Monthly Archives: November 2013

Common Land Could Have Right of Way over it

in Evans -v- Wimbledon & Putney Commons Conservators and Others; Admn 8-Nov-2013, the claimant owned property next to Putney Lower Common. He opposed a proposal to develop further adjoining land, and in particular the grant of access over the Common to the proposed development.

The claimant sought to challenge the agreement by the defendant owner of Wimbledon and Putney commons’ to grant the interested local authority an easement and connected rights over part of the Commons should that authority be granted planning permission to develop an area of its land fully surrounded by the Commons. The Administrative Court rejected the claim as the Wimbledon and Putney Commons Act 1871 allowed the defendant to grant the rights that it had agreed to confer. The Court said:

‘Of particular importance in the context of this case is the provision within section 39 which empowers the Defendant ‘to make and maintain such roads and ways as may be in their judgment necessary or proper’. Given the approach to interpretation spelled out above I am satisfied that it is open to the Defendant to create a means of access for the benefit of an area of land adjoining the common provided the means of access so created does not interfere with the ability of members of the public to continue to enjoy the part of the common across which the access is created and provided that the creation of the means of access is consistent with the duties of the Defendant and the overall objectives of the Act.

Other authorities may have similar powers.

Planning: Another 5 Categories of Permitted Development Rights Proposed

Back in May the UK Government made changes to the use class system to introduce permitted development rights for a number of changes of use, including from office use to residential. Though this is subject to prior planning authority approval and a number of authorities have secured exemptions to this concession.

A further Government consultation proposes new permitted development rights in five areas:
• To create a permitted development right to assist change of use and the associated physical works from an existing building used as a small shop or provider of professional/financial services (A1 and A2 uses) to residential use (C3);
• To create a permitted development right to enable retail use (A1) to change to a bank or a building society;
• To create a permitted development right to assist change of use and the associated physical works from existing buildings used for agricultural purposes to change to residential use (C3);
• To extend the permitted development rights for premises used as offices (B1), hotels (C1), residential (C2 and C2A), non-residential institutions (D1), and leisure and assembly (D2) to change use to a state funded school, to also be able to change to nurseries providing childcare; and
• To create a permitted development right to allow a building used for agricultural purposes of up to 500m2 to be used as a new state funded school or nursery providing childcare.

The consultation document goes into more detail about each of these new permitted development rights.

The consultation period ended on 15 October 2013. The Government has said that any changes would be made “for April 2014”

What role the local planning authority prior approval process will play in relation to these further permitted change of use and associated works rights is unclear. Nor is it clear whether and to what extent the property must have been redundant for it’s former purposes. In relation to change of use from retail it would appear that the planning authority will be entitled to look at the proposal’s implications for the retail environment and stock.

Notices to Complete: A Two Edged Sword

Anyone who takes issue with another party’s delay in completing a property sale and purchase needs to think things through before they serve a notice to complete. The effect of that notice is to make it time of the essence that completion occur by the end of the stated period. Otherwise the contract may be rescinded and amongst other things, if the buyer is then at fault it will then lose its deposit. In Clarke Investments Limited v Pacific Technologies (Court of Appeal) (2013) the completion was delayed whilst the buyer and seller disagreed over the amount payable as the seller’s solicitor had not put a VAT clause in the contract and the seller was refusing to complete without the VAT being paid.

The buyer’s solicitor had promptly served a notice to complete on the seller and returned the purchase money to the buyer but did not get it back in time to complete the purchase when as the notice to complete was about to expire the seller agreed to complete.

So the seller was very relieved to be able to cancel the contract because the buyer was at the end of the stated period in default.

It was no defence that the parties were still debating the buyer’s right to deduct some associated costs. It should have paid the purchase price in full “under protest” and reserved it’s rights to reclaim the costs later.

Ex tenant gets squatter’s title

A tenant cannot normally claim a squatters’ title from occupying land under a lease because it occupies the land with the Landlord’s consent and pays rent. Doing all that is consistent with the Landlord still owning the land.

In Mitchell v Watkinson (2013) the cricket club’s lease was unwritten when the last of the landlord trustees died in 1974 and rent ceased to be collected off the club soon afterwards. As the lease was unwritten the 12 years’ rent free occupation needed to claim a freehold by adverse possession started then and as that 12 year period was completed before the provisions of the Land Registration Act 2002 came into force the club did not have to worry about the restrictions it placed on such claims being made against registered freehold ownerships such as the landlord’s here.