Monthly Archives: February 2016

Injurious affection: whether compensation claimable for remedial works

In the Upper Tribunal (Lands Chamber) case of Bourne Leisure (Hopton) Ltd v Great Yarmouth Port Authority [2016] the claimant alleged damage to land was caused by the construction of an outer harbour which changed the tide-flow patterns increasing erosion and causing the failure of part of the adjacent sea defences.

So there had been a loss of beach, loss of access to the beach and damage to and loss of cliff including part of the claimant’s land.

The compensation claim included the cost of carrying out the remedial works, the maintenance and monitoring of those works, operational losses and diminution in the value of the land from loss of beach.

The limitation period set out in s.9(1) of the Limitation Act 1990, is six years from the date on which the cause of action to recover any sum recoverable by virtue of any enactment accrued.

Two major issues where:

(1) Whether, for section 9 of the Limitation Act 1980, the cause of action accrued when the outer harbour works were executed or whether the cause of action accrued when, as a result of those works, there occurred material physical damage to, or interference with, any interest in land of the claimant.

The Tribunal said the term “injuriously affected” connotes “injuria”, that was to say, damage which would be wrongful but for the protection afforded by any statutory powers. So a claim cannot arise under s.10 of the Compulsory Purchase Act 1965 unless and until a claim would have arisen in nuisance, but for the statutory authority.

A claim in nuisance did not arise until direct physical damage was suffered or there was substantial interference with the enjoyment of an easement.

So, here, the claimant’s right to compensation arose, if at all, upon physical damage to the claimant’s land or substantial interference with an easement.

(2) Whether the types of costs and losses claimed by the Claimant are matters were compensatable under section 10 of the Compulsory Purchase Act 1965 or whether compensation can only be awarded under section 10 for the diminution in the open market value of land or interests in land.

The Tribunal said that personal losses, business or otherwise, are not recoverable under s.10 of the 1965 Act. However, business losses which affect land value are recoverable.

There was no reason why the compensation payable under s.10 of the 1965 Act should not include the cost of remedial work.

This was so self evidently correct that acquiring authorities had never disputed it, so there was no case in which this had ever been an issue.

In past cases, the cost of repairing physical damage to the property was regarded as a loss in value of the land.

However, the landowner is entitled to no more than fair and reasonable compensation and is under an obligation to mitigate his loss.

Where the cost of remedial works is more than the diminution in value of the land the diminution in value of the land may be the proper yard stick for compensation.

However, this may not always be the case as other factors may be relevant. It may be reasonable to repair a building even though the works exceed the diminution in value of the land if the building’s heritage value is more than it’s financial value.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Inaccessibility of Landlord did not dispense with consent requirement

A tenant’s covenant not to carry out alterations without the landlord’s consent is not a covenant by the landlord to give consent, or to be available to receive requests for consent.

If the landlord cannot be found, so that consent cannot be requested, the tenant may not carry out the alterations without being in breach of covenant.

In relation to residential tenancies, section 47(1) of the Landlord and Tenant Act 1987 (“the 1987 Act”) requires that a landlord’s name and address be included in every demand for rent and other sums payable by a tenant to his or her landlord.

Section 48(1) of the 1987 Act also requires tenants to be supplied with an address in England and Wales at which they may communicate with their landlord, including in connection with proceedings.

Where a landlord fails to comply with either section 47(1) or 48(1), sections 47(2) and 48(2) say any rent, service charges or administration charges otherwise due from the tenant to the landlord are treated as not being due until the particular requirement is complied with.

In the Upper Tribunal (Lands Chamber) case of Raja v Aviram [2016] no rent or service charge was demanded by Mr Raja and he supplied no address to Mr Aviram.

The Tribunal said no statute said that a failure by a landlord to provide a name and address meant that a tenant could carry out alterations or take other prohibited steps without the requirement to obtain the landlord’s consent.

Here, Mr Raja could have obtained the name and address of his landlord by searching the Land Register, which he did at one point.

Even if he did not have that address by the time the works were carried out, there was simply no basis on which he was excused the obligation of seeking consent just because his reasonable efforts to locate his landlord had been unsuccessful.

A breach of covenant had been committed by the creation of at least one new hole in the wall of the building for a replacement boiler without the consent of Mr Raja.

This was still the case even though Mr Raja would have consented when satisfied that the work was to be carried out competently.

