injunction versus damages); a new procedure designed to flush out objections to development; and the termination of rights to light.

Prescription

The Law Commission's provisional proposal was that, going forwards, rights to light would no longer be capable of being acquired by prescription. However, this was not supported by consultees. The Commission instead makes two recommendations designed to make prescription operate more straightforwardly in the future:

  • There are currently a number of different means of acquiring rights by prescription. The Commission recommends that these should be replaced with a single statutory method applicable to all easements (including rights to light), based on 20 years' continuous qualifying use. This reflects the recommendations made in the Law Commission's 2011 report on easements

    The new method of prescription will operate only as between freeholders. At present, the Custom of London prevents rights to light being acquired within the City of London by way of common law prescription or lost modern grant, but not under the Prescription Act 1832. Importantly, the Commission recommends that the Custom of London should apply to the new form of prescription. This appears to mean that it will no longer be possible to acquire a prescriptive right within the City of London
  • The Commission recommends that the Rights of Light Act 1959 should be repealed, and that the Light Obstruction Notice (LON) should no longer be available as a method of blocking a prescriptive right from arising. Instead, the LON would be replaced by an application by a landowner (a freeholder, lessee with more than seven years to run or mortgagee in possession) for registration of a Certificate of Light Interruption on the local land charges register. This would operate with immediate effect to terminate the process of prescription, but would not have any effect on easements that are already in existence

Injunction v Damages

One of the questions at the forefront of most developers' minds is whether a court is likely to grant an injunction preventing building works being carried out (or, worse still, requiring them to be removed), or whether it will restrict a claimant to damages.

Since the Consultation Paper was published last year, the Supreme Court has handed down its decision in Coventry v Lawrence. Despite the shift evidenced by Coventry towards damages instead of an injunction, the Commission has rightly concluded that the law is uncertain and reform is still necessary. The Law Commission recommends a new statutory test, which takes into account the decision in Coventry and the views of consultees. The recommendation is that:

"a Court must not grant an injunction to restrain the infringement of a right to light if doing so would be a disproportionate means of enforcing the dominant owner's right to light, taking into account all of the circumstances including:

  1. the claimant's interest in the dominant land;
  2. the loss of amenity attributable to the infringement (taking into account the extent to which artificial light is relied upon);
  3. whether damages would be adequate compensation;
  4. conduct of the claimant;
  5. whether the claimant delayed unreasonably in claiming an injunction;
  6. conduct of the defendants;
  7. impact of an injunction on the defendant; and
  8. the public interest."

Perhaps the most striking elements of the proposed definition are first, the use of "must" rather than "may" in the first sentence (which arguably imposes a greater constraint on the court's discretion than hitherto) and secondly, the inclusion (following Coventry) of "public interest".

A new procedure: the Notice of Proposed Obstruction

As noted above, developers need to know whether an injunction is a serious possibility. The Report recommends the introduction of a new procedure: the Notice of Proposed Obstruction (NPO). Using this procedure, a developer can require a neighbour to seek an injunction in respect of the obstruction within eight months, or be debarred from doing so. The neighbour would retain their right to damages.

Importantly, the effect of the NPO should be ignored in addressing the issue of damages. (If a dominant owner fails to respond to an NPO, the court will not have jurisdiction to grant an injunction, which could otherwise be fatal to a claim for equitable damages.)

The recommendations set out a procedural framework for regulations to be prescribed as to the form and content of the NPO, and associated procedure. The key importance of the reform is one of timing and giving some level of certainty to a developer, rather than affecting the chances of an injunction being granted should an application be made.

The stated intention of the notice procedure is to "make negotiation more effective and keep costs down for all concerned". Assuming that the procedure operates smoothly, this goal should hopefully be achieved.

Bringing Rights to Light to an end

The Report makes two recommendations as to the ways in which rights to light can be brought to an end. They both comprise amendments to the 2011 Easements Report and to the draft Easements Bill which accompanied that report:

  • Five years' non-user will be evidence of abandonment (as opposed to the 20 years which was the recommendation for easements generally)
  • The Consultation Paper proposed that the Lands Chamber should have the power to modify or discharge existing, as well as future, rights to light. Following consultation, this recommendation now applies to all easements

Aspects of the law where no change is recommended

Having carried out a detailed review of the law, the Law Commission recommends no change to the status quo in a number of areas:

(i) Test for actionable infringement

The current test for when an obstruction of light should be actionable will remain. The Commission considered, but rejected, a more objective standard or other technique for measuring light, or different tests for commercial and residential premises. The most hotly debated issue was whether artificial light should be taken into account in the decision as to whether a right has been infringed. The Commission concluded that it should not, but that it should be an express factor to be considered on the question of remedy.

