REAL INSIGHT - Property Update - September 2011
unplanned headlines
Planning is enjoying a high profile in the national media. Developers have moved from serious concern over localism empowering Nimbys to defending Government ministers against Middle England. What on earth is going on with the planning reforms?
The realities of the Bill do not live up to the worst fears of the industry, although challenges will certainly remain. Localism places as many burdens on local councils and neighbourhoods as it grants powers. With Royal Assent expected in November, the principle of financial incentives being material considerations looks likely to survive: ministers insist it simply states the status quo and minimises the risk of judicial review where the New Homes Bonus has been a driver for growth.
Councils have been calling for the promised powers to set their own planning fees in the light of cuts. Westminster is a leading example where fees barely meet half of the costs of the department. Some brave businesses have even supported such calls when faced with the real risk of loss of planning expertise and capacity.
The NPPF has caused most of the furore, with the National Trust, CPRE and several newspapers attacking the new "presumption in favour of sustainable development", which critics have claimed is a developer’s free-for-all.
It is easy to forget in the debate that councils with up-to-date local plans do not apply the presumption. Their plans will be specific to their area and planning minister Greg Clark has clearly indicated that transitional provisions will give councils who are actively trying to adopt plans time to complete the process. Any time window for a free-for-all may be very short indeed. However, the National Trust’s campaign is a stark illustration of the risks for Councils not embracing their localism duties.
Critics are also concerned that in trimming over 1,000 pages of policy down to a mere 58, key principles have been lost. Debates rage over the difference between land of least environmental value and brownfield land, and over the relative weight between growth and protection.
But the nuances of single words or phrases in planning polices have always been argued over, so why should the current consultation be any different?
Construction Alert: get your Act together
From 1 October 2011, the law regarding payments under construction contracts and the resolution of construction disputes by statutory adjudication will change. As a consequence, the terms of all construction contracts (including consultants' appointments) will need to be amended.
Published construction contracts are to be updated. The JCT has already issued a revised suite of its building contracts (the 2011 edition) addressing the changes in the law. Contracts that are not updated will have default terms implied into them.
The changes come into force by way of the Local Democracy, Economic Development and Construction Act 2009 which amends the Housing Grants, Construction and Regeneration Act 1996. The amended Act will now apply to oral contracts (previously it applied only to contracts in writing or evidenced in writing). This means that parties will now be able to refer disputes under oral construction contracts to adjudication, which in turn will lead to a higher reliance on witness evidence.
Contracts with residential occupiers are still excluded.
Payments will now be triggered by a notice given by the payer or the payee. If the payer fails to provide a payment notice when required, the payee may issue their own payment notice. So, in some circumstances, payments will be triggered by notices issued by contractors and sub-contractors, not just by employers and their representatives.
When payment has been triggered, the payer may give notice that they will pay less than the specified sum stated in the notice with reasons, otherwise the original sum must be paid without any deduction. Failure to do so can result in adjudication, summary judgment or suspension of work pending payment.
If you require advice on these new changes please contact Simon Hunter.
Vacant Response
One frustrating thing about our job is not being able to give a straight answer to a straight question. A common query to which the judiciary continuously fails to provide concrete guidance is the issue of what constitutes vacant possession.
The topic may seem theoretical, but it is important that both tenants and landlords understand the obligation to deliver up a property with vacant possession. A majority of break clauses will be conditional upon this obligation.
The recent case of NYK Logistics (UK) Ltd v Ibrend Estates BV [2011] EWCA Civ 683 provides useful guidance. Here, the Court of Appeal described vacant possession as follows:
- 1.the property is empty of people;
- 2.a purchaser (or if necessary a landlord) is able to assume and enjoy immediate and exclusive possession, occupation and control of the property;
- 3.the property is empty of chattels;
- 4.if any chattels are left in the property they must not substantially prevent or interfere with the enjoyment of the right of possession of a substantial part of the property.
This formulation still means that judgment is required. If you are having to consider this issue, let us know – although we may not be able to answer "yes" or "no", we will help devise the best strategy possible. Contact Jonathan Warren with any queries.
To catch a thief
Databases are vulnerable to theft and misuse, and data theft can severely damage the financial performance of a business. Since mid 2010, we have seen a rapid increase in the number of data theft cases in the property sector as the market shows increasing signs of recovery.
If databases are misappropriated, it is best to act immediately to try to avoid significant or irreparable loss to the company. The main aim is to protect the existing business before it moves elsewhere, not to pursue a large damages claim.
If there is strong evidence of misappropriation and misuse of the database, it may be possible to obtain a High Court application for an injunction. Various types of injunctions are available:
- an order for the immediate delivery up of the misappropriated material to a solicitor;
- a restraining injunction prohibiting the use of the confidential information;
- an imaging order, which requires the defendant company and/or individual to take a copy of its computer systems so as to preserve any evidence of wrongdoing; or
- a search order, which is the more powerful of all orders.
If you believe data has been stolen, act quickly. Click here for our recent Estates Gazette article (subscription required) or contact Robert Wynn Jones for more information.
The real deal: olympic village investment
Mishcon de Reya has advised the joint venture of Delancey and Qatari Diar on the purchase and long-term management of the Olympic Village. The village will create a neighbourhood for east London that will deliver high quality new homes, education and healthcare facilities, new parklands, public squares and open space. For more details please click here.