Monthly Archives: April 2016

Owner owed measured duty of care to contain damp

A person may owe a “measured duty of care” to take reasonable steps to resolve or reduce hazards on that person’s land, which that person either foresaw, or which that person ought reasonably to have foreseen.

Such a liability is to be assessed by reference not only to what the person actually foresaw, but to what the person ought reasonably to have foreseen.

In Bridgland & Anor v Earlsmead Estates Ltd [2016] an old works had been demolished next to the end gable of a terraced house. The house suffered from damp which the owner blamed on the demolition.

The owner pleaded that it was caused by “surface water” i.e. rain water penetrating the upper parts of the now exposed flank wall, and then percolating down inside the flank wall.

But the Technology and Construction Court found that to a significant and/or material extent, the damp to the lower part of the flank wall was caused by penetration of lateral ground moisture coming from the soil or material underneath the ground floor slab of the old works. The hygroscopic salts which had been found inside the house could only have been caused by that.

Given the advice the defendant’s surveyor had given it the defendant either did foresee, or ought reasonably to have foreseen:

1. that the state or condition of it’s property was causing damage to the adjoining house; and

2. that there was at least one reasonable remedial scheme, which their surveyor had identified, (internal tanking) which it could have carried out at it’s own expense to remedy that damage, and which would have been reasonable for the defendant to have implemented in all the circumstances.

In breach of duty the defendant did not take steps to implement and/or pay for that remedial scheme.

However, damage by long-standing lateral ground moisture was not pleaded by the claimants at the earlier proceedings, and so the issue of what was, or should have been, foreseen in those circumstances was not considered at trial.

Instead, the claimants’ case had focused on what was foreseeable in the context of the demolition of the former Trafalgar Works.

So it was difficult, if not impossible, to know what issues on foreseeability might have arisen had the claimants pleaded the correct cause of the damage.

The defendant won the case because the claimants’ pleadings had failed to identify the correct cause so the defendant had successfully defended against those pleadings even though the damage to the claimants’ house had always been caused by long-standing lateral ground moisture coming from the soil or material underneath the defendant’s property.

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

CPO Valuation: Tribunal deletes Affordable Housing assumption

Where land is compulsorily acquired the owner can apply under section 17 of the Land Compensation Act 1961 (“the 1961 Act”) for a certificate of appropriate alternative development (“CAAD”).

In the Upper Tribunal (Lands Chamber) case of Mintblue Properties Ltd, Re: Car Park of former E-Mag Factory [2016] the Welsh Government had made a compulsory purchase order against the Car Park of the former E-Mag Factory Brynmawr, Blaenau Gwent (“the appeal site”). The appellant, Mintblue Properties Ltd, made a section 17 application to Brecon Beacons National Park Authority (“BBNPA”) as the local planning authority. The application specified that in the appellant’s opinion residential development would be appropriate alternative development in relation to the appeal site for the purposes of section 14 of the 1961 Act.

BBNPA issued a CAAD certifying that various classes of development would have been granted planning permission if the acquiring authority had not proposed to compulsorily acquire the appeal site.

The appellant appealed to the Tribunal against the CAAD. The only dispute was about the limitation which BBNPA had imposed on the C3 residential use. The appellant said there was no justification for limiting that use to 100% affordable housing which would have massively depreciated the compulsory purchase valuation of the land.

So the Tribunal was required to determine whether, on the balance of probabilities, planning permission for the residential development of the appeal site, with no requirement for any affordable housing, could reasonably have been expected to be granted on the relevant date in the circumstances known to the market on that date and on an application decided on that date or at a time after that date (section 14(4) of the 1961 Act). That issue had to be determined in accordance with the development plan unless material considerations indicated otherwise.

The Tribunal said at the relevant date:

(i) The development plan was the Brecon Beacons National Park Local Development Plan (“the LDP”);

(ii) The appeal site was shown as countryside in the LDP but adjoined a site identified as a residential commitment (the former E-Mag factory site); and,

(iii) The former E-Mag factory site had planning permission for residential development subject to an affordable housing element of 20%.

The Tribunal said the existence of an extant residential planning permission on the adjoining E-Mag factory site was a material consideration to which significant weight should be given.

BBNPA had seemingly failed to accord any weight to this planning permission, relying instead upon an interpretation of Policy 29 of the LDP: “Affordable Housing Exceptions”.

BBNPA’s reliance upon this policy was misdirected for a number of reasons:

(i) The appeal site adjoined and formed a logical extension to the settlement of Brynmawr which was not in the Brecon Beacons National Park but in the neighbouring authority of Blaenau Gwent County Borough Council;

(ii) There was no proven need for affordable housing that could not be met in any other way;

(iii) There was no housing needs survey; and,

(iv) Policy 28 of the LDP said that no affordable housing contributions were required in the Heads of the Valleys and Rural South Submarket in which the appeal site was located.

The appeal site was in a sustainable location and, the Tribunal was satisfied on the balance of probabilities that if the road scheme was cancelled, the appeal site could reasonably have been expected to be granted planning permission for residential development without dependence upon Policy 29, which the Tribunal did not consider to be applicable.

The 20% affordable housing policy that was in force when planning permission was granted for the former E-Mag factory site in 2012, no longer applied at the relevant date. Instead Policy 28 had been introduced and it expressly required no affordable housing for developments, such as could have been expected at the appeal site.

The Tribunal varied the CAAD issued by BBPNA so as to delete the parenthesis “(as a 100% affordable housing development on an exception site in the countryside)” as it applied to C3 -residential use.

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

VAT: Construction work to residential personal care home zero rated

A hospital is an institution within (a) building(s) providing medical treatment and associated care, usually on a short term basis for the treatment, cure or betterment of a medical condition. Work in the construction of such a building is disqualified from VAT zero rating under Section 30(2) and Item 2 and Note 4 of Group 5 to Schedule 8 of the Value Added Tax Act 1994.

The disqualification applies to “use as a hospital, a prison or similar institution or an hotel, inn or similar establishment”.

But the recent First-tier Tribunal (Tax) case of Pennine Care NHS Trust v Revenue and Customs [2016] said you need to distinguish from this a home or institution providing residential accommodation with “personal care” for those needing it – usually by way of long-term residence. They said much turns on the facts but the hospital etc disqualification does not necessarily apply to this. In that case the construction work was zero rated and the NHS Trust could not be required to pay VAT on it.

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

Contracts: Duty to use reasonable endeavours can survive cut-off date

Where a sale contract is conditional on one party obtaining an acceptable planning permission and that party agrees to use all reasonable endeavours to fulfill that condition as soon as possible, that party will not be allowed to exercise any right to cancel the contract that arises because the Condition was not fulfilled by a “Cut-off Date”, if the reason for non-fulfillment was that party’s own breach of that obligation.

That principle was reaffirmed by the Court of Appeal in Bristol Rovers (1883) Ltd. -v- Sainsbury’s Supermarkets Limited (2016).

But in that case Sainsbury’s were not guilty of any breach of their contractual obligations and that principle did not prevent them from cancelling the contract.

However the court did make it clear that Sainsbury’s obligation to use all reasonable endeavours survived the “Cut-off Date” and lasted right up to the point where they actually exercised their right of cancellation.

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