(ii) Method of assessing equitable damages

Despite a sizeable majority of consultees being in favour of some sort of reform, the Law Commission has stood by its provisional proposal not to recommend any change in the measure of damages that can be awarded instead of an injunction. The Commission wants to see how the remaining recommendations (the new statutory test and the NPO procedure) bed down, and also monitor the effect of the Coventry decision (in which a number of comments were made to cast doubt on the correct measure of damages).

This will be a disappointment to developers who see the current law as too uncertain and having the potential to result in disproportionate settlements and, put at its highest, to jeopardise the viability of a development.

(iii) The effect of alterations or rebuilding

Tricky issues can arise in working out whether a right to light survives the alteration or rebuilding of the dominant property. Various possible reforms were canvassed with consultees, including a new statutory test or registration, but were ultimately rejected.

(iv) Section 237 of the Town & Country Planning Act 1990

Section 237 was outside the scope of the Law Commission's project. Their consideration was limited to examining whether the power was sufficient to meet the problems caused to developments to rights to light. Given the divergence of views between local authorities on the use of s.237 and that it should be regarded as a tool of last resort, the answer, unsurprisingly, was that it was not.

What happens next?

The Government has not yet responded to the Law Commission's 2011 Easements Report. The latest recommendations are divided between additions/amendments to the Easements Bill, and a separate Rights to Light Bill. This means that the recommendations cannot be implemented in full unless and until the Government implements the earlier recommendations relating to easements. This, together with the General Election looming in 2015, means that it is by no means certain whether the reforms will make it onto the statute books.

A longer version of this article appeared in the Estates Gazette on 6 December 2014, at page 82.

Author: Anne Waltham

Buyer unable to grant leaseback to seller ahead of completion of sale and mortgage

Key points

  • A buyer acquired property with secured mortgage finance
  • An arrangement for a leaseback to the seller was not disclosed to the buyer's mortgagee
  • The buyer's contractual promise to grant the leaseback did not confer proprietary rights on the seller and therefore could not take effect as an overriding interest
  • The sale to the buyer and the grant of the mortgage took effect as one indivisible transaction
  • The mortgagee's interest was not subject to the leaseback which was granted to the seller shortly after completion of the sale

Background

In the case of Scott v Southern Pacific Mortgages Limited & Others, as part of a sale and rent back arrangement, home owners agreed to sell their property at a discounted price, on the basis of a promise by the buyer that one of the sellers (S) would be allowed to remain in occupation indefinitely after the sale, as a tenant. The buyer bought the home using mortgage finance, but the lender was not given notice of the promise made to the home owner.

Four days after completion of the sale, and notwithstanding the promise previously made, S was granted only a two-year assured shorthold tenancy of the house by the buyer. The transfer to the buyer and the lender's charge were registered at the Land Registry. Upon the buyer's subsequent mortgage default, the lender obtained a possession order, with a view to disposing of the property to recover monies owed.

The seller's challenge fails

The lender's right to possession was challenged on the basis that S had an overriding interest as a person in actual occupation, and that the lender's rights under the mortgage were subject to that interest. However, having considered previous case law on this issue, the Supreme Court ruled as follows:

  • The combined effect of ss.116 and 132(1) of the Land Registration Act (LRA) 2002 meant that unregistered interests which override registered dispositions (under Schedule 3, paragraph 2 & section 29(2) LRA 2002) must be proprietary in nature
  • Following exchange of contracts for the sale of land, the buyer had only an equitable interest in the property and could not therefore confer proprietary rights (by way of the new tenancy) on S until the contract had been completed
  • Following the House of Lords 1991 ruling in Abbey National Building Society v Cann, where - as in the present case - a sale and a mortgage (required and granted for the purpose of securing borrowings to facilitate the purchase) are completed virtually simultaneously, they are one indivisible transaction and there is no scintilla temporis between them. All the buyer acquires is the equity of redemption. There was therefore no moment in time during which the buyer could have granted the new tenancy free of the lender's mortgage

As a result, S did not have an overriding interest which could take priority over that of the lender's charge, and the lender was entitled to possession of the property.

Contracting buyer - no proprietary right

This case highlights the limitations on the ability of a contracting buyer to grant leaseback rights ahead of completion of a sale. Nothing should be taken for granted: the buyer's funding arrangements (the details of which will generally not be known to the seller) may completely undermine the purported grant of rights of continued occupation which a seller is expecting to retain. In the present case, the terms of the lender's mortgage did not permit the promised occupation rights or the grant of the tenancy by the buyer to the seller.