A modest breach of covenant had been committed. Given the circumstances of that breach it was extremely unlikely that this valuable lease could be forfeited without relief against forfeiture being granted. Though Mr Raja might have been entitled to nominal damages if he had gone to court.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Right to manage: notice of invitation to participate invalid

The purpose of a notice of invitation to participate under section 78 of the Commonhold and Leasehold Reform Act 2002 is to afford to all qualifying tenants of flats in the premises the opportunity to become members of a right to manage (“RTM”) company. Qualifying tenants are entitle to membership (section 74(1)(a)) and in order to give effect to that entitlement the RTM company is required to inform all qualifying tenants who are not already members of its existence, present membership and intentions.

In the Upper Tribunal (Lands Chamber) case of Triplerose Ltd v Mill House RTM Company [2016] the RTM Company was formed in 2011 and gave notices of invitation to participate to each of the qualifying tenants of the 6 flats on 19 March 2013. The notices of invitation to participate wholly omitted the notes which should have been included as part of the prescribed form.

The Tribunal said that the inclusion of the notes in the prescribed form was essential to the validity of a notice of invitation to participate.

So the documents served on the qualifying tenants, having omitted the notes in their entirety were not notices of invitation to participate in accordance with section 78.

Therefore the RTM company could not under section 79(2) give a claim notice seeking to acquire the right to manage.

So the RTM Company had not acquired a right to manage.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: Dangers of delaying Judicial Review applications

CPR Part 54.5(5) provided with effect from 1 July 2013:

“Where the application for judicial review relates to a decision made by the Secretary of State or a local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose.”

In Gerber, R (on the application of) v Wiltshire Council & Ors [2016], at the time the Council took its decision to grant planning permission the CPR Part 54.5(1) applied also to such applications and provided:

“The claim form must be filed –

(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first arose.”

The court had a discretion under CPR Part 3.1(2)(a) to extend time for compliance with this rule.

Section 31(6) of the Senior Courts Act 1981 provides that the court “may” refuse to grant relief where “the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person” or where it “would be detrimental to good administration.”

The Court of Appeal said where a judge at first instance has interpreted the law correctly and has had regard to relevant considerations the court would not overturn his exercise of discretion under section 31(6) unless the ultimate conclusion reached was clearly wrong and outside the range of legitimate choices which might be made in the circumstances.

The Council had posted notices of the planning application at prominent places in the vicinity of the site in accordance with article 13 of the Town and Country Planning (Development Management Procedure) Order 2010, including at the end of the lane leading to Mr Gerber’s Hall but he had not noticed them. Notice of the application was also given in the local newspaper, and on the Council’s website, but Mr Gerber did not know about the application until he noticed development work being carried out on the site on 19 March 2014, when he discovered that an application for planning permission had been made and had been granted.

On 20 March 2014 he wrote an email to the Council to object to the development on the grounds of the detrimental impact it had on the setting of his Hall. Eventually Mr Gerber commenced this claim for judicial review.

On 20 October 2014 Dove J granted permission for the application for judicial review to be brought.

The judge granted Mr Gerber an extension of time for bringing his claim. The judge found that the four substantive grounds of challenge were made out. The Court of Appeal agreed with three of them.

But the Court of Appeal said Mr Gerber had no proper grounds for delaying commencing legal proceedings as he did after 19 March 2014. The High Court judge had been wrong to extend time under CPR Part 54.5 for Mr Gerber to bring his judicial review claim.

As regards the exercise of the court’s discretion not to quash the planning permission, there was no need to rule on this further point but had the Court of Appeal allowed the extension of time and needed to substitute it’s own discretion, it would have said Mr Gerber had a fair opportunity to bring proceedings to challenge the planning permission in proper time but there was unjustified delay and the extent of the prejudice to the developers from quashing the planning permission militated decisively against this.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Deemed planning consent to change of use depends on existing use

Part 3, Class A of Schedule 2 of the Town and Country Planning (General Permitted Development) Order 2015 (the GPDO) permits development consisting of a change of use of a building from a use falling within Class A4 (drinking establishment) to a use falling within Class A1 (shops).

Noquet & Anor v Secretary of State for Communities and Local Government & Anor [2016] concerned a former public house last used as a mixed use of A1 (sale of wood burning stoves etc) and residential use. That mixed use was unauthorised under the planning rules.

The claimant’s case was that the rights under Part 3 operated so as to grant planning permission for change of use from A4 to A1 as the claimants were entitled to resume the A4 use of the property under section 57 (4) of the Town and Country Planning Act 1990.

The High Court said the claimant could not rely on the GPDO to grant deemed planning consent to a retail use. The fact that there had been actual A4 use in the past was irrelevant.

What had to be compared was the present use and the proposed use.