While the court recognised that its findings produced a harsh result from the seller's point of view and although sympathetic to the seller's situation, the court considered that there was an important point of public interest at stake in this case, in terms of the security of registered transactions.

However, one of the judges did raise the question as to whether a different approach might be called for at the point "...when the claims of lenders who have failed to heed the obvious warning signs that would have told them that this borrower was not a good risk are postponed to those of vendors who have been made promises that the borrowers cannot keep? Innocence is a comparative concept. There ought to be some middle way between the "all or nothing" approach of the present law..."

Completion and registration

A further complication flagged in the judgment was the question of what is sometimes called the 'registration gap' - i.e. the fact that a transfer or mortgage cannot operate at law until completed by registration, meaning that in the period between actual completion of the transaction and registration the buyer and lender have only equitable interests.

Interestingly, however, although this suggested that any contractual rights granted to the occupier could not be granted as proprietary rights until registration, the view of at least one of the members of the court was that "...this is machinery, not substance. Assuming that all relevant registration requirements are met, the purchaser has now acquired an absolute right to the legal estate (and the mortgagee an absolute right to the charge). Her interest is of a different order from that of a purchaser before completion, who has the contractual right to have the property conveyed to her but may never in fact get it..."

While in strict legal terms the suggestion that 'absolute' legal rights arise ahead of registration is questionable, that comment is perhaps intended to reflect what usually happens in practice, with subsequent successful registration effectively seen as 'curing' any (generally short-term) timing issues.

Author: Anne Waltham

Repair breach prevents exercise of tenant's lease break clause

Key points

  • A tenant's break right was conditional upon lease covenant compliance
  • The required standard of repair in the lease covenant had not been met
  • The repair covenant breach rendered the tenant's break notice ineffective
  • Break conditions are construed strictly against tenants; and full compliance with a repair covenant is difficult to establish
  • Tenants should seek to avoid pre-conditions when negotiating break clauses

Background

In the High Court case of Sirhowy Investments Limited v (1) Henderson (2) Knight, a lease of premises to be used for the purposes of the tenants' car sale and repair business was granted for a term of ten years from 1 February 2005. As a result of previous concerns expressed by the local authority as to the loading and unloading of cars at the premises, a break clause had been included in the lease, allowing the tenant to terminate the lease on three months' notice in the event of a failure to obtain the required planning consent for the tenant's business.

In 2010, upon the local authority serving a breach of condition notice on the tenants in respect of issues relating to vehicle turning and delivery, the tenants purported to determine the lease by giving notice under the break clause, on the basis that the local authority had objected to the use of the premises for the permitted use (sale and repair of cars) under the lease.

Meeting the conditions of the break clause

Rejecting arguments to the contrary by the landlords, the court ruled that the tenants had indeed failed to obtain the required consent - as the practical consequence of the local authority's objections was that they were required to cease their use of the premises - and that the tenants had complied with a requirement in the break clause to use all reasonable endeavours to secure the required planning permission.

The court had then to consider whether the tenants had complied with a condition of the break clause requiring that they had "paid the rent and observed and performed the covenants contained in this Lease". Having considered various alleged breaches raised by the landlords, the court held as follows:

  • The keeping of a dog on site as a pet did not breach a covenant prohibiting the tenants from having "livestock of any kind"
  • Provided that the tenants had been up to date with rent payments at the relevant date (which they were), that requirement in the break clause was met, notwithstanding that there may have been late payment in the past
  • Similarly, historic breaches of other covenants in the lease "with no continuing consequences" (e.g. parking cars in an area where parking was not allowed) would not preclude the exercise of the break clause
  • On the facts, alleged breaches of covenants in relation to planning applications were also unproven, but in any event any breach would have been purely historic by the time the break clause was operated

Repair clause breached: break notice ineffective

However, the tenants had covenanted in the lease to keep the whole of the premises in "good and substantial repair", subject to there being no obligation to put the premises into a better state of repair and condition than existed at the start of the lease term. Although the landlord had failed to establish a number of alleged breaches of this covenant and of a covenant for redecoration, there was one exception to this.

The court ruled that repairs made to fencing at the premises had been inadequate for compliance with the tenant's repair covenant. Patching up the fence by attaching sheeting over holes was insufficient: what was required was for the tenants "to ensure that the end product was consistent with what already existed" and they had not done so.

As a result, the tenants had not observed and performed all their covenants upon service of the notice to break or at the time of expiry of the notice. The break notice had been ineffective and the lease continued.

Comment

  • Beware break conditions. Tenants' breaks are often hedged around with and made subject to various conditions which mean that the tenant will have to jump successfully through a number of hoops in order to exercise its break right. In negotiating lease terms, a tenant should ensure that its break right is not unduly fettered or, worse, effectively rendered inoperable by the exercise of the right being contingent on the satisfaction of strict conditions. This is particularly so because the courts will construe these kind of conditions strictly against the tenant
  • The courts regard business certainty as an important factor and tenants should not expect help if they fail to comply with break conditions, not least given that the effect and operation of such conditions have increasingly been the subject of a number of reported cases in recent times

    Establishing full compliance with the terms of such conditions is key. Getting things right first time - particularly where timing constraints may mean that the tenant will not have a second chance to correct things - is very important. Even apparently innocuous conditions which appear relatively easy to meet - such as a payment of money - may ultimately prove to be fraught with difficulties and any non-compliance, however minimal, could deprive the tenant of its right to break, with all the serious consequences that may flow from this
  • Although only a High Court decision and decided on its particular facts and their application to the covenants in the lease in question, this case gives an insight into the court's approach where the exercise of a break clause is conditional upon covenant compliance and the extent to which historic breaches which are effectively no longer of practical consequence may be ignored when assessing compliance at the relevant time
  • It is also a warning that even where the tenant considers that adequate repair work has been carried out, a failure fully to meet the required standard - in this case to ensure that the fence was restored to a condition commensurate with that at the start of the lease term - may constitute a breach. Such a breach may, as in this case, deprive the tenant of its ability to operate the break clause
  • A common qualification to covenant compliance conditions in break clauses is to provide for covenants to be "materially" or "substantially" complied with, or "reasonably" observed and performed, to avoid immaterial or minimal breaches being used by the landlord as a means of resisting the exercise of a tenant's break. Establishing complete compliance with obligations such as repair covenants is far from easy; and the tenant's task in the present case was made even more difficult given that the break condition was expressed in absolute and unqualified terms
  • This case is yet another reminder of the need for full compliance with lease break conditions - and why it is important when negotiating the terms of a new lease to seek to secure for the tenant an entirely unconditional break right or at least one with only very limited (and easy to comply with) conditions

The adverse commercial and financial consequences of the inability to break the lease were particularly acute here, given that the break right had been included to allow termination of the lease where, from a planning law point of view, the tenant could no longer operate its business from the premises.

The tenant was left with a continuing liability for rent and other lease obligations for the period from the purported break (in 2010) to the expiry of the lease term (in 2015), but in circumstances in which it could no longer carry on its business.

Author: Anne Waltham

When is a lease assignment not a lease assignment?

The question the court had to decide in Lankester & Son Ltd v Rennie was one which occurs more often in practice than might be thought; namely: "Who is my tenant?"

Key points

  • Landlords should be very cautious about accepting sums purporting to be rent from someone who is not the legal tenant under the lease
  • Particular care should be taken with intra-group arrangements
  • A tenant assigning its lease must ensure that all the formalities are properly completed, otherwise it could find itself still on the hook

Facts of Lankester & Son Ltd v Rennie

A lease was granted in 2007 to a tenant for ten years. The lease contained a break clause, the exercise of which was personal to the original tenant. A year into the term, the tenant wished to extricate itself from the lease. The tenant found another company, TCA, which was interested in taking over the premises.

Discussions took place with the landlord over a potential assignment of the lease to TCA. The tenant and TCA both instructed the same solicitor to act for them in connection with the transaction. Despite having been registrable at the time of grant, the lease itself was not registered until late 2009, because of a mistake on an adjoining title at Land Registry which first had to be rectified. In the meantime the parties signed a transfer deed, which was held on file by their solicitor.

In late 2008, TCA moved into the premises. The landlord accepted from TCA sums which purported to be rent under the lease. There were various communications between the landlord and TCA about TCA's occupation of the premises. The landlord carried out works to the property at TCA's request. It also granted permission for TCA to carry out alterations at the property. Later, it acceded to a request by TCA for "rent" to be paid monthly, rather than quarterly.

However, in 2010 TCA decided to vacate the premises, citing an inability to agree on the terms of the assignment. In particular, TCA had wanted to be able to obtain the benefit of the break clause in the lease, but as set out above this was expressed to be personal to the original tenant.