The court was not concerned to consider a notional A4 use which could be exercised without the need for further permission, as would be the position here should the claimants revert to use of the property as a public house, for which no planning permission would be required.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Duty of repair not to be equated with duty to make safe

A replacement staircase may have steep stairs and no handrail, which may make it unsafe to tenants and their visitors. But, if well constructed, it will not in any sense be “out of repair,” even if the absence of a handrail breached Building Regulations, and the staircase breached planning laws.

However, for liability to attach under section 4(1)-(3) of the Defective Premises Act 1972 (‘DPA’), the deficiencies in the property that cause the harm must have amounted to a “relevant defect” as defined in section 4(3) of the DPA. That is to say, the defect’s origin or continuance must have been due to an act or omission by the landlord which amounted to a failure by the landlord to carry out the landlord’s maintenance or repair obligations to the tenant. In some cases such failure may depend on the landlord having had notice of the defect.

Under section 4(4) of the DPA, where the landlord has the right to enter tenanted property to carry out maintenance or repair, and such right becomes exerciseable, the landlord may also be fixed with liability to third parties for those deficiences of maintenance or repair.

In Dodd v Raebarn Estates Ltd & Ors [2016] the rail less staircase, installed in breach of building regulations and planning laws, which the claimant fell down, were within the leased area, so the statutory hypothesis in section 4(4) applied, but whilst acknowledging that the rail less staircase was unsafe, the High Court said that because it was well constructed the accident was not due to any failure to carry out obligations as to the maintenance or repair of the premises and therefore the victim’s estate had no claim under section 4.

In it’s preoccupation with maintenance and repair rather than safety section 4 has left a gap denying justice to victims of unsafe property.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Building Contract: alternative time for Pay Less Notice implied

Under section 111(3) of Housing Grants, Construction and Regeneration Act 1996 (as amended) (“the Act”) a payer can serve pay less notices.

By sub-section (5) the pay less notice must be given “not later than the prescribed period before the final date for payment” but not before the notice by reference to which the notified sum is determined. That notice may be an invoice.

The Act requires the following sequence of events:

-a payment due date,
-service by the contractor of a notice stating the sum due within five days thereafter,
-service of a pay less notice (if required) by the employer not later than the “prescribed period” prior to the final date for payment and,
-finally, payment (of the sum stated in the last notice) on the final date for payment.

Section 111(7) provides that the “prescribed period” means either such period as the parties may agree or, in the absence of such agreement, the period provided by the Scheme for Construction Contracts (“the Scheme”), which is 7 days. So, if there has been no agreement as to the prescribed period, then it is 7 days.

In Manor Asset Ltd v Demolition Services Ltd (Rev 1) [2016] the dispute was about the non-payment of Demolition Services Ltd (DSL)’s invoice for 60% of the price which DSL issued on 23 October 2015, asserting that it had achieved the first milestone in accordance with the terms of the building contract. DSL said under the building contract “payment [was] to be made within 72 hours of receipt of invoice, issued when the milestone [was] achieved”, namely on or by 26 October 2015. So, it contended that the pay less notice issued by Manor Asset Ltd (MAL) on 28 October 2015 was invalid. The adjudicator said that MAL should have issued a pay less notice before 23 October 2015.

However the High Court said that the Act made it clear that the pay less notice could not be issued before the invoice to which it related.

Unless there was a compelling reason to give them any other meaning, the contract words “Payment to be made within 72 hours of receipt of invoice” were clear and unequivocal. They must be understood as referring to “the final date for payment.” They could not have been referring to the deadline for service of the pay less notice.

Clause 4.5.4 of the contract had said the prescribed period for service of the pay less notice expired on the date 5 days before the final date for payment. That date would have been non compliant with the Act and impossible since it would have been 21 October 2015. That date would have been two days before the notice stating the sum due which had only been afforded by the issue of the invoice.

On that reasoning the parties would have reached no agreement about the prescribed period, with the result it defaulted to the even more non compliant and impossible period ending “7 days” before the final date for payment, under the Act.

This was, therefore, a situation where the building contract made no express provision for what was to happen in relation to pay less notices.

It was therefore necessary to construe the contract or imply a term, that the prescribed period was to be “nil” – thus enabling MAL to serve a pay less notice at any time within 72 hours after receipt of the invoice. In other words, it could be served at any time between receipt of DSL’s invoice and the expiry of the 72 hours following such receipt.

MAL’s “pay less” notice dated 28 October 2015 was therefore out of time and DSL was entitled to summary judgment on it’s claim.

This blog is posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: inspector’s mistakes irrelevant to outcome of appeal

On an application for judicial review it is not for the court to second guess what the outcome of a planning appeal would have been if certain errors of law had not been made.

If that court finds errors of law and is inclined to exercise its discretion not to grant relief, it must be satisfied that the decision-maker would necessarily have reached the same decision even if the legal error had not occurred.

It is insufficient for the court to think that the decision:

– probably would have been the same, or
– very likely would have been the same, or
– almost certainly would have been the same

but for the decision-maker’s error.

It must be persuaded that the decision would necessarily have been the same.

In the Court of Appeal case of Secretary of State for Communities and Local Government v South Gloucestershire Council & Anor [2016] the planning inspector, on appeal, misconstrued the implications of paragraphs 47 and 49 of the National Planning Policy Framework which require there to be a five-year supply of land for housing in the council’s area, and planning permission was granted for a mobile caravan to the disadvantaged applicant and his family.

At first instance the High Court exercised its discretion to quash the planning permission.

On appeal the Court of Appeal said the High Court should not have quashed the planning permission.

– The personal circumstances of the applicant,
– the fact that the planning permission would have been merely personal to him, and
– the planning permission’s negligible impact either way on the objectively assessed housing
requirement for the area

were all factors which meant the planning inspector would have granted the planning permission even if the errors of law had not been made at the appeal.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Must a planning committee consider the availability of alternative sites?

Is the availability of a preferable alternative site for development a material planning consideration when a decision maker is considering a planning application?

In the Court of Appeal case of Smech Properties Ltd v Runnymede Borough Council & Anor [2016], planning permission had been granted for the mixed use redevelopment of part of a brownfield site.

The council planning officer’s report advised planning committee members that such availability was not a material consideration.

A nearby owner sought judicial review of the planning permission. One of their main objections was that this advice was wrong.

Disagreeing with that challenge, the High Court had, at first instance, said there is nothing in the Town and Country Planning Act or the Planning and Compulsory Purchase Act which forced a decision maker to have regard to alternative sites.

Nor was there anything in planning policy which expressly or impliedly obliged the decision maker to consider alternatives.

Generally, the fact that there is other land on which the proposed development would, for planning purposes, be more acceptable does not justify planning permission being refused upon an application site.

The fact that in this case the decision maker was considering inappropriate development in the greenbelt did not, of itself, require alternative sites to be considered.

The application site was previously developed land which was a key site specific characteristic. Any requirement to consider alternative sites risked ignoring that.

In fact, neither the neighbouring land owner nor any objector had suggested any site as an alternative for the development proposal as a whole.

On appeal from the High Court, the Court of Appeal said that the High Court judge had been entitled to conclude it “inevitable that if the planning committee had been properly advised about the position in relation to housing need in the Council’s area it would have made the same decision to grant planning permission for this development on the Green Belt.”

The Court of Appeal would not have thought her decision based on that assessment could be said to be “wrong”, even if the Court of Appeal might have made a different overall assessment of the position had the Court of Appeal been deciding the matter afresh.

As it happened, the Court of Appeal agreed with the High Court judge’s assessment.

Given the obligation of the Council “to comply with applicable national planning policy, the pressing nature of the objectively assessed housing need in its area and the especial suitability of the Site for development to make a significant contribution to meeting that need”, it was inevitable that, even if the Council’s planning committee had been properly advised, it would still have decided to grant planning permission for the development.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Local Neighbourhood Plan did not have to meet district Objectively Assessed Housing Needs

How far does a Local Neighbourhood Plan (“LNP”) have to have regard to national planning policy in allocating land for dwellings?

In Crownhall Estates Ltd, R (on the application of) v Chichester District Council & Ors [2016] it was argued that the indicative figure of 60 given in the local plan for Loxwood was too low because of that plan’s failure to meet the Objectively Assessed Housing Requirement (“OAN”) for the district consistently with the requirements of Paragraph 47 of the National Planning Policy Framework (“NPPF”) and that therefore more than 60 new homes should be provided in the LNP.

However the High Court said that reference to paragraph 47 of the NPPF was erroneous in the context of LNP preparation. Whilst that national policy was concerned with the responsibilities of local planning authorities in preparing local plans, it was not concerned with the responsibilities of parish councils preparing neighbourhood plans.

Moreover, the claimant’s argument was inconsistent with the statutory and policy framework.

There had been no requirement for the LNP to meet the full OAN, which is a concept related to a “housing market area” – typically the district covered by a local planning authority, if not larger.

The court approved the local planning authority’s statement that “OAN estimates are based upon demographic projections for the district as a whole and “cannot be readily disaggregated to the level of individual parties on settlements, or to sub-areas of the district.””

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.