With the premises now lying empty, the landlord sought to claim sums due under the lease from the original tenant.

Findings of the court

Despite the course of dealing between the landlord and TCA, the judge at first instance found that the landlord had only been prepared to allow an assignment of the lease if TCA provided personal guarantees from its directors, which guarantees were not on offer.

The judge also found that the landlord had never consented to TCA taking possession of the premises, and had been presented with a fait accompli. The landlord had warned the tenant that if it were to allow TCA to occupy the premises without there being a formal assignment then the tenant would remain fully responsible for its obligations under the lease.

These findings were undisturbed by the Court of Appeal.

Legal v equitable assignment

As the transfer deed signed by the parties had never been registered at Land Registry, there had been no legal assignment of the lease to TCA. However, the tenant argued that an effective equitable assignment had taken place.

The court found that, in fact, there had been no assignment at all (whether legal or equitable). In order to be effective, a deed must not only be signed, it must also be "delivered". Delivery is usually evidenced by a party showing their intention to be bound.

In this case, there were several matters which had not been resolved at the time the transfer was executed. These included the error holding up registration of the lease, the landlord's request for a guarantee of TCA, and TCA's requirement for a break clause. The court therefore ruled that the transfer had not been delivered and so was of no effect.

Even if the transfer deed had been properly delivered such that an equitable assignment had occurred, the Court of Appeal doubted whether this could have had any effect on the landlord's rights against the tenant (as opposed to simply governing the position between the tenant and TCA), since that relationship was concerned with legal, not equitable, rights.

Estoppel

The tenant argued that the landlord was estopped from denying that TCA was the lawful assignee of the lease. The difficulty was that the tenant had to show that such an estoppel, if it existed, was capable of operating in favour of the tenant, as estoppels are normally personal to the parties concerned.

Against the background of the findings made by the judge, the Court of Appeal was unable to accept that the landlord had made any representation to the tenant that it had accepted TCA as the assignee of the lease. In any event, there was no evidence that the tenant had relied on any such representation to its detriment (a necessary feature of an estoppel claim).

Things to consider

In making its claim, the landlord had adopted a two-pronged approach: asserting as against TCA that TCA had taken an assignment of the lease, while at the same time seeking to claim sums under the lease from the original tenant on the basis that no assignment had taken place. Such a strategy is understandable, but is not without risk, and specialist advice should always be sought by landlords who find themselves in a similar position.

Great caution should be exercised by a landlord before accepting rent from someone who is not the legal tenant under the lease. Although the landlord in this case managed to recover sums due by successfully asserting that the lease was still vested in the original tenant, each case will turn on its own facts.

The landlord does appear to have treated TCA as if it were its tenant - dealing with management issues, granting licences etc. The landlord succeeded in its claim against the original tenant in part because the tenant was not a party to the arrangements between the landlord and TCA and had not relied on them. Well-advised landlords would not, however, engage in this way with someone who they know not to be their tenant.

This case involved two arms' length companies. However, even the savviest landlord can get caught out where a lease is vested in the name of one group company but in fact another company in the group is in occupation of the premises, and is paying the rent. Such arrangements may be the result of the legitimate operation of group sharing provisions in the lease, or alternatively one company may tender rent as agent for another company in the group.

They do, however, always give rise to questions as to the status of the occupying company which can cause delays on a sale of the landlord's reversion, and in an extreme case could result in security of tenure inadvertently having been obtained.

The tenant does not appear to have been properly advised at the time the lease was granted, as the difficulties over registration only came to light when the application came to be submitted to Land Registry. The case illustrates the importance to tenants of investigating title when taking a lease - particularly for a significant term.

Author: Anne Waltham

Planning

Highways and commuted sums

A recent case appears to have at last resolved the perennial question as to whether commuted sums for future maintenance of roads could be demanded by highways authorities under s38 Highways Act 1980.

In R (on the application of Redrow Homes Ltd) v Knowsley Metropolitan Borough Council, the Court of Appeal confirmed that agreements under s38 between a developer and the highways authority for the adoption and maintenance of highways built by the developer and adopted for maintenance at the public expense, can lawfully contain a provision for the payment of a commuted sum.

Such sum would fund all aspects of maintenance into the indefinite future. The agreements could alternatively require that the developer pay for, or even carry out, all aspects of future maintenance whenever necessary.

This decision will be of some concern to developers of already viability-challenged schemes. The court stated that a developer would not enter into a s38 agreement if it was not in its interests to do so. If the authority was only willing to offer a deal which was not commercially acceptable, then the developer could use the procedure under s37, by which a developer who proposes to dedicate a highway can serve a notice on the authority stating that it "desires the highway to be maintainable at the public expense".

There is no provision for the authority to call for any payment by the developer under section 37. We may see more developers making use of s.37 as a result. However, developers may find that this procedure may take as long as the traditional s.38 agreements.

S106 obligations, affordable housing and small schemes

In early 2014, the government published a consultation on a proposed 10 unit threshold for s106 affordable housing contributions, to reduce planning costs for developers. After considering the responses the government is proposing the following changes to national policy:

  • Affordable housing and tariff-style contributions will not be sought for sites of 10 units or fewer with a maximum combined gross floor space of 1,000 sqm
  • The same will also apply to all residential annexes and extensions
  • For designated areas (e.g. National Parks and Areas of Outstanding National Beauty) authorities may choose a lower threshold of 5 units or fewer. In these circumstances, affordable housing and tariff-style contributions for developments of 6-10 units should be sought as a cash payment only and be commuted until after completion of units within the development
  • The changes in national policy will not apply to rural exception sites which remain available to support the delivery of affordable housing for local people, subject to the area demonstrating sufficient need
  • A financial credit equivalent to the existing gross floorspace of vacant buildings (but not abandoned buildings) brought back to lawful use or demolished for re-development shall be deducted from the calculation of any affordable housing contributions

See also our item below on the government proposals for broader changes to section 106 negotiations.

Interpretation of conditions on a planning permission - noise measurements

Conditions which require noise to be kept below a particular level often contain technical noise measurement references, which are for the most part incomprehensible to all but environmental health officers, acousticians and some planning officers.

In Nigel and Caroline Greaves v Boston Borough Council and Carol Goodson, the claimants alleged that a noise condition imposed on a wind turbine permission was unlawful because it was insufficiently certain. The condition stated that "noise arising from the wind turbine shall not exceed LA90, 5min of 35dB(A) or the background level plus 5dB(A), whichever is the greater, at one meter from the facade of the nearest residential property with different ownership from the wind turbine".

The court found that although planning conditions would be interpreted as a reasonable reader would understand them, some conditions were meant to be read and applied by specialists exercising professional judgment. A failure to specify every measurement or methodology by which a breach of the condition might be ascertained did not make them unenforceable for lack of certainty. The fact that those exercising professional judgment might produce differing conclusions about whether there was a breach of condition did not render the condition unlawful.

Government proposals for reforms

On 2 December the government published proposals including the following:

  • Compulsory purchase reforms. Proposals will be published for consultation at Budget 2015 to make processes clearer, faster and fairer, with the aim of making more brownfield land available for development
  • Planning: establishing the principle of development. The government will take forward measures to ensure that the principle of development need only be established once, to give greater certainty and allow locally-supported development to proceed more quickly
  • Planning: section 106 negotiations. The government will take steps to speed up s106 negotiations, including issuing revised guidance, consulting on a faster process for reaching agreement, considering how timescales for agreement could be introduced, and improving transparency on the use of s106 funds
  • Planning: speed of decisions. The government will keep the speed of major decisions under review, with minimum performance thresholds increasing to 50% of major decisions made on time as performance improves

Guidance on drafting development consent orders published

The Planning Inspectorate has published detailed guidance on drafting development consent orders (DCOs).

Parts 1 to 8 of the Planning Act 2008 introduced a system of development consent for nationally significant infrastructure projects (NSIPs). A development consent order combines the grant of planning permission with a range of other consents, such as listed building consent.

Proposals to deem the discharge of planning conditions

The Department for Communities and Local Government (DCLG) has issued its response to a recent consultation covering the deemed discharge of planning conditions.

Currently, conditions attached to a planning permission which require the further approval of details must be formally discharged by the local planning authority. This can cause delays to developers.

Much of the detail will follow in secondary legislation but the proposal is that, where a condition is not excluded from the provisions, and provided the correct procedure is followed, details submitted under the condition will be deemed to be approved and the condition discharged if no decision has been made within a "reasonable period". That is yet to be settled.

Exemptions would apply to development:

  • subject to an environmental impact assessment
  • likely to have a significant effect on a qualifying European site (i.e. one designated as requiring special protection under EU law)
  • requiring flood risk management
  • under an outline permission requiring approval of reserved matters
  • requiring investigation and remediation of contaminated land
  • involving highway safety
  • of sites of special scientific interest and with archaeological potential

Author: Jan Hebblethwaite


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